(PC) Peyton v. Kibler et al

Filing 87

ORDER signed by Magistrate Judge Kendall J. Newman on 11/13/2023 DENYING 86 Motion for Extension of Time to file a sur-reply. Plaintiff is not authorized to file a response to 85 Reply. (Lopez, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE EDWARD PEYTON,

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Plaintiff,

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v.

No. 2:21-cv-0719 DAD KJN P

ORDER

BRIAN KIBLER, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se. Defendants’ motion for summary judgment

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is fully briefed and submitted for decision. On November 6, 2023, plaintiff filed a request for an

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extension of time to file a response to defendants’ reply, known as a sur-reply. As discussed

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below, plaintiff’s request is denied.

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Background

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Defendants’ motion for summary judgment was filed on December 15, 2022. (ECF No.

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71.) On January 6, 2023, the undersigned stayed defendants’ motion and briefing thereon

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pending resolution of plaintiff’s request for reconsideration. (ECF No. 73.)

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On August 23, 2023, the district court denied plaintiff’s motion for reconsideration.

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On September 7, 2023, the parties were directed to complete briefing on the pending motion for

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summary judgment. (ECF No. 79.) Plaintiff sought an extension of time to file his opposition,

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and on October 10, 2023, plaintiff was granted an additional 21 days to do so. (ECF No. 82.)

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On October 11, 2023, plaintiff filed his opposition (ECF No. 83 at 1-22), statement of

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disputed facts (ECF No. 83 at 23-27), and 251 pages of exhibits, including his declaration (ECF

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No. 83 at 31-34). (ECF No. 83.)

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Defendants filed their reply on October 25, 2023. (ECF No. 85.)
Sur-Replies

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The Local Rules provide for a motion, an opposition, and a reply, and do not authorize the

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routine filing of a sur-reply. E.D. Cal. L.R. 230(l). Nevertheless, a district court may allow a sur-

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reply but only “where a valid reason for such additional briefing exists, such as where the movant

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raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal.

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2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) (granting the motion

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to strike the sur-reply because “defendants did not raise new arguments in their reply that

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necessitated additional argument from plaintiff, plaintiff did not seek leave to file a sur-reply

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before actually filing it, and the arguments in the sur-reply do not alter the analysis below”),

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adopted, 2013 WL 5156572 (E.D. Cal. 2013).
Here, defendants did not raise new arguments or cite new evidence in their reply brief.

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Indeed, plaintiff does not seek leave to file a sur-reply based on any alleged new arguments;

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rather, plaintiff contends that the reply contains “several misstatements of record facts” and

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“misstatements of law,” all concerning the merits of the case. (ECF No. 86 at 2.) Because

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defendants did not raise new arguments in their reply no additional argument by plaintiff is

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required for the court to address defendants’ motion. Plaintiff’s request for an extension of time

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to file a sur-reply is denied because no sur-reply is needed by the court.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for extension of time to

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file a sur-reply (ECF No. 86) is denied; plaintiff is not authorized to file a response to defendants’

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reply.

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Dated: November 13, 2023

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peyt0719.den