(PC) Harper v. Ramos ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DARCY AARON HARPER, 1:17-cv-00606-DAD-GSA-PC 10 Plaintiff, ORDER STRIKING IMPERMISSIBLE SURREPLY 11 v. (ECF No. 42.) 12 DR. RAMOS, et al., 13 Defendants. 14 15 I. BACKGROUND 16 Darcy Aaron Harper (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 17 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds against 18 defendants Htay, Ramos, and Varanisi for providing inadequate medical care in violation of the 19 Eighth Amendment. 20 On January 8, 2021, defendant Varanisi filed a motion for summary judgment. (ECF No. 21 34.) On February 2, 2021, Plaintiff filed an opposition to the motion. (ECF No. 37.) On February 22 9, 2021, defendant Varanisi filed a reply to Plaintiff’s opposition. (ECF No. 38.) 23 On February 24, 2021, Plaintiff filed a response to defendant Varanisi’s reply. (ECF No. 24 42.) The court construes Plaintiff’s response to defendant Varanisi’s reply as an impermissible 25 surreply. 26 II. SURREPLY 27 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 28 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 1 March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the 2 Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow 3 a surreply to be filed, but only “where a valid reason for such additional briefing exists, such as 4 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 5 *1 (E.D.Cal. Nov. 8, 2005). 6 Plaintiff’s response to defendant Varanisi’s reply is a surreply because it was filed on 7 February 24, 2021, after defendant Varanisi’s motion was fully briefed. The motion for summary 8 judgment was fully briefed and submitted on the record under Local Rule 230(l) on February 9, 9 2021 when defendant Varanisi a reply to Plaintiff’s opposition. (ECF No. 38.) In this case the 10 court neither requested a surreply nor granted a request on behalf of Plaintiff to file a surreply. 11 Plaintiff has not shown good cause for the court to allow him to file a surreply at this juncture. 12 Therefore, Plaintiff’s surreply shall be stricken from the record.1 13 III. CONCLUSION 14 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on 15 February 24, 2021, is STRICKEN from the court’s record. 16 17 IT IS SO ORDERED. 18 19 Dated: March 2, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 1 A document which is ‘stricken’ will not be considered by the Court for any purpose.” 28 (Informational Order, ECF No. 4 at 2 ¶II.A.)