(PC) Brookins v. Dwivedi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, ORDER STRIKING IMPERMISSIBLE SURREPLY 13 vs. (ECF No. 79.) 14 RAJENDRA DWIVEDI, 15 Defendant. 16 17 I. BACKGROUND 18 Barry L. Brookins (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this case on May 10, 2018. (ECF No. 1.) This case now proceeds with Plaintiff’s 21 initial Complaint against sole defendant Dr. Rajendra Dwivedi (“Defendant”) for failing to 22 provide adequate medical care in violation of the Eighth Amendment. (Id.) 23 On February 8, 2021, Defendant filed a motion to dismiss this case pursuant to Rule 24 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (ECF No. 73.) On 25 March 4 and 5, 2021, Plaintiff filed an opposition to the motion. (ECF Nos. 74, 76.) On March 26 8, 2021, Defendant filed a reply to the opposition. (ECF No. 75.) 27 On April 5, 2021, Plaintiff filed a second opposition to the motion to dismiss. (ECF No. 28 79.) The court construes Plaintiff’s second opposition as an impermissible surreply. 1 II. SURREPLY 2 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 3 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 4 March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the 5 Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow 6 a surreply to be filed, but only “where a valid reason for such additional briefing exists, such as 7 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 8 *1 (E.D.Cal. Nov. 8, 2005). 9 Plaintiff’s second opposition to Defendants’ motion is a surreply because it was filed on 10 April 5, 2021, after Defendant’s motion was fully briefed. The motion to dismiss was fully 11 briefed and submitted on the record under Local Rule 230(l) on March 8, 2021 when Defendant 12 filed a reply to Plaintiff’s first opposition. (ECF No. 75.) In this case the court neither requested 13 a surreply nor granted a request on the behalf of Plaintiff to file a surreply. Plaintiff has not 14 shown good cause for the court to allow him to file a surreply at this juncture. Therefore, 15 Plaintiff’s surreply shall be stricken from the record.1 16 III. CONCLUSION 17 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on 18 April 5, 2021, is STRICKEN from the court’s record. 19 IT IS SO ORDERED. 20 21 Dated: June 9, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 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. 3 at 2 ¶II.A.)