(PC) Shepard v. Borum ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT SHEPARD, Case No. 1:18-cv-00277-DAD-HBK (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ CROSS MOTION TO STRIKE 13 v. (Doc. No. 73) 14 M. BORUM, J. ACEBEDO, 15 Defendant. 16 17 18 Pending before the Court is Plaintiff’s pleading titled “Motion to Dismiss Defendants’ 19 Motion for Summary Judgement and Grant Plaintiff’s Request in Full Due to Perjury,” which the 20 Court construes as an unauthorized surreply. (Doc. No. 72). In response, Defendants filed a 21 cross motion to strike, or in the alternative, opposition to the motion. (Doc. No. 73). 22 I. BACKGROUND 23 Plaintiff Lamont Shepard, a state prisoner, initiated this action on February 21, 20181 by 24 filing a pro se civil rights complaint under 42 U.S.C. § 1983 against Defendants M. Borum and J. 25 Acebedo. (Doc. No. 1). Plaintiff is proceeding on his first amended complaint. (Doc. No. 13). 26 1 The Court applies the “prison mailbox rule” to pro se prisoner complaint, deeming the pleading filed on 27 the date the prisoner delivers it to prison authorities for forwarding to the clerk of court. See Saffold v. Newland, 250 F.3d 1262, 1265, 1268 (9th Cir.2000), overruled on other grounds, Carey v. Saffold, 536 28 U.S. 214 (2002). 1 On May 23, 2019, Plaintiff filed a merits-based motion for summary judgment2 (Doc. No. 29) and 2 on July 8, 2019, Defendants filed an exhaustion-based motion for summary judgment. (Doc. No. 3 32). The court denied both motions for summary judgment. (See Doc. Nos. 49, 56 and 53, 64). 4 The case proceeded to discovery. Defendants filed a merits-based motion for summary judgment 5 on June 5, 2020. (Doc. No. 65). Plaintiff filed an opposition to Defendants’ merit-based motion 6 for summary judgment on June 14, 2020. (Doc. No. 67). And, Defendants filed a reply to 7 Plaintiff’s opposition on July 1, 2020. (Doc. No. 68). Thereafter, without requesting leave, 8 Plaintiff filed a the construed surreply on July 19, 2020. (Doc. No. 72). Separately, Plaintiff also 9 filed a second merits-based motion for summary judgment on June 9, 2020, which the court 10 accepted. (Doc. Nos. 66, 77). 11 II. APPLICABLE LAW AND ANALYSIS 12 As an initial matter, Plaintiff styles his surreply as a motion to dismiss. A motion to 13 dismiss is improper at this stage of litigation where both parties have conducted discovery and 14 moved for summary judgment. Compare Fed. R. Civ. P. 12 with Fed. R. Civ. P. 56. Defendants 15 urge the Court to strike Plaintiff’s filing because it is repetitive of Plaintiff’s other filings, or, in 16 the alternative, to construe Plaintiff’s filing as an unauthorized surreply and strike it from the 17 record. (See generally Doc. No. 73). 18 Neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern District 19 of California permit the filing of a surreply as a matter of right. See Garcia v. Biter, 195 20 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a 21 surreply under the local rules or under the Federal Rules of Civil Procedure). However, district 22 courts have discretion to permit, or preclude, a surreply. Id. at 1133 (other citations omitted). 23 While courts are required to provide pro se litigants leniency, the court generally views motions 24 for leave to file a surreply with disfavor and will not consider granting a motion seeking leave to 25 file a surreply absent good cause shown. Id. (other citations omitted). 26 27 2 Although Plaintiff titled his motion for summary judgment, in part, as a motion addressing exhaustion, 28 Plaintiff also addressed the merits of his case. (See generally Doc. No. 29). 1 Il. ANALYSIS 2 Here, Defendants’ motion for merits-based summary judgment was deemed submitted and 3 | ripe for review on July 1, 2020 when Defendants filed their reply to Plaintiff's opposition. (Doc. 4 | No. 68). Plaintiff then filed a surreply to Defendants’ reply. (Doc. No. 72). Plaintiff has not 5 || requested leave to file a surreply nor shown good cause to file a surreply. Because Federal Rule of 6 | Civil Procedure 12(f) authorizes the court to strike any insufficient defense, or any redundant, 7 | immaterial, impertinent, or scandalous matter, the court will grant Defendants’ motion and will 8 | strike Plaintiff's surreply. Accordingly, the court will not consider the arguments in □□□□□□□□□□□ 9 | surreply. (Doc. No. 72). 10 Accordingly, it is now ORDERED: 11 1. Defendants’ motion to strike plaintiffs surreply (Doc. No. 73) is GRANTED. 12 2. The Clerk of Court shall strike plaintiff's pleading titled “Motion to Dismiss 13 | Defendants’ Motion for Summary Judgement and Grant Plaintiff's Request in Full Due to 14 || Perjury” (Doc. No. 72), construed as a surreply. 15 16 IT IS SO ORDERED. Dated: __June 3, 2021 Mihaw. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28