(PC) Miller v. Soto ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER J. MILLER, Case No. 1:20-cv-01117-AWI-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO FILE A SURREPLY 12 v. (ECF No. 69) 13 SERGEANT M. SOTO, 14 Defendant. 15 16 Plaintiff Christopher Miller is proceeding pro se and in forma pauperis in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion to file a surreply, filed August 26, 2022. 19 Parties do not have the right to file surreplies and motions are deemed submitted when 20 the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to 21 file a surreply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at 22 *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes–Benz USA, LLC, 366 F.Supp.2d 1190, 1197 23 (N.D. Ga. 2005)). However, district courts have the discretion to either permit or preclude 24 a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 25 2009) (district court did not abuse discretion in refusing to permit “inequitable surreply”); JG v. 26 Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse 27 discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an opportunity to respond). In this Circuit, courts are required to afford pro se litigants additional leniency. Wilhelm 4 v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th ° Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). This leniency, however, does not extend to permitting surreplies 7 as a matter of course and the Court is not generally inclined to permit surreplies absent an articulation of good cause why such leave should be granted. Here, Plaintiff seeks leave to file a surreply “[b]ecause the Defendant’s version of the 10 facts disagree so strongly with Plaintiff's, and because the issue of summary judgment is so gravely important, Plaintiff requests the opportunity to reply.” (ECF No. 69.) Plaintiff's simple 2 desire to have the final word is not an adequate basis upon which to allow him to file a surreply. See Garcia v. Biter, 195 F.Supp.3d 1131, 1134 (E.D. Cal. 2016) (denying plaintiff's motion for i leave to file a surreply because defendants did not raise new issues or arguments, but rather “cited to the record, their motion ...various legal authorities and substantively addresse[d] those new issues raised by plaintiff in his opposition.”). As Plaintiff has not offered any valid basis "7 upon which the Court should exercise its discretion to permit the filing of a surreply, Plaintiff's motion for leave to file a surreply is DENIED. 19 20 | IT IS SO ORDERED. A (Fe 71 | Dated: _ August 29, 2022 IF 2 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28