(PC) Spencer v. Milan ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, 1:20-cv-00682-JLT-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SURREPLY 13 vs. (ECF No. 55.) 14 RICHARD MILAN, 15 Defendant. 16 17 18 19 I. BACKGROUND 20 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds 22 against sole defendant Milam1 (“Defendant”) for subjecting Plaintiff to adverse conditions of 23 confinement in violation of the Eighth Amendment. 24 On November 14, 2022, Defendant filed a motion for summary judgment, which is 25 pending. (ECF No. 47.) On January 3, 2023, Plaintiff filed an opposition. (ECF No. 53.) On 26 January 11, 2023, Defendant filed a reply. (ECF No. 54.) 27 28 1 Sued as Milan. 1 On January 23, 2023, Plaintiff filed a motion for leave to file a surreply in response to 2 Defendant's reply brief. (ECF No. 55.) On January 24, 2023, Defendant filed an opposition. 3 (ECF No. 56.) Plaintiff did not file a reply to the opposition. The motion is now before the 4 Court. Local Rule 230(l). 5 II. MOTION FOR LEAVE TO FILE SURREPLY 6 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 7 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 8 June 9, 2022). The Local Rules provide for a motion, an opposition, and a reply. Neither the 9 Local Rules nor the Federal Rules provide the right to file a surreply. 10 Parties do not have the right to file surreplies and motions are deemed submitted when 11 the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to 12 file a surreply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at 13 *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes–Benz USA, LLC, 366 F.Supp.2d 1190, 1197 14 (N.D. Ga. 2005)). However, district courts have the discretion to either permit or preclude a 15 surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 16 2009) (district court did not abuse discretion in refusing to permit “inequitable surreply”); JG v. 17 Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse 18 discretion in denying leave to file surreply where it did not consider new evidence in 19 reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not 20 be considered without giving the non-movant an opportunity to respond). 21 In this Circuit, courts are required to afford pro se litigants additional leniency. E.g., 22 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 23 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. 24 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). This leniency, however, does not extend to 25 permitting surreplies as a matter of course and the Court is not generally inclined to permit 26 surreplies absent an articulation of good cause why such leave should be granted. 27 Here Plaintiff seeks leave to file a surreply to address a new argument in Defendant’s 28 reply brief. Plaintiff contends that Defendant asserted an argument/evidence for the first time 1 that “Spencer’s inmate appeal never mentioned anything about possible electrocution and that 2 inmate Lopez declaration does not specify where the alleged leak occurred.” (ECF No. 55.) 3 Plaintiff argues that “Plaintiff nor Defendant never stated in any documents where the alleged 4 leak occurred just stated in B section of dining.” (ECF No. 55 at 1.) 5 Defendant argues that his reply brief in support of his summary judgment motion did not 6 introduce any new evidence, and that Spencer’s argument does nothing to contradict Defendant’s 7 evidence that in April of 2020 correctional staff fixed the ceiling leak that Plaintiff was 8 complaining of. 9 After a review of the record, the Court finds that Defendant did not provide any new 10 evidence in the reply to Plaintiff’s opposition, nor did Defendant raise new issues or arguments. 11 Plaintiff has not offered a valid basis upon which the Court should exercise its discretion to permit 12 the filing of a surreply, and therefore, Plaintiff’s motion for leave to file a surreply shall be 13 DENIED. 14 III. CONCLUSION 15 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for leave to 16 file a surreply, filed on January 23, 2023, is DENIED. 17 IT IS SO ORDERED. 18 19 Dated: June 6, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28