(PC) Hammler v. Lyons ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 1:19-cv-01650-AWI-GSA-PC 12 Plaintiff, ORDER STRIKING IMPERMISSIBLE SURREPLY 13 vs. (ECF No. 73.) 14 J. LYONS, et al., 15 Defendants. 16 I. BACKGROUND 17 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 19 First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals 20 Coordinator) (“Defendant”) for violation of freedom of speech under the First Amendment.1 21 (ECF No. 12.) 22 On March 4, 2022, Defendant filed a motion for terminating and monetary sanctions 23 against Plaintiff. (ECF No. 57.) On May 24, 2022, Plaintiff filed an opposition to the motion. 24 (ECF No. 68.) On June 10, 2022, Defendant filed a reply to the opposition. (ECF No. 70.) On 25 26 27 1 On July 27, 2021, the court dismissed all other claims from this case based on Plaintiff’s failure 28 to state a claim. (ECF No. 36.) 1 December 22, 2022, Plaintiff filed an addendum to his opposition to the motion. (ECF No. 73.) 2 The Court construes Plaintiff’s addendum to the opposition as an impermissible surreply. 3 II. SURREPLY 4 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 5 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 6 March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the 7 Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow 8 a surreply to be filed, but only “where a valid reason for such additional briefing exists, such as 9 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 10 *1 (E.D.Cal. Nov. 8, 2005). 11 Plaintiff’s addendum to his opposition to Defendant’s motion is a surreply because it was 12 filed on December 2, 2022, after Defendant’s motion was fully briefed. The motion for 13 terminating and monetary sanctions was fully briefed and submitted on the record under Local 14 Rule 230(l) on June 10, 2022, when Defendant filed a reply to Plaintiff’s opposition. (ECF No. 15 70.) In this case, the court neither requested a surreply nor granted a request on the behalf of 16 Plaintiff to file a surreply. Plaintiff has not shown good cause for the court to allow him to file a 17 surreply at this juncture. Therefore, Plaintiff’s surreply shall be stricken from the record.2 18 III. CONCLUSION 19 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on 20 December 22, 2022, is STRICKEN from the court’s record. 21 IT IS SO ORDERED. 22 23 Dated: January 4, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 2 A document which is ‘stricken’ will not be considered by the Court for any purpose.” 28 (Informational Order, ECF No. 16 at 2 ¶II.A.)