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Mello v. Martinez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 17, 2009

WILLIAM DOUGLAS MELLO, PLAINTIFF,
v.
J. R. MARTINEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE (Doc. 28.)

ORDER STRIKING SURREPLY (Doc. 27.)

Plaintiff William Douglas Mello ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on September 9, 2006. (Doc. 1.) The parties have consented to the jurisdiction of a United States Magistrate Judge, and on April 2, 2009, this action was assigned to the undersigned for all further proceedings including trial and entry of judgment. (Docs. 4, 15, 31, 32.) This action now proceeds on Plaintiff's second amended complaint, filed December 22, 2008, against defendants C/O J. R. Martinez and C/O Riagoza ("Defendants"), for violating Plaintiff's rights to freely exercise his religion under the First Amendment and RLUIPA.*fn1 On July 30, 2009, Defendants filed a motion to dismiss the complaint for Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 22.) On August 10, 2009, Plaintiff filed an opposition to the motion. (Doc. 24.) On December 1, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 65.) On August 31, 2009, Plaintiff filed a surreply. (Doc. 27.) On September 2, 2009, Defendants filed a motion to strike Plaintiff's surreply as improper. (Doc. 28.)

Defendants argue that under Local Rule 78-230(m), Plaintiff's surreply should be stricken as improper on the ground that neither the Federal Rules of Civil Procedure nor the Local Rules provide for surreplies, and the Court has not ordered a surreply.

Defendants' argument has merit. The Local Rules provide for a motion, an opposition, and a reply. See Local Rule 78-230. Neither the Local Rules nor the Federal Rules provide the right to file a surreply, and the Court neither requested one nor granted a request on the behalf of Plaintiff to file one. Therefore, Plaintiff's surreply is improper, and Defendants' motion to strike shall be granted.

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Defendants' motion to strike, filed September 2, 2009, is GRANTED; and

2. Plaintiff's surreply, filed August 31, 2009, is STRICKEN from the record.

IT IS SO ORDERED.


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