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Exmundo v. Kane

May 6, 2010

EMILITO EXMUNDO, PLAINTIFF,
v.
R. KANE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE SURREPLY

(Docs. 29, 30)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST AND DISMISSING CERTAIN CLAIMS WITHOUT PREJUDICE

(Docs. 15)

Order

I. Background

Plaintiff Emilito Exmundo ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action was removed from state court on June 12, 2008. This action is proceeding on Plaintiff's complaint against Defendants R. Kane and Ross for retaliation in violation of the First Amendment and interference with medical care, in violation of the Eighth Amendment, and for violation of the California Constitution. On October 7, 2009, Defendants filed a motion to dismiss certain claims for Plaintiff's failure to exhaust administrative remedies, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure. (Doc. 15.) On January 4, 2010, after receiving an extension of time, Plaintiff filed his opposition. (Doc. 21.) On January 15, 2010, Defendants filed their reply. (Doc. 26, 27.) The matter is deemed submitted pursuant to Local Rule 230(l).*fn1

II. Plaintiff's Surreply

On February 1, 2010, Plaintiff filed his reply to Defendants' reply, also known as a surreply. (Doc. 28.) On February 8, 2010, Defendants filed a motion to strike the surreply. (Doc. 29.) On March 1, 2010, Plaintiff filed his opposition to Defendants' motion. (Doc. 30.)

Surreplies are generally not permitted in this Court. See Local Rule 230(l). The Court neither requested nor granted leave for Plaintiff to file a surreply. Accordingly, Defendants' motion to strike Plaintiff's surreply is GRANTED and the surreply is HEREBY ORDERED stricken.*fn2

III. Summary of Complaint

Plaintiff is currently incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff contends that on March 21, 2007, Defendant Kane wrote a false report alleging that Plaintiff was "cheeking"*fn3 his medication. Plaintiff contends this was done in retaliation for Plaintiff filing grievances against Kane for making him stand in line for a long time before receiving his medication, and for not referring him to a pain specialist and ophthalmologist. Plaintiff contends that on May 24, 2007, Defendant Kane refused to give him his medication. On January 26, 2008, Defendant Kane again refused to give Plaintiff his medication.

Plaintiff contends that on December 2 to December 19, 2007, Plaintiff was not given his pain medications or seizure medication. Plaintiff contends that he suffered a seizure as a result of the deprivation. Plaintiff contends that Defendant Ross wrote a false report alleging that on November 20, 2007, Plaintiff was cheeking his medications. Plaintiff contends this was done as retaliation for Plaintiff writing a grievance against a correctional officer, and for ...


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