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Ransom v. Martinez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 19, 2010

BRYAN E. RANSOM, PLAINTIFF,
v.
J. MARTINEZ, ET AL., DEFENDANTS.

ORDER DENYING PLAINTIFF'S MOTION TO AMEND OPPOSITION AND/OR REQUEST TO SUBMIT SURREPLY (Doc. 32) ORDER STRIKING PLAINTIFF'S AMENDMENT TO OPPOSITION AND/OR SURREPLY (Doc. 33) ORDER STRIKING DEFENDANTS' SURREPLY (Doc. 35)

Plaintiff Bryan E. Ransom ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 9, 2010, Defendants filed a motion to revoke Plaintiff's in forma pauperis status. (Doc. 24). On August 20, 2010 Plaintiff submitted an opposition and on August 27, 2010, Defendants filed a reply. (Docs. 29 & 31). On September 7, 2010, Plaintiff filed a motion to "amend Plaintiff's opposition" and Plaintiff submitted an "amendment" and/or surreply raising an imminent danger claim never before presented to the court. (Docs. 32 & 33). On September 14, 2010, Defendants have submitted a surreply to Plaintiff's September 7, 2010 "amendment" and or surreply. (Docs. 35).

Plaintiff and Defendants do not have a right to file a surreply under the Local Rules or the Federal Rules of Civil Procedure. Plaintiff cannot now add a never before presented imminent danger claim in this action in an attempt to prevent revocation of his in forma pauperis status. See e.g., Wasco Products, Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 992 (9th Cir. 2006) (finding that opposition to movant's motion is not procedural second chance to add a new claim). Even if the Court were to entertain Plaintiff's "amendment" and/or surreply, Plaintiff's fear of potentially being peppered sprayed for his future refusal to obey the strip search orders of prison officials does not fall within the imminent danger exception. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

Therefore, Plaintiff's motion to file a surrply and/or motion to amend opposition to add an argument never previously raised is DENIED. (Doc. 32). Furthermore, Plaintiff's "amendment" and/or surreply in addition to Defendants' surreply are ORDERED STRICKEN from the record. (Docs. 33, 35).

IT IS SO ORDERED.

20101119

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