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Kelvin X. Singleton v. A. Hedgepath

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 23, 2011

KELVIN X. SINGLETON,
PLAINTIFF,
v.
A. HEDGEPATH, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE (Doc. 177.) ORDER STRIKING PLAINTIFF'S REPLY, SURREPLY, AND STATEMENT OF UNDISPUTED FACTS (Docs. 175, 176.)

I. BACKGROUND

Kelvin X. Singleton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original Complaint on January 18, 2008. (Doc. 1.) This action now proceeds on the Second Amended Complaint filed on February 12, 2009, against defendants Chief Medical Officer ("CMO") A. Youssef, CMO S. Lopez, Dr. J. Akanno, Dr. S. Qamar, Dr. Vasquez, Registered Nurse ("RN") II M. Ali, and RN II M. Wright-Pearson ("Defendants") for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. (Doc. 26.)

II. DEFENDANTS' MOTION TO STRIKE

On May 5, 2011, Defendants filed a motion to strike Plaintiff's reply, surreply, and statement of undisputed facts filed on April 27, 2011. (Doc. 177.) Defendants argue that Plaintiff's reply and surreply should be stricken because neither the Federal Rules of Civil Procedure nor the Local Rules provide for a response to a moving party's surreply. Defendants argue that Plaintiff's statement of undisputed facts should be stricken as untimely.

Plaintiff's Reply and Surreply

On April 27, 2011, Plaintiff filed a document entitled "Plaintiff's Reply and Surreply to His Motion For Partial Summary Judgment and Defendant's Cross-Motion for Summary Judgment."

(Doc. 175.) The document consists of a Reply to Defendants' opposition to Plaintiff's motion for partial summary judgment, and a Surreply to Defendants' reply to Plaintiff's opposition to Defendants' cross-motion for summary judgment.

Plaintiff's Reply is untimely. Local Rule 230(l). Moreover, Plaintiff already filed a prior Reply to Defendants' opposition on March 16, 2011. (Docs. 156, 157, 159.)

With respect to Plaintiff's Surreply, the Local Rules only provide for a motion, an opposition, and a reply, and neither the Local Rules nor the Federal Rules provide the right to file a surreply. In this case, the Court has not requested a surreply from Plaintiff nor granted a request on the behalf of Plaintiff to file one.

Accordingly, Plaintiff's Reply and Surreply, filed April 27, 2011, shall be stricken from the record.

Plaintiff's Statement of Undisputed Facts

On April 27, 2011, Plaintiff filed a Statement of Undisputed Facts in support of his opposition to Defendants' cross-motion for summary judgment. (Doc. 176.) Plaintiff's Statement is untimely because the deadline for opposition to Defendants' cross-motion has expired. Local Rule 230(l). Moreover, Plaintiff already filed a prior Statement of Undisputed Facts in support of his opposition on March 25, 2011. (Doc. 164.) Therefore, Plaintiff's Statement of Undisputed Facts, filed April 27, 2011, shall be stricken from the record.

III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's Reply and Surreply, filed on April 27, 2011, are STRICKEN from the Court's record (Doc. 175); and

2. Plaintiff Statement of Undisputed Facts, filed on April 27, 2011, is STRICKEN from the Court's record (Doc. 176).

IT IS SO ORDERED.

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20110523

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