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William Young Sutherland v. S. Herrmann


January 6, 2012



Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Several matters are pending before the court. On March 11, 2011, two of the four defendants in this action, defendants Parmar and Spinks, filed a motion for summary judgment. Plaintiff filed his opposition to that motion on April 11, 2011, and defendants filed a reply on April 15, 2011. On May 23, 2011, plaintiff filed a response to defendants' reply, and on June 13, 2011, plaintiff filed an amendment to his opposition and an amendment to the declaration appended to his May 23, 2011 response to defendants' reply brief. Defendants have moved to strike the latter three documents filed by plaintiff as unauthorized and impermissible surreply briefs.

Local Rule 230(1) authorizes the filing of an opposition to a motion and a reply brief in support of the motion, and provides that a motion is "deemed submitted twenty-eight (28) days after the service of the motion or when the reply is filed, whichever comes first." Local Rule 230(l) (E.D.Cal.). Plaintiff's May 23, 2011 response to defendants' reply, and his June 13, 2011 amendment to the declaration appended to that response, are not authorized and will therefore be stricken.

The court has reviewed plaintiff's June 13, 2011 proposed amendment to his opposition. The proposed amendment is missing the third page of plaintiff's opposition to the motion, missing nine pages from Exhibit D, and adds as Exhibit K a copy of plaintiff's complaint. Plaintiff is not required to tender a copy of his complaint as an exhibit in opposition to defendants' motion for summary judgment. See Fed. R. Civ. P. 56(c)(3) (at summary judgment court may consider other materials in the record). The June 13, 2011 proposed amendment to plaintiff's opposition adds no material necessary to plaintiff's opposition. It will therefore also be stricken.

On September 15, 2011, plaintiff filed a document styled "Petition to Persue [sic] Charges of Perjury Against M. Spinks and Subornation of Perjury Against Deputy Attorney General Jessica R. Devencenzi." Therein, plaintiff contends that throughout defendant Spink's responses to a set of interrogatories propounded by plaintiff, masculine articles of speech (such as "his") are used to refer to defendant Spink, when defendant Spink is in fact a female. It is clear in the record, and undisputed by defendants, that defendant Spink is female. Plaintiff's motion will be denied.

On October 24, 2011, plaintiff filed a motion for to reopen discovery, and on October 28, 2011, filed a motion for subpoenas duces tecums for service of discovery requests on non-parties. In his motion to reopen discovery, plaintiff contends that the time to conduct discovery in this action was inadequate to permit him to compel further responses to discovery from defendants and to serve subpoenas duces tecum on non-parties. The record reflects that plaintiff did timely file a motion to compel discovery responses which has been resolved by the court. See Order filed July 21, 2011 (Doc. No. 70).*fn1 The record also reflects that plaintiff has previously sought and been denied leave to serve subpoenas duces tecum. Id. In the motion now pending before the court, plaintiff does not provide any specific information concerning the of the discovery he would seek by the requested subpoenas or why such discovery is essential to his prosecution of this action. Therefore, plaintiff's motions will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Defendants' June 20, 2011 motion to strike filings (Doc. No. 69) is granted;

2. Docket Nos. 64, 66, and 67 are stricken;

3. Plaintiff's motion to pursue perjury charges (Doc. No. 76) is denied;

4. Plaintiff's motion for leave to reopen discovery (Doc. No. 78) is denied; and

5. Plaintiff's motion for subpoenas duces tecum (Doc. No. 79) is denied.

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