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James Anthony Guerrero v. S. Mcclure

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 11, 2013

JAMES ANTHONY GUERRERO PLAINTIFF,
v.
S. MCCLURE, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner, is proceeding pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Pending before the court is a motion by defendants J. Fecht, D. Ferguson and R. Fox to strike additional briefing filed by plaintiff in opposition to their pending motion for summary judgment.

On August 17, 2012, defendants J. Fecht, D. Ferguson and R. Fox moved for summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. No. 83.) On September 4, 2012, plaintiff filed a response to that motion for summary judgment which included plaintiff's own unsigned declaration. (Doc. No. 84.) On September 14, 2012, defendants J. Fecht, D. Fergus and R. Fox filed objections to plaintiff's evidence and a reply brief, noting that plaintiff's declaration was unsigned. (Doc. Nos. 85, 86.) Subsequently, plaintiff filed three separate statements of fact (Doc. Nos. 87, 88 [styled as an "opposition"], 92) and another opposition to the pending motion for summary judgment (Doc. No. 89). Defendants J. Fecht, D. Ferguson and R. Fox have moved to strike plaintiff's submission which followed his initial opposition (Doc. Nos. 87, 88, 89 and 92) as unauthorized pleading. (Doc. No. 94.) In the alternative, defendants Fecht, Ferguson and Fox request 30 days leave to file a reply to the merits of plaintiff's additional filings.

Under the local rule governing prisoner actions, proper briefing of a motion in this court consists of the moving party's motion, the responding party's opposition or statement of non-opposition, and the moving party's optional reply to the opposition. See Local Rule 230(l). In light of plaintiff's pro se status, however, in this instance the court will consider his various unauthorized supplemental submissions as his opposition to the pending motion for summary judgment. Plaintiff is advised that future unauthorized briefing will not be considered except with leave of court which may be sought by filing an application for leave to submit supplemental briefing.

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

1. Defendants' motion to strike plaintiff's additional briefing (Doc. No. 94) is DENIED;

2. The court will consider plaintiff's supplemental filings (Doc. Nos. 87-89 & 92) in ruling on the pending motion for summary judgment brought on behalf of defendants Fecht, Ferguson and Fox ; and

3. Defendants are granted seven days from the date of this order to file a reply brief, if any, addressing the merits to plaintiff's additional briefing on the motion.

20130211

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