ORDER GRANTING MOTION FOR LEAVE TO FILE SURREPLY, DENYING MOTION TO STRIKE, AND GRANTING MOTION FOR LEAVE TO SUPPLEMENT SURREPLY RE IDENTITY OF CORRECTIOANL COUNSELOR (Docs. 52, 53, 54, and 55)
ORDER (1) SETTING EVIDENTIARY HEARING ON MOTION TO DISMISS, (2) REQUIRING
WITNESS LISTS NO LATER THAN DECEMBER 4, 2013, (3) REQUIRING PARTIES TO MEET AND
CONFER REGARDING PLAINTIFF'S WITNESSES, AND REQUIRING DEFENDANTS TO FILE STATUS
REPORT (4) AND REQUIRING PLAINTIFF SUBMIT CHECK OR MONEY ORDER NO LATER THAN
JANUARY 6, 2014 (Doc. 31)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Kevin Darnell Bryant ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 17, 2011. This action is proceeding on Plaintiff's amended complaint against Defendants Schaefer, Lopez, Keldgord, Harrington, and Flynn arising out of the policy and practice of crushing and floating Gabapentin and Tramadol, which led to internal injury to Plaintiff. Plaintiff alleges a claim for violation of his rights under the Eighth Amendment of the United States Constitution.
On March 20, 2013, Defendants Schaefer, Lopez, Harrington, and Flynn ("Defendants") filed a motion to dismiss for failure to exhaust administrative remedies. 42 U.S.C. § 1997e(a); Fed.R.Civ.P. 12(b). Plaintiff filed an initial opposition on April 15, 2013, and a supplemental opposition on July 25, 2013. Defendants filed a reply on July 30, 2013.
On August 9, 2013, Plaintiff filed a surreply and on August 15, 2013, Defendants filed a motion to strike the surreply. On August 19, 2013, Plaintiff filed a motion for leave to supplement his surreply to correct an error and a notice of correction. Finally, on September 3, 2013, Plaintiff filed a motion seeking leave to file a surreply and to correct an error in the surreply.
II. Motion to Strike Surreply
Parties do not have the right to file a surreply and motions are deemed submitted when the time to reply has expired. Local Rule 230( l ). The Court generally views motions for leave to file a surreply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005)). However, district courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit "inequitable surreply"); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an opportunity to respond).
In this case, Defendants' reply did not include new evidence or argument. However, the Court has determined that resolution of Defendants' motion to dismiss requires an evidentiary hearing, discussed in section III. Plaintiff is proceeding pro se and pro se litigants are generally afforded some additional leniency in this Circuit. E.g., Bonneau v. Centennial School Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012). Therefore, the Court will permit Plaintiff's surreply to ensure that briefing is now complete. See Dichter-Mad Family Partners, LLP v. U.S., 707 F.Supp.2d 1016, 1041 n.15 (C.D. Cal. 2010) (permitting oversized surreply so district court could consider merits of "arguments in order to foreclose certain of these claims in future proceedings"). The Court notes that there is no prejudice to Defendants in permitting the surreply, which is only three pages in length, excluding the attached two-page exhibit.
In addition, Plaintiff's motion to supplement his surreply to correct the identity of the correctional counselor who twice inquired on the status of his appeals is granted. Plaintiff identified the correctional counselor as Mr. Haro in his surreply. (Doc. 52, Surreply, p. 2.) In his motion and notice of correction, Plaintiff attests under penalty of perjury, "I am positive it was not Mr. Haro and that it was counselor Bynum or Scott who made those 2 calls. It was the counselor who was assigned to building C3 in October 2010. Of that I am absolutely sure." (Doc. 54, Motion & Notice, p. 2.)
III. Evidentiary Hearing
In their reply, Defendants reiterate their request for dismissal of this action based on Plaintiff's failure to exhaust. In the alternative, Defendants request an evidentiary hearing.
The Court has reviewed the briefing and it finds that an evidentiary hearing is required in light of the dispute between the parties regarding whether Plaintiff failed to exhaust or whether Plaintiff falls within an exception to the exhaustion requirement, as resolution of that dispute is dependent upon an assessment of witness credibility. Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). Therefore, an evidentiary hearing will be held before the undersigned on February 12, 2014, at 11:00 a.m. in Courtroom 7.
Defendants are the moving parties and they shall arrange for the appearance of all necessary witnesses. At a minimum and in addition to Plaintiff, the Court anticipates testimony from the correctional counselor assigned to Building E3 in October 2010 (identified as Byum or Scott) and a person or persons able to testify regarding screen-out procedures at ...