United States District Court, E.D. California
KENDALL J. NEAWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel. On February
10, 2016, defendants filed their reply to plaintiff’s
opposition to the January 15, 2016 motion for summary
judgment. However, on February 16, 2016, plaintiff submitted
a 166 page document purportedly in support of
plaintiff’s opposition to the motion. (ECF Nos. 102,
Local Rules do not authorize the routine filing of a
surreply. Nevertheless, a district court may allow a surreply
“where a valid reason for such additional briefing
exists, such as where the movant raises new arguments in its
reply brief.” Hill v. England, 2005 WL
3031136, at *1 (E.D. Cal. 2005); accord Norwood v.
Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013),
adopted, 2013 WL 5156572 (E.D. Cal. 2013).
plaintiff submitted a letter addressed to the undersigned in
which he claims he had reviewed his opposition and noticed
that one of his declarations was not signed or dated, and
therefore he had rewritten that page and signed his name and
dated the document January 31, 2016. Plaintiff stated that he
also enclosed “original copies of his statement of the
facts and perfected declaration.” (ECF No. 103 at 1.)
Plaintiff asked to be excused because he has been taking
medication for severe chest pain.
“perfected declaration” was separately docketed
as ECF No. 102. Because plaintiff’s prior declaration
was not signed (ECF No. 98), the court will consider his
“perfected declaration.” However, the
“perfected declaration, ” containing 136
paragraphs, differs from the previously-submitted
declaration, which contains 34 paragraphs. Therefore,
defendants were not provided an opportunity to consider
plaintiff’s complete declaration in drafting their
February 10, 2016 reply. The court will provide defendants an
opportunity to file a response to plaintiff’s
his letter, plaintiff included another affidavit that may be
relevant to his opposition. (ECF No. 103 at 16-17.) Thus, the
Clerk of the Court is directed to docket a copy of
plaintiff’s affidavit as ECF No. 102-1. Defendants are
provided an opportunity to respond to this affidavit as well.
appears that some of plaintiff’s statements in these
two declarations were included in his verified pleading. (ECF
No. 41.) However, if plaintiff’s “perfected
declaration” and “affidavit” require
editing defendants’ statement of undisputed facts,
defendants are also granted leave to do so.
court has reviewed the remainder of plaintiff’s
February 16, 2016 filing. The bulk of this filing is not
relevant to the pending motion. For example, plaintiff
provides information concerning his underlying criminal
conviction, as well as documents pertaining to incidents
unrelated to the April 10, 2011 incident at issue here.
Defendants did not raise new arguments in their reply brief,
and plaintiff did not seek leave to file a surreply. For
these reasons, the remainder of plaintiff’s February
16, 2016 filing, construed as a surreply, is disregarded.
in reviewing the briefing submitted in connection with the
pending motion, certain documents are missing. In the
declaration of T. Johnson, no page 42 of plaintiff’s
deposition is provided, despite reference to page 42 in
defendants’ statement of undisputed facts. Also, it
appears that a portion of defendant Tancreto’s
declaration is missing. (ECF No. 96-10.) The last sentence in
paragraph number 3 on page one is a complete sentence, but
the next sentence on page two begins mid-sentence, and the
next paragraph is numbered “5, ” not 4.
Defendants are directed to provide corrected documents within
plaintiff is cautioned that no further filing in connection
with the pending motion is authorized. The Local Rules
provide for a motion, an opposition, and a reply. Local Rule
230(l). Plaintiff has filed his own partial motion for
summary judgment, as well as opposing documents on February
5, 2016, February 8, 2016, and now February 16, 2016.
Plaintiff shall file no further document in opposition to the
motion for summary judgment. Once the court issues its
findings and recommendations, plaintiff will be provided an
opportunity to file objections.
IT IS HEREBY ORDERED that:
court will consider plaintiffs “perfected
declaration” and “affidavit” in connection
with the pending motion for summary judgment;
Clerk of the Court is directed to docket a copy of plaintiff
s “affidavit, ” (ECF No. 103 at 16-17) as ECF No.
Within fourteen days from the date of this order, defendants
shall file a response to plaintiffs declarations, as
discussed above, and shall submit ...