Ware v. McDonald

          ORDER

          KENDALL J. NEAWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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, 103.)

         The 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).

         Here, 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.

         Plaintiff’s “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 “perfected declaration.”

         With 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.

         It 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.

         The 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.

         Moreover, 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 fourteen days.

         Finally, 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.

         Accordingly, IT IS HEREBY ORDERED that:

         1. The court will consider plaintiffs “perfected declaration” and “affidavit” in connection with the pending motion for summary judgment;

         2. The Clerk of the Court is directed to docket a copy of plaintiff s “affidavit, ” (ECF No. 103 at 16-17) as ECF No. 102-1;

         3. Within fourteen days from the date of this order, defendants shall file a response to plaintiffs declarations, as discussed above, and shall submit ...