Opinion
1:21-cv-01499-JLT-EPG (PC)
04-13-2023
MARK A. GELAZELA, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER STRIKING PLAINTIFF'S REBUTTAL TO DEFENDANT UNITED STATES OF AMERICA'S ANSWER ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, WITHOUT PREJUDICE (ECF NO. 37)
Mark Gelazela (“Plaintiff”) is a former federal prisoner proceeding pro se and in forma pauperis in this action. On March 30, 2023, defendant United States of America filed an answer. (ECF No. 30). On April 12, 2023, Plaintiff filed a “Rebuttal Against U.S.A.'s Answer/Motion to Dismiss FAC; Plaintiff's Motion for Summary Judgment.” (ECF No. 37).
Defendant United States of America did not file a motion to dismiss.
For the foregoing reasons, the Court will strike Plaintiff's rebuttal to defendant United States of America's answer, and will deny Plaintiff's motion for summary judgment, without prejudice.
Pursuant to Rule 7(a), “[o]nly these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.”
As to Plaintiff's rebuttal to defendant United States of America's answer, the Court has not ordered a reply to the answer, and declines to make such an order. Moreover, Plaintiff's filing does not fit into any other category. Therefore, the Court will strike Plaintiff's rebuttal.
As to Plaintiff's motion for summary judgment, Plaintiff is moving for summary judgment on the merits of his claim involving medical treatment (or lack thereof), even though discovery has not yet been opened. (See ECF No. 5, p. 4). Moreover, Plaintiff's motion does not comply with this Court's local rules. Under Local Rule 260(a), “[e]ach motion for summary judgment or summary adjudication shall be accompanied by a ‘Statement of Undisputed Facts' that shall enumerate discretely each of the specific material facts relied upon in support of the motion and cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact. The moving party shall be responsible for the filing of all evidentiary documents cited in the moving papers.” While Plaintiff filed evidence in support of his motion, he did not file a Statement of Undisputed Facts. Therefore, the Court will deny Plaintiff's motion for summary judgment, without prejudice.
Accordingly, based on the foregoing, IT IS ORDERED that:
1. Plaintiff's rebuttal to defendant United States of America's answer (ECF No. 37) is STRIKEN from the record; and
2. Plaintiff's motion for summary judgment (ECF No. 37) is DENIED, without prejudice.
IT IS SO ORDERED.