Opinion
1:21-cv-00410-JLT-BAM (PC)
06-16-2023
ERLINDO RODRIGUEZ, JR., Plaintiff, v. MENDOZA, et al., Defendants.
ORDER STRIKING PLAINTIFF'S DECLARATION AND OPPOSING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS IMPROPER SURREPLY (ECF NO. 53)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Plaintiff Erlindo Rodriguez, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Mendoza for failure to protect and excessive force in violation of the Eighth Amendment and against Defendant Campbell for excessive force in violation of the Eighth Amendment.
Erroneously sued as “Cambell.”
On April 17, 2023, Defendants filed a motion for summary judgment. (ECF No. 44.) On May 25, 2023, the Court ordered Plaintiff to show cause by written response why this action should not be dismissed, with prejudice, for failure to prosecute. (ECF No. 47.) On May 30, 2023, Plaintiff filed an opposition, including a proof of service by mail dated May 18, 2023, to Defendants' motion for summary judgment. (ECF No. 48.) Although it appeared Plaintiff's opposition was mailed before he received the Court's order to show cause, the Court accepted the opposition as filed in response to the order to show cause and discharged the order to show cause on June 1, 2023. (ECF No. 49.)
On June 8, 2023, Plaintiff filed a motion for extension of time to file his opposition, (ECF No. 50), apparently in response to the Court's order to show cause but before receipt of the Court's June 1, 2023 order discharging the order to show cause. The Court denied the motion as unnecessary, in light of the receipt of Plaintiff's opposition. (ECF No. 52.) The Court further informed Plaintiff that with the filing of Defendants' reply on June 12, 2023, (ECF No. 51), the motion for summary judgment is now fully briefed, and Plaintiff does not need to take any other action.
Currently before the Court is Plaintiff's “Declaration and Opposing Defendants Motion for Summary Judgment,” filed June 15, 2023, and dated June 8, 2023. (ECF No. 53.) The Court construes this filing as either a surreply or a second opposition to Defendants' motion for summary judgment.
Neither the Federal Rules of Civil Procedure nor the Local Rules contemplate the filing of a surreply. See Local Rule 230(1). No further briefing on Defendants' motion for summary judgment is permitted absent leave of Court. The Court did not grant Plaintiff leave to file a surreply or a second opposition and the Court does not desire any further briefing on the motion.
Accordingly, Plaintiff's surreply, (ECF No. 53), is HEREBY STRICKEN from the record. Defendants' motion for summary judgment will be addressed in due course.
IT IS SO ORDERED.