(PC) McNeil v. Toor

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL MCNEIL, Case No. 1:19-cv-01257-ADA-HBK 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE 13 v. (Doc. No. 76) 14 KIRAN TOOR, PAL VIRK, TIN-AUNG SHWE, HARMINDER LONGIA, ORDER DIRECTING CLERK TO STRIKE 15 PLAINTIFF’S IMPROPER PLEADINGS Defendants. 16 (Doc. Nos. 75, 78) 17 18 19 Pending before the Court is Defendants’ motion filed April 28, 2022. (Doc. No. 76, 20 Motion). Defendant requests the Court to strike pro se Plaintiff’s request for judicial notice filed 21 on April 21, 2022 as an improper surreply or deny the request for judicial notice because the 22 matters are not properly subject to judicial notice. (Id.). Plaintiff filed an opposition and 23 Defendants filed a reply. (Doc. Nos. 77, 79). The Court grants the Motion. 24 Defendants filed a motion for summary judgment in this action on November 10, 2021. 25 (Doc. No. 53). After receiving an extension, Plaintiff filed a request for judicial notice and an 26 opposition to the motion for summary judgment on January 24, 2022. (Doc. Nos. 63-64). After 27 being granted an extension of time, Defendants filed their reply on March 25, 2022. (Doc. No. 28 72). On March 30, 2022, Defendants filed a notice of errata pertaining to their reply to Plaintiff’s 1 response to Defendants’ undisputed facts. (Doc. No. 73). Plaintiff subsequently filed a second 2 request for judicial on April 21, 2022. (Doc. No. 75). Plaintiff requests that the Court take 3 judicial of the following facts: 4 (1) The Centers for Disease Control and Prevention (CDC) is weighing new opioid 5 prescribing guidelines amid controversy over old ones; and 6 (2) The previous advice on opioids, issued in 2016, has been widely blamed for leading 7 to harmful consequences for patients with chronic pain, as reported by an Associated 8 Press reporter and an article in National Public Radio (NPR) Health News. 9 (Id. at 1). Plaintiff then delineates five additional facts presumably gleaned from an April 9, 2022 10 article that Plaintiff attaches to his request. (Id. at 2-18). 11 First, neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern 12 District of California permit the filing of a surreply after a reply. See Garcia v. Biter, 195 13 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a 14 surreply under the local rules or under the Federal Rules of Civil Procedure). While courts are 15 required to provide pro se litigants leniency, the court generally views motions for leave to file a 16 surreply with disfavor and will not consider granting a motion seeking leave to file a surreply 17 absent good cause shown. Id. (citations omitted). 18 Further, this Court’s Local Rules provides that “[a]fter a reply is filed, no additional 19 memoranda, papers, or other materials may be filed without prior Court approval” except a party 20 may file (1) “Objection to Reply Evidence” stating “its objections to the new evidence” or (2) 21 “Notice of Supplemental Authority” to “bring the Court’s attention to a relevant judicial opinion 22 issued after the date that party’s opposition or reply was filed.” Local Rule 230(m)(1)-(2). 23 Plaintiff’s request for judicial notice can neither be construed as an objection or supplemental 24 authority. Despite Plaintiff’s pro se status, he is required to comply with the Court’s rules. 25 Briones v. Rivera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997). Federal Rule of Civil 26 Procedure 12(f) authorizes the court to strike any insufficient defense, or any redundant, 27 immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). Consequently, the Court 28 finds Plaintiff’s request for judicial notice filed on April 21, 2022 was improperly filed without 1 | Court approval and should be stricken. For the same reasons, Plaintiff's third request for judicial 2 | notice filed on May 10, 2022 (Doc. No. 78) should also be stricken. 3 In the alternative, the matters to which Plaintiff request the Court take judicial notice are 4 | not properly the subject for judicial notice. Federal Rule of Evidence 201 permits a court to take 5 | judicial notice of facts that are “not subject to reasonable dispute” because they are either 6 | “generally known within the trial court’s territorial jurisdiction,” or they “can be accurately and 7 | readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 8 | Evid. 201(b). The Court may take judicial notice on its own or at the request of any party. Fed. 9 | R. Evid. 201(c). In his April 21, 2022 pleading, Plaintiff seeks requests the Court to take judicial 10 | notice of facts from an article or content from the NPR website. When a document is subject to 11 | varying interpretations, then facts are “subject to reasonable dispute” and are not properly subject 12 | to judicial notice. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 1000 (9th Cir. 2018). Further 13 || while “[a] court may take judicial notice of the existence of matters of public record” the court 14 | may not take judicial notice of “the truth of the facts cited therein.” Marsh v. San Diego County, 15 | 432 F.Supp.2d 1035, 1043 (S.D. Cal. May 5, 2006) (citing Lee v. City of Los Angeles, 250 F.3d 16 | 668, 689-690 (9th Circ. 2001) (other citation omitted). 17 ACCORDINGLY, it is hereby ORDERED: 18 Defendants’ motion (Doc. No. 76) is GRANTED, and the Clerk of Court shall strike 19 | Plaintiffs improperly filed pleadings (Doc. Nos. 75, 78) from the docket. 20 | Dated: _ August 29, 2023 Mile. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

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