1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:20-cv-00622-HBK (PC) 12 Plaintiff, ORDER DIRECTING CLERK TO

TERMINATE MOTION AND AMEND

13 v. DOCKET TO REFLECT PLAINTIFF’S

MOTION AS CONSTRUED SURREPLY

14 STUART SHERMAN, et al., (Doc. No. 92) 15 Defendants. 16 17 Defendants filed a motion for summary judgment. (Doc. No. 79). Plaintiff filed an 18 opposition with a separate statement of undisputed facts. (Doc. Nos. 84, 85). Defendants filed a 19 reply in support of Defendants’ motion for summary judgment, a reply to Plaintiff’s separate 20 statement of undisputed facts, and a reply to Plaintiff’s response to Defendants’ separate 21 statement of undisputed facts. (Doc. Nos. 89-91). On September 25, 2025, Plaintiff filed a 22 pleading titled “Motion to Strike Defendants’ Answers as Undisputed Facts as Contrary to 23 Federal Rules.” (Doc. No. 92). Therein, Plaintiff responds and objects to Defendants’ responses 24 to Plaintiff’s statement of undisputed facts, as well as Defendants’ reply to Plaintiff’s opposition. 25 (Id. at 1). The Court construes Plaintiff’s pleading as a lodged surreply.1 26 1 A pleading's “nomenclature is not controlling.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 27 (9th Cir. 1983) (quoting Sea Ranch Ass'n v. Cal. Coastal Zone Conservation Comm'ns, 537 F.2d 1058, 1061 (9th Cir. 1976)). Instead, courts are instructed to “construe [the pleading], however styled, to be the 28 type proper for the relief requested.” Id. 1 Initially, the Court notes Plaintiff did not accompany his pleading with a motion. 2 However, “[i]n this Circuit, courts are required to afford pro se litigants additional leniency.” 3 Hester v. Clendenin, 2022 WL 2541632, at *2 (E.D. Cal. Jul. 7, 2022) (citing Wilhelm v. Rotman, 4 680 F.3dd 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); 5 Silva v. DiVittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. Ponder, 611 F.3d 1144, 1150 6 (9th Cir. 2010)), findings and recommendations adopted by, 2022 WL 3587803 (E.D. Cal. Aug. 7 22, 2022). Thus, while Plaintiff did not first seek leave from the Court to file a surreply, the 8 undersigned finds that striking the construed surreply would not serve the interests of justice. See 9 U.S. Equal Employment Opportunity Commission v. Sunshine Raisin Corporation, 2023 WL 10 4352426 (E.D. Cal. Jun. 13, 2023). 11 A party does not have the right to file a surreply and the courts generally view surreplies 12 with disfavor. Garcia v. Biter, 195 F. Supp.3d at 1131, 1133 (E.D. Cal. July 18, 2016) (citing 13 U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court 14 did not abuse discretion in refusing to permit inequitable surreply); JG v. Douglas County School 15 Dist., 552 F.3d 786, 803 n. 14 (9th Cir. 2008) (district court did not abuse discretion in denying 16 leave to file surreply where it did not consider new evidence in reply; Provenz v. Miller, 102 F.3d 17 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non- 18 movant an opportunity to respond). 19 Here, Plaintiff’s surreply consists of only four pages and is limited to addressing 20 Defendants’ responses to Plaintiff’s statement of undisputed facts and Defendants’ reply to 21 Plaintiff’s opposition. Given Plaintiff’s pro se status and the fact Defendants have not objected to 22 Plaintiff’s pleading, in the interests of justice, the Court will accept Plaintiff’s construed surreply 23 and consider it, to the extent relevant, in ruling on Defendants’ motion for summary judgment. 24 //// 25 //// 26 //// 27 //// 28 //// 1 Accordingly, it is ORDERED: 2 The Clerk shall amend the docket text to reflect Plaintiffs “Motion to Strike Defendants’ 3 | Answers as Undisputed Facts as Contrary to Federal Rules” (Doc. No. 92) is construed by the 4 | Court as a surreply, and shall terminate the pleading as a pending motion. 5 6 Dated: _ January 7, 2026 Kobo Zh. foareh Hack 7 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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