UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 4, 2011
STEVEN DE SHAZO,
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION PLAINTIFF'S OPPOSITION DUE JANUARY 31, 2011
(ECF No. 38)
CLERK TO SERVE COPY OF THIS ORDER ON LITIGATION COORDINATOR AT CSP CORCORAN
Plaintiff Steven De Shazo ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's third request for an extension to respond to Defendant's Motion to Dismiss. (ECF No. 38). Plaintiff contends that he has requested an Olsen review but the request has been ignored by prison officials. He claims that he will need to spend several hours with his file in order to prepare his response to the pending Motion.
The Motion to Dismiss has been pending for over six months. The Court has already granted Plaintiff two extensions to respond. Moreover, the Court notes Plaintiff's admission that even though the Motion to Dismiss was filed in July 2010 and Plaintiff's opposition was initially due in August 2010, Plaintiff did not seek priority access to the law library until November 17, 2010. The Court does not understand why Plaintiff waited until November to seek access to the law library. The Court cannot condone the delay, and it will not allow Plaintiff to continue to drag his feet in this case.
Additionally, the instant Motion complains about a number of prison confinement issues that are wholly unrelated to the claim pending in this case. In the Motion, Plaintiff complains that the prison has required him to take on a cell mate, that he is not receiving all of his mail in a timely manner, and that he needs to be placed back on the developmental disability program. These claims are not before the Court and will not be addressed by the Court. The sole claim pending here is whether Defendant Hieng used excessive force on Plaintiff while transporting him on June 5, 2006. The sole argument raised by the Motion to Dismiss is that Plaintiff did not exhaust his administrative remedies prior to filing the action. These are the only two issues over which the Court has jurisdiction. The Court is powerless to address the other wrongs Plaintiff alleges that he is suffering. Plaintiff would be well-advised to focus his energies on defending against the Motion to Dismiss in this case.
As mentioned, the pending Motion to Dismiss alleges that Plaintiff failed to exhaust his administrative appeals. (ECF No. 25.) To oppose this Motion, Plaintiff does not need to address the merits of his claim, he need only set forth what steps he took to exhaust his administrative appeals. Moreover, he is not required to submit evidence in his opposition; he can set forth-in an affidavit sworn under penalty of perjury-the actions he took to pursue and exhaust his administrative remedies. Thus, the Court does not understand why Plaintiff feels he needs access to his medical files to prepare his opposition. Accordingly, the Court will not grant Plaintiff additional time to enable him to access his medical files. However, the Court recognizes that it could be helpful to Plaintiff in preparing his opposition to have access to his central file (assuming that any grievances and/or appeals are kept in the central file).
From the attachments to the instant Motion, it appears that Plaintiff was granted priority access to the law library on December 2, 2010. In order to allow Plaintiff the opportunity to take advantage of this law library access and the opportunity to work with the litigation coordinator (see below) to gain access to his central file, Plaintiff's Motion for Extension is GRANTED. Plaintiff's opposition to Defendant's Motion to Dismiss shall be filed not later than January 31, 2011. Plaintiff is hereby on notice that no further extensions will be granted.
The Clerk's office is ORDERED to serve a courtesy copy of this Order on the Litigation Coordinator at CSP Corcoran. The Court asks the Litigation Coordinator to work with the Plaintiff to facilitate an Olsen review as soon as possible.
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.