IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 28, 2011
MALIK JONES, PLAINTIFF,
C. PLESSAS, ET AL., DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. This action is proceeding on the third amended complaint ("TAC"), filed November 16, 2010. (Dkt. No. 25.) Pursuant to findings and recommendations issued October 22, 2010 (dkt. no. 22), and the district court's December 10, 2010 order (dkt. no. 26), various claims were dismissed, and this action is proceeding on these remaining claims in the TAC:
1. Plaintiff alleges that defendants A. Pickens, Martines, Laeres,*fn1 Plessas, Smith, Kissinger and Fletcher used excessive force and failed to protect plaintiff on June 25, 2008. (Dkt. No. 25 at 4.) Plaintiff included state law claims of assault and battery and the intentional infliction of emotional distress.
2. On October 8, 2008, plaintiff alleges defendant Jackson used excessive force, in violation of the Eighth Amendment, and raises state law claims of assault and battery and the intentional infliction of emotional distress. (Dkt. No. 25 at 7.)
3. Plaintiff alleges defendants Cosby, Wright, Boretz, and Krauss*fn2 retaliated against plaintiff for his litigation. (Dkt. No. 25 at 5.)
4. Plaintiff alleges defendants A. Pickens, Martines, Laeres, Smith and Kissinger were deliberately indifferent to plaintiff's serious medical needs. (Dkt. No. 25 at 4-5, ¶¶ 46-53.)
Defendants' motion to dismiss based on plaintiff's alleged failure to exhaust administrative remedies is presently pending. In plaintiff's opposition, plaintiff claims he attempted to obtain an Olson or central file review to "get copies of 602s that were screen[ed] out fraudulently to show the court more proof of [plaintiff] filing proper 602 forms and prison officials committing misconduct to prevent [plaintiff] from properly exhausting administrative remedies." (Dkt. No. 51 at 2.) Plaintiff's request was denied because the Attorney General had plaintiff's central file. (Id.) Plaintiff provided a copy of his May 10, 2011 request to view the central file. (Dkt. No. 51 at 17.) The request notes plaintiff sought review about a month prior, and sought review A.S.A.P. (Id.)
In an abundance of caution, plaintiff is granted an extension of time in which to submit copies of appeal forms plaintiff contends support his oppositions to the pending motions to dismiss. Plaintiff shall seek an Olson or central file review, and if prison officials notify plaintiff his central file is still unavailable, shall inform the court. If plaintiff fails to timely provide these documents, the court will rule on the motions as presently submitted.
Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff shall forthwith seek an Olson or central file review, and if prison officials notify plaintiff his central file is still unavailable, shall immediately inform the court;
2. Plaintiff is granted thirty days from the date of this order in which to submit copies of appeal forms; and
3. Defendants shall file a reply within seven days thereafter.