IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 30, 2013
MARK ANTHONY GONZALES, PLAINTIFF,
M. MCDONALD, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff filed a motion for a sixty day extension of time to file a response to the November 28, 2012 motion to dismiss this action. The motion is based on plaintiff's alleged failure to exhaust his administrative remedies prior to filing the instant action. Plaintiff states that prison officials at California State Prison-Sacramento have not been making the law library accessible to plaintiff due to his "race segment." (Dkt. No. 21 at 1.) Plaintiff also states that he has put in requests to his counselor to get copies of "all unlock chronos and 602s" plaintiff signed "to prove the merit of his claim," but his counselor has not come to speak to him. (Id.)
Plaintiff is advised that he must diligently pursue all available prison procedures in order to obtain evidence and prepare his opposition. For example, plaintiff may seek an Olsen review of his central file, which should include copies of administrative grievances. Plaintiff may also avail himself of the prison grievance process if his access to the law library is denied, particularly where he faces a court deadline. Exhaustion in prisoner cases is mandatory, and must occur prior to the filing of the complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002). Thus, at this point in time, plaintiff should focus his efforts on demonstrating that he exhausted his administrative appeals as to the instant claims, rather than attempting to prove the merit of his claims.
On January 9, 2013, plaintiff was provided a thirty day extension of time to file his opposition. In an abundance of caution, the court will grant plaintiff an additional extension of time. However, plaintiff is cautioned that no further extensions of time will be granted.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's January 22, 2013 motion for an extension of time (dkt. no. 21) is granted; and
2. Plaintiff is granted sixty days from the date of this order in which to file an opposition to the pending motion to dismiss.
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