United States District Court, E.D. California
ORDER
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff
is a state prisoner, proceeding without counsel. As discussed
below, the undersigned holds the prior findings and
recommendations in abeyance, while granting plaintiff one
final extension of time in which to file a pleading and
either pay the court's filing fee or file an application
to proceed in forma pauperis. Plaintiff is cautioned that
failure to comply with this order will result in the
September 25, 2019 findings and recommendations being
forwarded to the district court for review and adoption.
I.
Background
On July
3, 2019, in Diaz v. Hurley, No. 2:15-cv-2083 KJM KJN
P (E.D. Cal.), the court ordered that plaintiff's motion
for injunctive relief was more appropriately filed in a new
action, and was assigned the instant case number.
Id. (ECF No. 64 at 1). However, plaintiff was
cautioned that in order to commence an action, he was
required to file a complaint, as well as pay the filing fee
or seek leave to proceed in forma pauperis. Id.
Plaintiff was also cautioned that failure to comply with the
order would result in a recommendation that the newly-opened
case be dismissed. Id. (ECF No. 64 at 2.) To date,
plaintiff has not filed a complaint, paid the court's
filing fee, or filed an application to proceed in forma
pauperis.
On July
24, 2019, plaintiff was granted 45 days in which to comply
with the July 3, 2019 order, and to reply to the July 9, 2019
response filed by special appearance. (ECF No. 6.) On July
25, 2019, plaintiff filed a motion pertinent to the response
by special appearance, and on July 30, 2019, he filed an
exhibit. (ECF Nos. 7, 8.) Subsequently, he filed a request
for extension of time to comply with the July 3, 2019 order,
and on August 27, 2019, plaintiff was granted an additional
fifteen days in which to comply but was warned that no
further extensions of time would be granted. (ECF No. 12.)
Fifteen days passed, and plaintiff did not comply with the
July 3, 2019 order (ECF No. 2), or otherwise respond to the
court's order.[1]
On
September 25, 2019, the undersigned recommended that this
action be dismissed based on plaintiff's failure to file
a complaint or otherwise comply with the July 3, 2019 order.
On that
same day, September 25, 2019, plaintiff presented to prison
staff for mailing a motion for court-ordered physical access
to the law library to comply with this court's deadlines.
Plaintiff states that he is on the list as a Preferred Legal
User (“PLU”), but cannot physically access the
law library due to his work hours. (ECF No. 16 at 1.)
Plaintiff first complains that the librarians fail to ensure
that all of the current books in the law library are
accessible to the inmate population, and claims he and other
disabled inmates are being denied typewriter ribbons. As a
result, plaintiff complains he has been forced to use his own
personal typewriter and supplies. Plaintiff also complains
that the physical books and the available computer are
outdated, and the librarians refuse to use the Inmate Welfare
Fund to update them or provide supplies. Second, plaintiff
complains that the law library is only open on Tuesdays,
Wednesdays and Saturdays for all inmates including clerk
workers. (ECF No. 16 at 2.) Plaintiff claims it is impossible
to work and use his PLU status both because the hours are
during his work hours and because of “the outright
DENIALS of updated books, computers, and supplies for inmates
whose upper extremity disabilities physically prevent their
ability to handwrite.” (ECF No. 16 at 2.) Plaintiff
states he can no longer handwrite due to carpal tunnel
syndrome and stenosyvitis of his right hand and thumb, and
“pecks” on the typewriter. (ECF No. 16 at 2.)
Plaintiff states he has had multiple surgeries, including two
amputations, and is scheduled for another partial amputation
of his right foot. But plaintiff does not ask “for
sympathy, ” only a chance to file valid civil rights
complaints. (ECF No. 16 at 2.) Plaintiff then asks for
wide-ranging relief, including that all physical law books be
updated to current editions (to be immediately purchased);
all computer books be updated (also purchased immediately);
the Brother ML-300 typewriter and supplies be provided to
plaintiff, including ribbons, whiteout and paper; no further
retaliation against plaintiff, including job reassignments,
cell/dorm searches, prison, dorm, wing transfers without the
consent of the Office of the Inspector General and the Prison
Law Office; Correctional Officer (“C/O”) Goforth
be reassigned to first watch in Tower 5, and C/O Townsend be
denied promotions for one year; that no more “blatantly
false” chronos or rules violations be filed against
plaintiff; that the court order CMF to “immediately
open [the library] on Sundays;” and any other relief
the court deems appropriate.
Plaintiff
fails to identify any specific civil rights violation or
other federal claim that he has been attempting to research
or include in any putative complaint.
II.
Plaintiff's Request for Order re Law Library
Access
Plaintiff's
allegations concerning an inability to obtain adequate access
to the library are belied by his myriad filings in this
action. Indeed, his most recent typewritten motion was three
pages single-spaced, and included appropriate citations to
pertinent legal authorities. Plaintiff's first 38-page
filing in this case contained his 8-page single-spaced
motion, with specific and myriad citations to appropriate
governing legal authorities, including statutes and cases.
(ECF No. 1.) On July 25, 2019, plaintiff's 41-page filing
included six pages of single-spaced text. (ECF No. 7.)
Plaintiff has also filed multiple declarations and other
exhibits in support of his filings.
Importantly,
this court employs a form civil rights complaint allowing pro
se prisoners to simply check appropriate boxes, identify the
name of the defendant, and briefly state the facts supporting
the claims alleged. Prisoners are not required to cite case
law or statutes in their initial pleadings. In addition,
plaintiff's motion does not make clear that his access to
the library is inadequate in light of his acknowledgment that
he has been granted PLU status, but his personal work ethic
requires him to work, and it is his work schedule that
precludes him from obtaining all the law library access he
allegedly needs. Finally, court records reflect that
plaintiff has filed multiple complaints in this district
before. See Diaz v. Hurley, No. 2:15-cv-2083 GEB KJN
P (E.D. Cal. Oct. 30, 2017) (collecting cases).
The
court is sympathetic to plaintiff's medical issues, as
well as his inability to handwrite. But plaintiff has had
over five months to comply with the July 3, 2019 order. In
addition, the record reflects that plaintiff has chosen to
file other documents to the exclusion of preparing and filing
a complaint as required to commence an action. Fed.R.Civ.P.
3. Moreover, plaintiff has wholly failed to address his
failure to pay the court's filing fee or submit a request
to proceed in forma pauperis affidavit. Such filing has
nothing to do with plaintiff's law library access. In
addition, plaintiff concedes he has his own personal
typewriter and supplies, yet fails to explain why he is
unable to use it to prepare the required pleading.
Therefore,
the undersigned denies plaintiff's motion without
prejudice to renewal once plaintiff has complied with the
court's July 3, 2019 order. In an abundance of caution,
plaintiff is granted thirty days in which to comply with the
July 3, 2019 order which specifically requires plaintiff
to file a complaint that complies with the requirements of
the Civil Rights Act, the Federal Rules of Civil Procedure,
and the Local Rules of Practice; . . . [and to] also submit,
within thirty days from the date of this order, the
application to proceed in forma pauperis on the form provided
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