Jones v. Plessas et al

Filing 58

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/11 ORDERING that 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; Plaintiff is granted 30 days from the date of this order in which to submit copies of appeal forms; and Defendants shall file a reply within 7 days thereafter.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK JONES,

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Plaintiff,

No. 2:09-cv-2133 KJM KJN P

vs.
C. PLESSAS, et al.,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel. This action is proceeding

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on the third amended complaint (“TAC”), filed November 16, 2010. (Dkt. No. 25.) Pursuant to

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findings and recommendations issued October 22, 2010 (dkt. no. 22), and the district court’s

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December 10, 2010 order (dkt. no. 26), various claims were dismissed, and this action is

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proceeding on these remaining claims in the TAC:
1. Plaintiff alleges that defendants A. Pickens, Martines, Laeres,1 Plessas, Smith,

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Kissinger and Fletcher used excessive force and failed to protect plaintiff on June 25, 2008.

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(Dkt. No. 25 at 4.) Plaintiff included state law claims of assault and battery and the intentional

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infliction of emotional distress.

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Defendant Laeres was incorrectly named as defendant Lorad in the TAC. (Dkt. No. 53

at 4 n.1.)
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2. On October 8, 2008, plaintiff alleges defendant Jackson used excessive force,

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in violation of the Eighth Amendment, and raises state law claims of assault and battery and the

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intentional infliction of emotional distress. (Dkt. No. 25 at 7.)
3. Plaintiff alleges defendants Cosby, Wright, Boretz, and Krauss2 retaliated

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against plaintiff for his litigation. (Dkt. No. 25 at 5.)

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4. Plaintiff alleges defendants A. Pickens, Martines, Laeres, Smith and Kissinger

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were deliberately indifferent to plaintiff’s serious medical needs. (Dkt. No. 25 at 4-5, ¶¶ 46-53.)

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Defendants’ motion to dismiss based on plaintiff’s alleged failure to exhaust
administrative remedies is presently pending. In plaintiff’s opposition, plaintiff claims he

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attempted to obtain an Olson or central file review to “get copies of 602s that were screen[ed] out

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fraudulently to show the court more proof of [plaintiff] filing proper 602 forms and prison

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officials committing misconduct to prevent [plaintiff] from properly exhausting administrative

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remedies.” (Dkt. No. 51 at 2.) Plaintiff’s request was denied because the Attorney General had

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plaintiff’s central file. (Id.) Plaintiff provided a copy of his May 10, 2011 request to view the

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central file. (Dkt. No. 51 at 17.) The request notes plaintiff sought review about a month prior,

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and sought review A.S.A.P. (Id.)

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In an abundance of caution, plaintiff is granted an extension of time in which to

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submit copies of appeal forms plaintiff contends support his oppositions to the pending motions

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to dismiss. Plaintiff shall seek an Olson or central file review, and if prison officials notify

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plaintiff his central file is still unavailable, shall inform the court. If plaintiff fails to timely

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provide these documents, the court will rule on the motions as presently submitted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall forthwith seek an Olson or central file review, and if prison

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officials notify plaintiff his central file is still unavailable, shall immediately inform the court;

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Defendants Boretz and Krauss were incorrectly named as defendants Boras and Cross
in the TAC. (Dkt. No. 53 at 5 n.2.)
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2. Plaintiff is granted thirty days from the date of this order in which to submit
copies of appeal forms; and

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3. Defendants shall file a reply within seven days thereafter.
DATED: September 28, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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jone2133.ext

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