Hernandez v. Bouwman et al

Filing 84

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/29/12 DENYING 83 Motion for the court to postpone consideration of defendant McDanielss motion for summary judgment; Plaintiff shall file his opposition to defendant McDanielss motion f or summary judgment within 30 days. Failure to file an opposition within 30 days, or at least the affidavit described above concerning law library access, will result in a recommendation that this action be dismissed. Any reply to plaintiffs opposition shall be filed within 14 days of service of the opposition. (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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ALVARO HERNANDEZ,
Plaintiff,

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No. 2:10-cv-2446 LKK CKD P

vs.
K. BOUWMAN, et al.,
Defendants.

ORDER
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Plaintiff is a California prisoner proceeding pro se with an action for violation of

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civil rights under 42 U.S.C. § 1983. Defendant McDaniels (defendant) filed a motion for

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summary judgment on June 29, 2012. Plaintiff has not yet filed an opposition despite being

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given two extensions of time to do so.

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On September 26, 2012, plaintiff requested that the court postpone consideration

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of defendant’s motion for summary judgment. Plaintiff asserts that because he is being housed in

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administrative segregation, he cannot access the law library at his prison and because he cannot

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access the law library at his prison, he cannot conduct research necessary for plaintiff to complete

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his opposition. Plaintiff does not specify what areas of the law he needs to research.

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Defendant opposes plaintiff’s motion. With his opposition, defendant includes an

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affidavit from a librarian at plaintiff’s place of incarceration. The librarian indicates that plaintiff
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is not being denied access to the law library because plaintiff is housed in administrative

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segregation. He or she also indicates that on July 4, 2012, plaintiff submitted a request for law

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library access on the wrong form. Therefore, plaintiff was not granted access to the law library.

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In the affidavit, the librarian indicated he or she would send plaintiff the correct form. The court

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assumes that has occurred. Plaintiff did not file a reply to defendant’s opposition.

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Good cause appearing, plaintiff’s request that the court postpone consideration of

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defendant’s motion for summary judgment will be denied and plaintiff will be granted one final

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30-day extension of time to file his opposition. If plaintiff is denied access to the law library to

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the extent that he is incapable of completing his opposition on time, he must explain, in a

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document signed under the penalty of perjury, the steps he has taken to gain access to the library

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and the precise reasons why he needs access to the law library. Plaintiff may be sanctioned,

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possibly with dismissal of this action, if the court finds plaintiff is delaying this action without

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good cause.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s September 26, 2012 request that the court postpone consideration of

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defendant McDaniels’s motion for summary judgment (Dkt. No. 83) is denied.
2. Plaintiff shall file his opposition to defendant McDaniels’s motion for

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summary judgment within thirty days. Failure to file an opposition within thirty days, or at least

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the affidavit described above concerning law library access, will result in a recommendation that

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this action be dismissed. Any reply to plaintiff’s opposition shall be filed within 14 days of

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service of the opposition.

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Dated: October 29, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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hern2446.ext.

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