Armstead v. Virga et al

Filing 56

ORDER signed by Judge John A. Mendez on 9/11/12 ORDERING that upon reconsideration, the Order of the Magistrate Judge filed 7/19/12 is AFFIRMED; Plaintiff's Amended Complaint and objections to the 7/3/12 Findings and Recommendations are due within thirty days of the date of this order. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES ARMSTEAD,

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Plaintiff,
vs.
TIM V. VIRGA, et al.,
Defendants.

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No. 2:11-cv-1054 JAM KJN P

ORDER
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On August 3, 2012, plaintiff filed a motion for reconsideration of the magistrate

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judge’s order filed July 19, 2012 denying plaintiff’s motions for protective orders requesting

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additional law library access. In these motions, plaintiff complained that the books in the law

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library had been replaced with computers that were difficult to use. Plaintiff also complained

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that the law library no longer loaned out books. Plaintiff also complained that the law library

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hours had been cut. Plaintiff also complained about the number of copies he was permitted to

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make. Plaintiff also alleged that he had been denied law library access in retaliation for pursuing

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the instant action.

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In the pending motion for reconsideration, plaintiff challenges the magistrate

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judge’s order rejecting plaintiff’s retaliation claim as vague and unsupported. In the motion for

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reconsideration, other than conclusory allegations, plaintiff pleads no specific facts suggesting

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that prison officials denied him law library access in retaliation for pursuing this action.

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Accordingly, the order by the magistrate judge rejecting plaintiff’s retaliation claim is upheld.

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See E.D. Local Rule 303(f) (a magistrate judge’s orders shall be upheld unless “clearly erroneous

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or contrary to law.”)

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In the motion for reconsideration, plaintiff also alleges that the law librarian

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improperly refused his request for law library access on July 25, 2012. Plaintiff also alleges that

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the law librarian improperly had plaintiff removed from the front gate when he was waiting for

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law library access on unspecified occasions. Plaintiff’s motions for protective orders did not

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contain these allegations regarding denial of law library access. The undersigned will not

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consider these new allegations because they were not presented to the magistrate judge.

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Plaintiff may file a renewed motion requesting law library access. The renewed

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motion must include the dates on which plaintiff was allegedly denied law library access and

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identify the prison officials involved.

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Therefore, IT IS HEREBY ORDERED that:

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1. Upon reconsideration, the order of the magistrate judge filed July 19, 2012 is

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affirmed;
2. Plaintiff’s amended complaint and objections to the July 3, 2012 findings and

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recommendations are due within thirty days of the date of this order.

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DATED: September 11, 2012

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/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE