Asberry v. Cate et al

Filing 90

ORDER signed by Magistrate Judge Kendall J. Newman on 11/28/12 denying 81 plaintiff's 10/11/12 motion and denying 89 plaintiff's 11/26/12 Motion. Plaintiff is granted 21 days from the date of this order in which to file an opposition to defendants 10/30/12 motion to dismiss. Defendants' reply, if any shall be filed 7 days thereafter. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

TONY ASBERRY,

11
12

Plaintiff,

No. 2: 11-cv-2462 KJM KJN P

vs.

13

MATTHEW CATE, et al.,

14

Defendants.

15
16

ORDER
/

Plaintiff is a state prisoner, proceeding without counsel, and with a civil rights

17

action pursuant to 42 U.S.C. § 1983. On August 20, 2012, defendants Ali Bobbala, McCarvel,

18

Nangalama, Phelps, Virga, and Wadell filed a motion to dismiss for failure to exhaust

19

administrative remedies and for failure to state a claim for relief pursuant to Federal Rule of Civil

20

Procedure 12(b) and (b)(6). On October 30, 2012, defendants Chin, Dhillon, Duc, and Elton

21

filed a motion to dismiss on the same grounds.

22

On October 11, 2012, plaintiff filed a second motion for a court order requiring

23

plaintiff to be provided use of the prison library. On November 26, 2012, plaintiff filed a third

24

motion requesting law library access.

25
26

In plaintiff’s prior August 31, 2012 motion for law library access, plaintiff alleged
that due to the limited hours that the law library is open, he would not have adequate time to
1

1

prepare his opposition. After reviewing the motion, the court found that plaintiff did not

2

demonstrate that his law library access is inadequate, and his request was denied.

3

In his pending motions, plaintiff raises many of the same claims concerning

4

limited access to the law library. However, he adds a claim that the photocopy machine in the

5

law library was broken (although now repaired), and complains that because he uses a

6

wheelchair, he is often deprived of law library access because he arrives last, and the law library

7

can only hold so many inmates, operating on a “first come, first served” basis.

8
9

It is well established that the Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust his available administrative remedies before bringing a federal civil rights

10

action. See 42 U.S.C. § 1997e(a); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005); Griffin v.

11

Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). “[T]he PLRA’s exhaustion requirement applies to

12

all inmate suits about prison life, whether they involve general circumstances or particular

13

episodes, and whether they allege excessive force or some other wrong.” Bennett v. King, 293

14

F.3d 1096, 1098 (9th Cir. 2002) (citation and internal quotation marks omitted); see also

15

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); Jones v. Bock, 549 U.S.

16

199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that

17

unexhausted claims cannot be brought in court.”). Even if a prisoner seeks relief that is

18

unavailable through the prison’s grievance system (e.g. monetary relief), he must still first

19

exhaust all available administrative remedies. Booth v. Churner, 532 U.S. 731, 741 (2001).

20

Plaintiff was previously informed of the requirements for opposing a motion to

21

dismiss for failure to exhaust administrative remedies. When a defendant moves to dismiss some

22

or all of your claims for failure to exhaust administrative remedies, the defendant is requesting

23

that the court dismiss claims for which plaintiff did not first exhaust available administrative

24

remedies. Plaintiff was informed that to oppose the motion, he may submit proof of specific

25

facts regarding the exhaustion of administrative remedies. To do this, he may refer to specific

26

statements made in the complaint if signed under penalty of perjury and if the complaint shows
2

1

that plaintiff has personal knowledge of the matters stated. Plaintiff may also submit declarations

2

setting forth facts regarding exhaustion of the claims, as long as the person who signs the

3

declaration has personal knowledge of the facts stated. Thus, in large part, plaintiff’s opposition

4

will turn on the specific facts demonstrating his efforts to exhaust his administrative remedies as

5

to each defendant and each claim, rather than legal arguments requiring extensive legal research.

6

Plaintiff’s October 11, 2012 motion for law library access was filed two days after

7

plaintiff filed his 107 page opposition to the first motion to dismiss, and prior to the filing of the

8

second motion to dismiss. Thus, plaintiff’s October 11, 2012 motion is moot as it is apparent

9

plaintiff had law library access to file the 27 page opposition and declarations, and the appended

10

80 pages of exhibits.

11

In his November 26, 2012 motion, plaintiff also alleges he was deprived of his full

12

four hour access to the law library on one day. This allegation is insufficient to demonstrate that

13

plaintiff is being unlawfully deprived of law library access. Moreover, a more expeditious way

14

of handling such an occurrence is to simply seek an extension of time in which to file an

15

opposition. Review of the instant docket reveals that plaintiff has filed numerous motions in this

16

case, which are requiring undue use of limited court resources. Plaintiff is formally cautioned

17

that a litigant proceeding in forma pauperis may suffer restricted access to the court where it is

18

determined that he has filed excessive motions in a pending action. DeLong v. Hennessey, 912

19

F.2d 1144 (9th Cir. 1990); see also Tripati v. Beaman, 878 F2d 351, 352 (10th Cir. 1989).

20

Plaintiff is cautioned that the number of motions filed to date are bordering on excessive, and his

21

continued filing of such may subject plaintiff to restricted court access if plaintiff does not

22

exercise appropriate restraint henceforth.

23

Finally, the court notes that in the second motion to dismiss, defendants rely on

24

their points and authorities filed with the August 20, 2012 motion to dismiss. Thus, plaintiff has

25

been on notice of the exhaustion standard since he received the August 20 motion.

26

////
3

1

For all of the above reasons, plaintiff’s November 26, 2012 motion is denied.

2

However, in an abundance of caution, plaintiff is granted an additional twenty-one days in which

3

to file his opposition. No further extensions of time will be granted.

4

Accordingly, IT IS HEREBY ORDERED that:

5

1. Plaintiff’s October 11, 2012 motion (dkt. no. 81) is denied as moot;

6

2. Plaintiff’s November 26, 2012 motion (dkt. no. 89) is denied without

7

prejudice;

8
9

3. The continued filing of excessive motions may subject plaintiff to restricted
court access; and

10

4. Plaintiff is granted twenty-one days from the date of this order in which to file

11

an opposition to defendants’ October 30, 2012 motion to dismiss. Defendants’ reply, if any, shall

12

be filed seven days thereafter.

13

DATED: November 28, 2012

14
15

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

16
17

asbe2462.lib

18
19
20
21
22
23
24
25
26
4