Gonzales v. McDonald

Filing 22

ORDER granting plaintiff's 21 Motion for Extension of Time, signed by Magistrate Judge Kendall J. Newman on 1/30/13. Plaintiff is granted 60 days from the date of this order in which to file an opposition to the pending motion to dismiss. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK ANTHONY GONZALES,

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Plaintiff,

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vs.

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No. 2:12-cv-1035 KJN P

M. McDONALD,

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Defendant.

ORDER
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Plaintiff filed a motion for a sixty day extension of time to file a response to the

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November 28, 2012 motion to dismiss this action. The motion is based on plaintiff’s alleged

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failure to exhaust his administrative remedies prior to filing the instant action. Plaintiff states

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that prison officials at California State Prison-Sacramento have not been making the law library

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accessible to plaintiff due to his “race segment.” (Dkt. No. 21 at 1.) Plaintiff also states that he

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has put in requests to his counselor to get copies of “all unlock chronos and 602s” plaintiff

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signed “to prove the merit of his claim,” but his counselor has not come to speak to him. (Id.)

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Plaintiff is advised that he must diligently pursue all available prison procedures

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in order to obtain evidence and prepare his opposition. For example, plaintiff may seek an Olsen

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review of his central file, which should include copies of administrative grievances. Plaintiff

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may also avail himself of the prison grievance process if his access to the law library is denied,
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particularly where he faces a court deadline. Exhaustion in prisoner cases is mandatory, and

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must occur prior to the filing of the complaint in federal court. Porter v. Nussle, 534 U.S. 516,

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524 (2002). Thus, at this point in time, plaintiff should focus his efforts on demonstrating that he

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exhausted his administrative appeals as to the instant claims, rather than attempting to prove the

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merit of his claims.

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On January 9, 2013, plaintiff was provided a thirty day extension of time to file

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his opposition. In an abundance of caution, the court will grant plaintiff an additional extension

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of time. However, plaintiff is cautioned that no further extensions of time will be granted.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s January 22, 2013 motion for an extension of time (dkt. no. 21) is
granted; and

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2. Plaintiff is granted sixty days from the date of this order in which to file an

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opposition to the pending motion to dismiss.

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DATED: January 30, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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gonz1035.36

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