Donte v. Swingle et al
Filing
47
ORDER signed by Magistrate Judge John F. Moulds on 06/23/11 ordering that plaintiff's 03/18/11 motion 43 is denied. (Plummer, 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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LEONARDO DONTE,
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Plaintiff,
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No. 2:10-cv-0299 KJM JFM (PC)
vs.
D. SWINGLE, et al.,
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Defendants.
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ORDER
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On September 1, 2010, the undersigned issued a discovery and scheduling order
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in this matter and set a March 11, 2011 deadline for filing pretrial motions. On November 10,
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2010, defendant filed a motion to dismiss. On December 27, 2010, plaintiff filed an opposition.
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On March 16, 2011, the undersigned issued findings and recommendations recommending that
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defendant’s motion to dismiss be granted and this action be dismissed for failure to exhaust
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administrative remedies. The findings and recommendations are presently pending before the
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Honorable Kimberly J. Mueller.
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On March 18, 2011, plaintiff filed a document entitled “Defendant French’s Ex
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Parte Request to Vacate Deadline to File Dispositive Motion.” On June 2, 2011, the undersigned
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directed defendant to respond to plaintiff’s motion. On June 10, 2011, defendant filed a
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response. Upon consideration of the motion and defendant’s response, the court it is puzzled by
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the precise nature of plaintiff’s request. Nonetheless, the court will construe it as best as it can.
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Initially, as defendant points out, plaintiff’s motion is titled “Defendant French’s
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Ex Parte Request to Vacate Deadline to File Dispositive Motion,” the identical title on the
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February 23, 2011 motion filed by defendant. (Emphasis added; compare Doc. No. 40 with Doc.
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No. 43.) In his motion, which is, in fact, a declaration, plaintiff appears to refer (without more)
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to his February 28, 2011 motion seeking access to the law library. That motion, however, was
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denied on March 16, 2011 in the findings and recommendations currently pending before Judge
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Mueller. Thus, to the extent plaintiff’s motion is a request to supplement his February 28, 2011
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motion, that request will be denied. Further, attached to plaintiff’s motion are administrative
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grievance forms wherein plaintiff challenges the conduct of a correctional officer not named as a
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defendant in this action. It is unclear what plaintiff intends by submitting these documents.
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Finally, insofar as plaintiff contends that he has been denied law library access, defendant
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submits the declaration of James Williamson, the Library Supervisor employed at Salinas Valley
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State Prison where plaintiff is housed. See Doc. No. 46, Ex. 1. Williamson declares that
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plaintiff has accessed the library multiple times from November 2010 to April 2011. See
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Williamson Decl., ¶¶ 8-9.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s March 18, 2011 motion
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is denied.
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DATED: June 23, 2011.
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/014;dont0299.jo(2)
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