ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Matis's motion for summary judgment. (ECF No. 102.)

Also pending is plaintiff's motion to stay this action so that he may conduct additional discovery, brought pursuant to Federal Rule of Civil Procedure 56(d). (ECF No. 108.) On October 28, 2016, the undersigned ordered that he would consider plaintiff's motion to stay after defendant's summary judgment motion was fully briefed. (ECF No. 114). Because the summary judgment motion is fully briefed, the undersigned considers plaintiff's motion to stay and to conduct additional discovery herein.

For the reasons stated herein, the undersigned recommends that plaintiff's motion to stay be denied, and that defendant's summary judgment motion be granted.

On November 14, 2016, plaintiff filed a motion for an extension of time to file his opposition to defendant's summary judgment motion. (ECF No. 116.) On November 21, 2016, plaintiff filed a timely opposition. (ECF No. 119.) Good cause appearing, plaintiff's motion for an extension of time is denied as unnecessary.

II. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c)).

"Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).

By contemporaneous notice provided on January 6, 2015 (ECF No. 31), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

III. Discussion

Plaintiff alleges that defendant Matis retaliated against him for helping inmate Leon in the law library by firing plaintiff from his law library clerk job and by denying him law library access. Plaintiff also alleges that defendant Matis retaliated against him for filing a grievance regarding his job loss by denying him law library access, and access to making copies and a paging system.

A. Legal Standard for Retaliation

Allegations of retaliation against a plaintiff's First Amendment rights to speech or to petition the government may support a Section 1983 claim. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Within the prison context, a viable claim of First Amendment retaliation entails five elements: (1) the plaintiff engaged in protected conduct; (2) an assertion that a state actor took some adverse action against the plaintiff; (3) the adverse action was "because of" the plaintiff's protected conduct; (4) the adverse action "would chill or silence a person of ordinary firmness from future First Amendment activities;" and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First Amendment in the prison context has included the filing of a prison grievance, Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003), giving legal assistance to other inmates, Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985), and access to the courts, Lewis v. Casey, 518 U.S. 343, 346 (1996).

B. Alleged Retaliation for Helping Inmate Leon

Undisputed Facts

In April 2013, defendant Matis worked as a Library Technical Assistant ("LTA") at High Desert State Prison ("HDSP"). (ECF No. 15 at 5, 17; ECF No. 102-7 at 1.) In April 2013, plaintiff worked as a clerk in the law library. (ECF No. 15 at 17; ECF No. 102-7 at 3.)

On April 24, 2013, defendant Matis reviewed a request for Priority Legal User ("PLU") status submitted by inmate Leon.1 (ECF No. 15 at 17; ECF No. 102-7 at 3.) Inmate Leon requested PLU status based on an order dated April 12, 2013. (ECF No. 15 at 17; ECF No. 102-7 at 3.) The parties do not dispute that the order granted inmate Leon 21 days to file a response to the order. In the PLU request form, inmate Leon wrote that his deadline for responding to the order was May 12, 2013, and requested PLU status until that date. (ECF No. 15 at 17; ECF No. 102-7 at 3.) When defendant Matis returned the form to inmate Leon, she calculated the filing deadline as May 3, 2013, i.e., 21 days from April 12, 2013. (ECF No. 15 at 17; ECF No. 102-7 at 3.)

While defendant Matis considered inmate Leon's PLU status application, plaintiff told defendant Matis that she had miscalculated the PLU deadline as May 3, 2013. Plaintiff told defendant Matis that the PLU deadline was calculated based on the date the inmate actually received the order in prison. (ECF No. 15 at 17-18; ECF No. 102-7 at 4.) Plaintiff told defendant Matis that because inmate Leon actually received the order on or around April 19, 2013, the originally calculated PLU deadline of May 12, 2013 was correct. (ECF No. 15 at 17-8; ECF No. 102-7 at 4.) Plaintiff told defendant Matis that the May 3, 2013 deadline she had written on inmate Leon's PLU form was wrong. (ECF No. 15 at 17-18; ECF No. 102-7 at 3-4.) After this conversation, defendant Matis asked plaintiff to leave the library. (ECF No. 15 at 18; ECF No. 102-7 at 4.)

Defendant Matis did not call plaintiff back to his job as library clerk after April 24, 2013. (ECF No. 15 at 20; ECF No. 102-7 at 4.) Following April 24, 2013, defendant Matis recorded several "A" days in plaintiff's work log on the days that plaintiff had been scheduled to work. (ECF No. 15 at 21; ECF No. 102-7 at 4.15.) An "A" signifies that the inmate was absent from work. (ECF No. 102-7 at 16.)

Disputed Facts

The nature of the April 24, 2013 disagreement between plaintiff and defendant Matis is somewhat disputed. According to defendant Matis, the following occurred:

(ECF No. 102-7 at 3-4.)

According to plaintiff, after he told defendant Matis that the filing deadline was calculated based on the date the inmate actually received the order in prison, defendant Matis told him, "I don't have proof when he got it." (ECF No. 13 at 17.) Plaintiff alleges that he told defendant Matis that inmate Leon had just told her that he received the order on or around April 19, 2013, and those days should be added to his PLU status. (Id.) Plaintiff alleges that defendant Matis told plaintiff, "You don't get it do you?" (Id.) Plaintiff alleges that he then gave inmate Leon a 602 grievance form and told him to use it to ask the mailroom to tell him when they actually handed Leon the at-issue order. (Id.) Defendant Matis then yelled, "What are you doing?" (Id.) Plaintiff responded, "assisting Mr. Leon and advocating for our rights." (Id.) Defendant Matis then responded, "You don't get it to you?" (Id.) Inmate Leon then left for a bathroom break. (Id.)

Plaintiff then took a CDCR Form 22 and made a written request to defendant Matis to outline the new law library procedures requiring inmates to show proof of when correctional officers hand them their legal mail at their cell door. (Id.) Defendant Matis grabbed the CDCR 22 form, read it, then asked plaintiff to leave. (Id.)

Discussion

Plaintiff alleges that defendant Matis fired him from his job, and later denied him law library access, in retaliation for him speaking up on inmate Leon's behalf with regard to the calculation of inmate Leon's PLU deadline. For the following reasons, the undersigned finds that plaintiff's speech was not protected conduct, as required for a retaliation claim.2

In Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir.1985), the Ninth Circuit held that "a `jailhouse lawyer' assisting other inmates with habeas petitions and other federal actions" was engaging in expressive association under the First Amendment. "Rizzo provided his legal assistance during a prison-vocational course; thus, [the Ninth Circuit] held that he could viably allege that his forced transfer out of the course had been in retaliation for his exercise of the constitutional right to associate." Blaisdell v. Frappiea, 729 F.3d 1237, 1245 (9th Cir. 2013.) In the instant case, it is undisputed that plaintiff made the comments that led to his removal from his job in his capacity as a law library clerk. In other words, plaintiff was not functioning as a jailhouse lawyer. In fact, plaintiff's job description prohibited from answering questions of a "professional nature." (See ECF No. 15 at 106.) Because plaintiff did not engage in the kind of activity which Rizzo held was protected, that case is not controlling here.

In Watkins v. Kasper, 599 F.3d 791 (9th Cir. 2010), the Seventh Circuit found no protected conduct where a prison law clerk "openly challeng[ed] [the law librarian's] directives in front of other prisoner law clerks," thereby "imped[ing] her authority and her ability to implement library policy." Watkins, 599 F.3d at 797; cf. Smith v. Mosley, 535 F.3d 1270, 1277 (11th Cir. 2008) (finding that "false and insubordinate remarks fell within the rules' proscriptions and, accordingly, were not protected.") These decisions comport with the Supreme Court holding that "an inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974).

For the following reasons, the undersigned finds that plaintiff's speech in the law library on April 24, 2013 was not protected conduct. Plaintiff "openly challenged" defendant Matis's directives regarding the calculation of inmate Leon's PLU date in front of inmate Leon. Plaintiff's comments to defendant Matis were insubordinate. For example, in his declaration attached to the second amended complaint, inmate Leon states that after defendant Matis allegedly told plaintiff that she did not know when inmate Leon received the court order, plaintiff stated, "Mr. Leon just told you when he got it, are you calling him a liar?" (ECF No. 15 at 84.)

Another example of insubordinate comments made by plaintiff in front of other inmates is contained in the declaration of inmate Uruiza, attached to the second amended complaint. (Id. at 115-16.) Inmate Uriaza states that he saw plaintiff give inmate Leon a 602 form, telling inmate Leon that he would have to "602" the mailroom for getting his mail late, because the law librarian did not want to give him PLU status. (Id. at 115.) Defendant Matis then told plaintiff not to give advice because he was not a lawyer. (Id.) "In reply, [plaintiff] told [defendant Matis] that he felt that person's rights were being violated: `I'm an advocate for prisoner's rights.'" (Id.)

For the reasons discussed above, the undersigned finds that plaintiff's comments were not protected speech. Accordingly, defendant Matis should be granted summary judgment as to plaintiff's claim that she retaliated against him for "helping" inmate Leon in the law library.3

Defendant Matis also moves for summary judgment as to this retaliation claim on grounds that plaintiff did not suffer an adverse action. Defendant Matis argues that she did not remove plaintiff from his job, but only recommended that he be considered for a different job assignment. Because plaintiff did not engage in protected conduct, the undersigned need not reach this argument.4

C. Alleged Retaliation for Filing of Grievance

Plaintiff alleges that on May 13, 2013, he submitted a grievance alleging that defendant Matis wrongfully fired him from his library clerk job based on his assistance to inmate Leon. (ECF No. 15 at 21.) Plaintiff alleges that in retaliation for the filing of this grievance, defendant Matis denied him law library access on several occasions, and denied his requests for copies and access to a paging system.

Plaintiff also alleges that defendant Matis denied him law library access between April 24, 2013, and May 13, 2013, i.e., the date he filed his grievance. Because these alleged incidents occurred before he filed the grievance, they cannot be the basis for the instant retaliation claim. Accordingly, the undersigned addresses only the allegations of alleged retaliation occurring after plaintiff filed his grievance on May 13, 2013.

Requests for Library Access from May 13, 2013 through July 2013

Plaintiff alleges that he submitted a request for law library access on May 28, 2013, but received no response. (ECF No. 15 at 21.) Plaintiff alleges that on June 8, 2013, he was called to the law library. (Id. at 22.) Plaintiff alleges that on June 8, 2013, he told defendant Matis that the case he wanted to read was not available on the computer. (Id.) Defendant Matis allegedly told plaintiff that she would print the case out and allow him to read it in the law library. (Id.) Plaintiff alleges that defendant Matis gave him the case four minutes before the law library session ended, at which time she requested the case back. (Id.) Plaintiff alleges that he submitted another request for law library access on June 8, 2013, but received no response. (Id.)

Defendant Matis argues that plaintiff was not wrongly denied law library access during this time frame. The undersigned quotes herein, in relevant part, from defendant Matis's declaration:

(ECF No. 102-7 at 2-7.)

In the opposition to defendant's summary judgment motion, plaintiff states that he cannot oppose the portion of defendant's motion arguing that she did not retaliate against him by denying him law library access from April through November 2013 unless he is allowed to complete the limited discovery sought in the pending motion to stay. (ECF No. 119 at 8-9.) For the reasons stated herein, the undersigned recommends that plaintiff's motion to stay be denied as it pertains to the at-issue claim.

Federal Rule of Civil Procedure 56(d) provides that,

Fed. R. Civ. P. 56(d).

Where a plaintiff has not been diligent in seeking discovery, the court should deny a request for further discovery under Rule 56(d). See, e.g., Conkle v. Jeong. 73 F.3d 909, 914 (9th Cir. 1995). "When a party requests a Rule 56[d] continuance after the discovery completion date prescribed in a Rule 16 scheduling order, that party must also demonstrate `good cause' exists under Rule 16(b) to conduct further discovery." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

In the motion to stay, plaintiff contends that in the summary judgment motion, defendant Matis argues for the first time that plaintiff did not have law library access from April 24, 2013, through December 7, 2013, due to lockdowns, modified programs, the large number of inmates requesting law library access, and defendant having to work at two facilities at HDSP. (ECF No. 108 at 5.) Plaintiff requests that he be allowed to conduct limited discovery because defendant Matis "took a different" position regarding why plaintiff was denied law library access in her response to plaintiff's request for admissions. (Id. at 6.) Plaintiff requests that he be allowed to conduct limited discovery as to defendant Matis's "latest claim" regarding the reasons why plaintiff was not allowed law library access. (Id. at 7.)

Plaintiff's claim that defendant Matis takes a different position in her summary judgment motion as to why plaintiff was denied law library access is not supported by the record. As noted by defendant, she has always denied liability. In addition, the only written discovery propounded by plaintiff in this case was a request for admissions. (ECF No. 110-1 at 1.) The requests for admissions did not address the reasons why plaintiff was denied law library access from April 23, 2014, through December 7, 2013. (See ECF No. 91 at 27-37.) Plaintiff had the opportunity to serve defendant Matis with timely discovery requests addressing her position regarding why plaintiff did not receive law library access but failed to do so.

The undersigned also observes that plaintiff has attached as an exhibit to his second amended complaint minutes from the C Facility IMAC Executive Committee Meeting. (ECF No. 15 at 121-22.) These minutes are from a meeting which occurred on August 31, 2013, and are signed by defendant Matis, who is listed as an attendee. (Id. at 121.) The minutes also list "Rodriguez" as attending, although it is not clear whether this "Rodriguez" was plaintiff. (Id.) In any event, the minutes summarize a discussion regarding limited law library access for inmates with GLU status. (Id.) The minutes set forth the reasons for limited law library access for GLU status inmates: 1) small size of the library; 2) the library is open limited hours; 3) the number of PLU status inmates; 4) yard schedules. (Id.) The minutes also state, "Ms. Matis stated that at this time the backlog of GLU inmates in even numbered buildings has largely been cleared," which is an apparent reference to the backlog caused by the lockdowns and modified programs. (Id.) The reasons stated in these minutes for limited law library access for GLU inmates are consistent with the position taken by defendant Matis in the summary judgment motion regarding plaintiff's limited law library access.

For the reasons discussed above, the undersigned finds that plaintiff was not diligent in seeking discovery regarding these issues. Because plaintiff has not shown good cause to reopen discovery, the motion to stay, pursuant to Rule 56(d), should be denied.

With the denial of plaintiff's motion to stay, defendant's motion for summary judgment as to plaintiff's claim that he was denied law library access from May 13, 2013, through July 2013, in retaliation for filing his inmate grievance is unopposed. Defendant has demonstrated that plaintiff's failure to receive all the library access requested during this time was caused by the backlog of inmates with GLU status seeking law library access due to the modified programs, holidays, staff training, meetings and regular days the library was not closed. There is no evidence that defendant Matis denied plaintiff law library access during this time period for retaliatory reasons.

Plaintiff also alleges that when he had law library access on June 8, 2013, defendant Matis printed a case for him but only allowed him four minutes to read it before the law library closed. Plaintiff argues that defendant Matis granted him limited access to this printed case in retaliation for his filing of the inmate grievance. As discussed above, defendant Matis does not remember this incident. Assuming this incident occurred as alleged by plaintiff, the undersigned does not find that it constitutes an adverse action as it caused, at best, de minimis harm. See Morris v. Green, 2016 WL 4044930 at * 4 (E.D. Cal. 2016) ("When adverse acts cause only de minimis harm, they are insufficient to support a § 1983 claim for retaliation."). Accordingly, defendant Matis should be granted summary judgment as to this claim.

Request for Law Library Access in August 2013 Regarding Ninth Circuit Order

Plaintiff alleges that defendant Matis denied him adequate law library access regarding an order he received from the Ninth Circuit Court of Appeals in retaliation for filing the grievance challenging the loss of his library clerk job. The facts regarding this claim are mostly undisputed.

It is undisputed that on August 1, 2013, plaintiff submitted a PLU request. (ECF No. 119-2 at 15.) It is undisputed that plaintiff stated in the request that he had a court deadline of August 8, 2013. (Id.) It is undisputed that the Ninth Circuit had denied his request for a certificate of appealability. (Id.) It is undisputed that plaintiff was seeking to file a Petition for Rehearing under Rule 40 of the Federal Rules of Appellate Procedure. (Id.) It is undisputed that defendant Matis granted plaintiff's request for PLU status on August 3, 2013, and gave plaintiff PLU status until August 8, 2013, as he had requested. (Id.)

The parties do not dispute that defendant Matis called plaintiff to the law library, but dispute whether plaintiff attended the law library on either August 6, 2013, or August 8, 2013. (See ECF No. 102-3 at 15; ECF No. 15 at 24.)

It is undisputed that on August 6, 2013, while plaintiff still had PLU status, he submitted another PLU request. (ECF No. 119-2 at 16.) It is undisputed that plaintiff stated that he now had a court deadline of October 25, 2013. (Id.) It is undisputed that, based on the same denial of his request for certificate of appealability, plaintiff was seeking to file a petition for writ of certiorari with the United States Supreme Court. (Id.) It is undisputed that defendant Matis denied this request because plaintiff's deadline for filing the petition for writ of certiorari was dependent on the Ninth Circuit first denying the petition for rehearing. (See ECF No. 102-7 at 40.) In his opposition, plaintiff argues that defendant Matis's reason for denying this PLU request was "specious." (ECF No. 119-1 at 6.) However, it is undisputed that defendant Matis informed plaintiff that, if and when the Ninth Circuit denied his petition, PLU status would be granted so that he could file a petition for writ of certiorari. (ECF No. 110-2 at 16.)

It is undisputed that on August 6, 2013, plaintiff submitted another request for PLU status. (ECF No. 119-2 at 16.) It is undisputed that in this request, plaintiff sought additional law library access to prepare his petition for rehearing to the Ninth Circuit due on August 8, 2013. (ECF No. 102-7 at 43.) In her declaration, defendant Matis states that although plaintiff had PLU status until August 8, 2013, the law library was closed on both August 7 and August 8, 2013, due to training and shortage of staff. (ECF No. 102-7 at 8.) Defendant Matis states that once the library was open again, plaintiff's PLU status had expired and his court deadline had passed. (Id.)

In his opposition, plaintiff states that he cannot admit or deny defendant Matis's statements in her declaration regarding his second request for PLU status submitted on August 6, 2013. (ECF No. 119-2 at 17.) Plaintiff alleges that in his pending request for a stay in order to conduct additional discovery, he is seeking leave to obtain additional discovery regarding why this second request for PLU status submitted on August 6, 2013, was not granted. (Id.) As discussed above, plaintiff had adequate opportunity to submit discovery requests to defendant Matis regarding his law library access. Plaintiff has not shown good cause to reopen discovery regarding his second request for PLU status submitted on August 6, 2013. The request to reopen discovery as to this claim should be denied. Accordingly, the undersigned finds that defendant's statements regarding plaintiff's second request for PLU status submitted on August 6, 2013, are undisputed.

It is undisputed that on August 9, 2013, instead of filing a petition for panel rehearing with the Ninth Circuit, plaintiff instead filed a motion for an extension of time to do so. (ECF No. 119-2 at 17.) It is undisputed that on September 3, 2013, plaintiff filed a motion for reconsideration of the denial of his request for certificate of appealability with the Ninth Circuit. (Id.) It is undisputed that on September 4, 2013, the Ninth Circuit denied that motion. (Id.)

For the following reasons, the undersigned finds that there is no evidence that defendant Matis acted with a retaliatory motive with respect to any of the PLU requests submitted by plaintiff in August 2013 regarding the at-issue Ninth Circuit order.

It is undisputed that defendant Matis granted plaintiff's first request for PLU status regarding the Ninth Circuit order until August 8, 2013, i.e., the filing deadline. It is undisputed that plaintiff's second request for PLU status, filed August 6, 2013, was not granted because the law library was closed on August 7 and August 8, 2013. In other words, defendant Matis did not deny this request based on a retaliatory motive.

It is undisputed that defendant Matis denied plaintiff's request for PLU status to prepare his petition for writ of certiorari because it was not yet due as the Ninth Circuit had not denied plaintiff's petition for rehearing. While plaintiff describes this reason as "specious," the undersigned finds this reason to be legitimate. Defendant Matis did not deny this request for PLU status based on a retaliatory motive.

Because there is no evidence that defendant Matis acted with a retaliatory motive when processing plaintiff's August 2013 PLU requests regarding the Ninth Circuit order, defendant Matis should be granted summary judgment as to this claim.

Requests for Law Library Access from August through September 2013

In the second amended complaint, plaintiff alleges that defendant Matis denied him law library access in October and November 2013 in retaliation for filing the grievance challenging the loss of his library clerk job. Plaintiff alleges that on October 4, 10 and 24, 2013, and November 5 and 14, 2013, he heard inmate Garcia called to the law library as a GLU by defendant Matis, but not plaintiff "despite all his efforts and submissions of LLAR forms." (ECF No. 15 at 26.)

In the summary judgment motion, defendant states that plaintiff claims that he gave his requests for law library access to other inmates to deliver to defendant Matis from August through November 2014. (ECF No. 102-2 at 23.) It appears that defendant Matis is relying on plaintiff's deposition testimony for this characterization of plaintiff's claim. At his deposition, plaintiff testified that after August 8, 2013, he gave two requests for law library access to inmate Garcia to personally deliver to defendant Matis in August 2013. (Plaintiff's deposition at 52.) Plaintiff testified that inmate Garcia was getting law library access in August 2013, unlike plaintiff. (Id.) Plaintiff testified that he received no response to the law library requests delivered by inmate Garcia. (Id.)

Plaintiff testified that after the two requests delivered by inmate Garcia in August 2013, he submitted two more requests for law library access on September 14, 2013, and September 28, 2013, through inmate Garcia. (Id. at 53.) Plaintiff received no response to these requests. (Id.)

Plaintiff testified that he submitted law library access requests on October 4, 2013, October 10, 2013, and October 24, 2013, through inmate Garcia. (Id. at 54). Plaintiff received no response to these requests. (Id.) Plaintiff testified that he made requests for law library access on November 5, 2014, and November 14, 2014, through inmate Garcia. (Id. at 55.) Plaintiff testified that he received no response to these requests. (Id.)

Plaintiff testified that he did not keep copies of any of the law library requests described above because the photocopy machine was in the library. (Id. at 55.)

Defendant first moves for summary judgment as to plaintiff's claim alleging that defendant Matis denied him law library access from August through November 2013 in retaliation for filing a grievance on grounds that there is no evidence that plaintiff actually submitted the large number of requests alleged. (ECF No. 102-2 at 23.) In her declaration, defendant Matis states,

(ECF No. 102-7 at 9.)

Defendant also argues that by allegedly submitting his requests through another inmate, plaintiff did not follow the procedures for requesting law library access contained in the Department Operations Manual. According to defendant Matis,

(Id. at 3.)

Based on defendant's statement in her declaration that she has no recollection of the requests for law library access plaintiff alleges he submitted in August through November 2013, and the lack of records of these requests, the undersigned finds that defendant has borne her initial burden of demonstrating that there is no genuine issue of material fact with respect to whether plaintiff actually submitted the law library access requests as alleged. The burden shifts to plaintiff to establish that a genuine issue of fact exists as to whether he submitted the law library access requests, as alleged. For the following reasons, the undersigned finds that plaintiff has not met his burden.

In his opposition, plaintiff requests that he be allowed to conduct additional discovery in order to obtain information regarding whether records exist of the requests he allegedly submitted through inmate Garcia. (ECF No. 1192 at 18.) The undersigned finds that plaintiff was not diligent in seeking discovery regarding this claim as he could have sought discovery regarding this issue during the discovery phase of this action. Because plaintiff has not shown good cause to reopen discovery, the motion to stay as it pertains to this issue should be denied.

Turning to the merits of plaintiff's argument, in his opposition plaintiff disputes defendant's claim that requests for law library access could only be submitted to a floor officer who would then deliver them to the library. In his declaration, plaintiff states that law library request forms could also be submitted directly to the law library, which plaintiff claims inmate Garcia did on his behalf. (ECF No. 119-1 at 2) However, plaintiff has provided no evidence that inmate Garcia actually delivered any of the requests alleged. Plaintiff provides no declaration from inmate Garcia, or any other evidence, addressing this issue.

As discussed above, all reasonable inferences that may be drawn from the facts must be drawn in favor of the opposing party. Matsushita, 475 U.S. at 587. However, given all of the other things that could have occurred after plaintiff allegedly gave the law library request forms to inmate Garcia, it is not reasonable to infer from the record that inmate Garcia successfully delivered the forms to the law library and that they were received by defendant Matis. Had plaintiff given the forms to his floor officer to deliver, or dropped them off at the law library himself, it would have been reasonable to infer that the forms were actually delivered to defendant Matis.

Plaintiff also alleges that he received regular law library access in December 2013 and January 2014 from LTA Neubuerger, when defendant Matis was not working at the law library. Defendant addresses these allegations as a separate claim. The undersigned finds these allegations relevant to the instant claim and addresses them herein.

A chronology of events from which retaliation can be inferred provides circumstantial evidence of retaliation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (stating that "timing can properly be considered as circumstantial evidence of retaliatory intent"). For the reasons stated herein, the undersigned does not find that plaintiff's law library access in December 2013 and January 2014 is evidence of defendant Matis's alleged retaliation and denial of law library access to plaintiff in August through November 2013.

It is undisputed that defendant Matis did not work in the law library in Facility C, where plaintiff was housed, from December 7, 2013, through January 21, 2014. (ECF No. 119-2 at 19-20.) It is undisputed that LTA Neubuerger worked in the Facility C law library during this time period. (Id. at 20.) It is undisputed that plaintiff received law library access on December 27, 2013, January 7, 2014, January 11, 2014, and January 18, 2014. (Id. at 20-21.) It is undisputed that plaintiff had PLU status from December 18, 2013, to February 6, 2014. (Id. at 20.) It is undisputed that defendant Matis called plaintiff to the library on January 24, 2014, and January 30, 2014. (Id. at 22-23.)

It is not reasonable to infer from plaintiff's receipt of law library access in December and January 2014 that inmate Garcia actually delivered plaintiff's law library request forms in August through November 2013, as alleged, and that defendant Matis disregarded these requests. At his deposition, plaintiff testified that he, himself, delivered his request for law library access to the law library on December 2, 2013. (Plaintiff's deposition at p. 56.) Plaintiff testified that he made his next several requests for law library access as he left the library, i.e, he delivered the requests himself. (Id. at pp. 58-59.) It is also undisputed that defendant Matis called him to the library twice in January 2014. From these circumstances, it is not reasonable to infer that defendant Matis received the requests for law library access plaintiff claims he gave to inmate Garcia in August through November 2013 to deliver on his behalf. In other words, plaintiff's receipt of law library access in December 2013 and January 2014 is not circumstantial evidence of the retaliation alleged.

Accordingly, for the reasons discussed above, the undersigned finds that plaintiff has not met his burden of opposing defendant's evidence demonstrating that she did not receive the law library request forms plaintiff alleges he submitted through inmate Garcia in August through November 2013. Because the unopposed evidence demonstrates that defendant Matis did not receive these forms, defendant Matis should be granted summary judgment as to plaintiff's claim that defendant retaliated against him by ignoring these requests for law library access.

Alleged Denial to Paging

Plaintiff alleges that defendant Matis denied his paging request in retaliation for filing the grievance challenging the loss of his library clerk job. The following facts regarding this claim are undisputed.

On September 28, 2013, plaintiff submitted a paging request, asking that he be provided with copies of three legal authorities. (ECF No. 119-2 at 18.) This was the second time plaintiff had submitted such a request. (Id. at 19.) The first request had been returned with an oral explanation provided as to why it was being denied. (Id.) Defendant Matis denied the second request for the same reason as the first, namely that plaintiff did not qualify for paging pursuant to Title 15. (Id.; ECF No. 15 at 128.)

The parties dispute whether plaintiff qualified for paging. In her declaration, defendant Matis states that she denied plaintiff's paging requests because paging was for inmates who could not physically access the law library for reasons such as prison lockdowns or modified programs, neither of which were then present. (ECF No. 102-7.) In the opposition, plaintiff argues that paging was not limited to inmates on lockdown or modified programs. (ECF No. 119-2 at 19.) In support of this claim, plaintiff cites exhibits O and Q attached to the second amended complaint. (Id.) Defendant also cites exhibit Q as evidence that only inmates on lockdown or modified programs were permitted accessing to paging. (ECF No. 102-3 at 19.)

Exhibit Q is a copy of Cal. Code Regs. tit. 15, § 3123, titled "Access to Law Libraries." (ECF No. 15 at 127.) The undersigned quotes herein from the relevant section:

Title 15, § 3123(c).

Plaintiff does not claim, and there is no evidence, that he was subject to any of the circumstances listed above under which an inmate would have access to paging.

Plaintiff's Exhibit O is the memorandum containing the minutes from the August 31, 2013 C Facility Library IMAC Executive Committee Meeting. (ECF No. 15 at 121-22.) This meeting occurred on August 31, 2013, and the minutes are signed by defendant Matis. (Id.) In relevant part, the minutes state,

(Id.)

The memorandum quoted above indicates that as of August 31, 2013, defendant Matis and the library staff were "exploring and discussing" being able to provide cases to GLU inmates who had been unable to access the law library for 21 days. There is no evidence that this proposed policy had been implemented when plaintiff submitted his "paging" requests in September 2013.

In the second amended complaint, plaintiff alleges that while he was in the law library on August 8, 2013, he overheard an unidentified inmate ask defendant Matis if he could get a case printed out so that he could read it in his cell because GLU inmates were not being called to the library. (ECF No. 15 at 24.) Plaintiff alleges that defendant Matis responded, "yes," but only if the inmate had not had law library access in over 21 days. (Id.)

The conversation plaintiff alleges overhearing between defendant Matis and the unidentified inmate suggests that in August 2013 defendant Matis was providing cases to GLU inmates pursuant to the proposed policy discussed in the August 31, 2013 memorandum quoted above. However, the undersigned cannot consider these allegations for the following reasons.

"To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex, 477 U.S. at 324). The court's focus at summary judgment is not on the form of the evidence submitted, but on whether its content would be admissible. For example, hearsay evidence attached to an affidavit may be considered at summary judgment if the out-of-court declarant could present the evidence through direct, admissible testimony at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) (because contents of diary were recitations of events within declarant's personal knowledge, reliance on diary at summary judgment was permissible even if diary itself was inadmissible at trial).

Plaintiff has not identified the inmate who allegedly had the conversation with defendant Matis on August 8, 2013. Without identification of this inmate, the undersigned cannot determine whether inmate's testimony would be admissible at trial. For this reason, the undersigned cannot consider these hearsay allegations made in the second amended complaint in evaluating defendant's summary judgment motion.

The undisputed evidence demonstrates that defendant Matis denied plaintiff's September 2013 paging requests because plaintiff did not meet the qualifications for paging, as set forth in section 3123(c). In late August 2013, defendant Matis and law library staff were considering a "paging" policy for GLU inmates who had not received law library access for 21 days, for reasons other than those set forth in section 3123(c). However, there is no evidence that this policy had been implemented at the time plaintiff submitted his requests. Therefore, the evidence demonstrates that defendant Matis did not act with a retaliatory motive when she denied plaintiff's September 2013 paging requests. Accordingly, defendant Matis should be granted summary judgment as this claim.5

Request for Law Library Access in January 2014 based on Evans v. Chavis

Plaintiff alleges that on January 18, 2014, he submitted a PLU application for law library access in order to submit a habeas petition within 60 days, as suggested by the Supreme Court in Evans v. Chavis, 546 U.S. 189 (2006).6 (ECF No. 15 at 28.) Plaintiff alleges that on January 21, 2014, defendant Matis denied this request in retaliation for his filing of the grievance challenging the loss of his library clerk job. (Id.) Plaintiff alleges that defendant Matis had previously granted inmate Leon's request for PLU status to file a habeas petition pursuant to Evans v. Chavis. (Id.)

Plaintiff's and inmate Leon's requests for law library access pursuant to Evans v. Chavis are attached as exhibits to the second amended complaint. Inmate Leon submitted his request in April 2013, which defendant Matis granted on May 10, 2013. (Id. at 131.) Plaintiff submitted his request on January 18, 2014, in which he wrote that pursuant to Evans v. Chavis, he was requesting PLU status for 60 days to prepare a habeas corpus petition. (Id.) Defendant Matis denied this request on January 21, 2014, writing "No statutory or court rule cited nor is there a court ordered deadline." (Id. at 129.)

Defendant Matis argues that she did not retaliate against plaintiff when she denied his request for PLU status based on Evans v. Chavis. Defendant Matis does not dispute that she granted inmate Leon's request for PLU status pursuant to Evans v. Chavis, but denied the same request made by plaintiff. Defendant Matis argues that she denied plaintiff's request for PLU status based on Evans v. Chavis because she was not authorized by her supervisor to grant the request. (Id. at 9-10.) In her declaration defendant Matis states, in relevant part,

(Id. at 9-10.)

The undersigned has reviewed defendant's Exhibit O containing the email chain referenced above. (Id. at 46-49.) These emails indicate that in May 2013, defendant had been instructed to give inmates PLU status for 60 days based on requests made pursuant to Evans v. Chavis. (Id.) However, in November 2013, defendant Matis had been instructed that requests for 60 days PLU status based on Evans v. Chavis were not to be granted. (Id.)

Defendant has presented uncontroverted evidence that she denied plaintiff's January 2014 request for PLU status based on Evans v. Chavis in accordance with instructions from her supervisor, and not based on a retaliatory motive. Accordingly, defendant Matis should be granted summary judgment as to this claim.

Request for Copies in February 2014

Plaintiff alleges that on February 20, 2014, he attended the law library to work on a motion to recall the mandate to be filed in the Ninth Circuit. (ECF No. 15 at 28.) Plaintiff alleges that when he asked defendant Matis for "copies," she responded, "Don't you see I'm busy." (Id.) Plaintiff alleges that because he did not get copies he was unable to meet the deadline for filing his motion in the Ninth Circuit. (Id. at 28-29.) Plaintiff is claiming that defendant Matis denied his request for copies in retaliation for his filing the grievance challenging the loss of his law library clerk job.

Defendant Matis moves for summary judgment as to this claim on grounds that there is no evidence that she took the adverse action alleged, i.e., refusing to make copies. In her declaration, defendant states that she has no recollection of the events of February 20, 2014, as alleged in the second amended complaint. (ECF No. 102-7 at 10.) Defendant states that if plaintiff had requested copies from her, she would have made sure that they were provided so long as the documents he sought to have copies were permitted under regulations. (Id.)

Defendant also argues, and plaintiff does not dispute, that plaintiff served the motion to recall the mandate with the Ninth Circuit on February 20, 2014, i.e., the date plaintiff allegedly requested the copies. (ECF No. 119-2 at 23 (plaintiff's statement of undisputed facts); ECF No. 102-5 at 26 (Ninth Circuit docket).) In his opposition, plaintiff argues that this argument ignores the "obvious fact, that, regardless of how plaintiff managed to get it done, defendant Matis, nevertheless, actively interfered with his litigation tactics." (ECF No. 119- at 13.)

While plaintiff argues that he was able to obtain the necessary copies in spite of defendant Matis's alleged refusal to make them, this argument ignores the undisputed fact that he filed his motion to recall the mandate on February 20, 2013, i.e., the date he claims defendant Matis allegedly refused to make the copies for him. Therefore, plaintiff met the deadline for filing the motion to recall the mandate, contrary to what is alleged in the second amended complaint.

Because plaintiff's claims regarding what occurred on February 20, 2014, are not supported by the evidence, the undersigned finds that plaintiff has not met his burden of demonstrating that defendant retaliated against him on that date by refusing to make copies. Accordingly, defendant Matis should be granted summary judgment as to this claim.

D. Qualified Immunity

Defendant moves for summary judgment based on qualified immunity.

"[Q]ualified immunity is an affirmative defense and . . . the burden of pleading it rests with the defendant." Crawford-El v. Britton, 523 U.S. 574, 587 (1998). Deciding qualified immunity entails a two-step analysis. Once a court determines that a constitutional violation occurred the court must then inquire whether the right violated was "clearly established" by asking whether a reasonable officer could believe that his actions were lawful. Oxborro v. City of Coalinga, 559 F.Supp.2d 1072, 1080 (E.D. 2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001).) "In the second step, the court must ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. Although this inquiry is primarily a legal one, where the reasonableness of the officer's belief that his conduct was lawful `depends on the resolution of disputed issues of fact . . . summary judgment is not appropriate.'" Id. (citing Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003).)

Because the undersigned finds that defendant should be granted summary judgment as to the merits of plaintiff's claims, no further discussion of qualified immunity is warranted.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for an extension of time (ECF No. 116) is denied;

IT IS HEREBY RECOMMENDED that:

1. Plaintiff's motion to stay (ECF No. 108), construed as a motion pursuant to Federal Rule of Civil Procedure 56(d), be denied;

2. Defendant's motion for summary judgment (ECF No. 102) be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).