Tyler v. Alameida, et al

Filing 176

ORDER Denying Defendant's Motion For A Continuance, Without Prejudice (ECF No. 175 ), Thirty-Day Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 3/15/2012. (Opposition Deadline: 4/18/2012)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ELONZA JESSE TYLER,

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CASE NO. 1:-04-cv–06638-LJO-BAM PC

Plaintiff,

ORDER DENYING DEFENDANT’S MOTION
FOR A CONTINUANCE, WITHOUT
PREJUDICE

v.
ALAMEIDA, et al.,

(ECF No. 175)
Defendants.

THIRTY-DAY DEADLINE
/

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Plaintiff Elonza Jesse Tyler is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Following remand by the Ninth Circuit of

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Appeal, this action is proceeding against Defendant Smith for deliberate indifference in violation of

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the Eighth Amendment. Plaintiff filed a motion for summary judgment on March 1, 2012, and

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Defendants filed a motion to continue on March 14, 2012.

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Defendant brings this motion on the ground that discovery just opened in this action and he

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has not yet conducted any discovery. Defendant argues that it would be patently unfair to force him

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to respond to Plaintiff’s motion for summary judgment without the benefit of any discovery.

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Pursuant to Federal Rule of Civil Procedure 56(d) when
a nonmovant shows by affidavit or declaration, that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:

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(1) defer considering the motion or deny it;
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(2) allow time to obtain affidavits or declarations or to take discovery; or
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(3) issue any appropriate order.
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Rule 56(d) requires discovery “where the non-moving party has not had the opportunity to

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discovery information that is essential to its opposition.” Roberts v. McAfee, Inc., 660 F.3d 1156,

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1169 (9th Cir. 2011) (citations omitted). The party seeking the continuance “must show (1) that they

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have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2)

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that the facts sought exist, and (3) that these sought after facts are ‘essential’ to resist the summary

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judgment motion.” California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). In making a Rule

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56[d] motion, a party opposing summary judgment, “must make clear what information is sought

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and how it would preclude summary judgment.” Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998)

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(quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). The

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party seeking to conduct additional discovery has the burden of setting forth sufficient facts to show

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that the evidence sought exists. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir. 1987).

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Defendant has failed to file an affidavit making the required showing that additional

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discovery is necessary prior to opposing Plaintiff’s motion for summary judgment. Since discovery

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opened in this action on February 1, 2012, and Plaintiff filed his motion for summary judgment on

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March 1, 2012, a motion under Rule 56(d) is appropriate. Accordingly, Defendant Smith’s motion

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for a continuance of Plaintiff’s motion for summary judgement is HEREBY DENIED, without

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prejudice. Within thirty days from the date of service of this order, Defendant shall file a motion

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under Rule 56(d) as described in this order or an opposition to Plaintiff’s motion for summary

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judgment.

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IT IS SO ORDERED.
Dated:
cm411

March 15, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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