Rosenblum v. Ellis, et al

Filing 108

ORDER GRANTING 96 Plaintiff's Motion to Extend Discovery Deadline, for Limited Purpose Discussed in This Order; ORDER Holding 104 Defendant's Motion for Summary Judgment in Abeyance, Pending Completion of Discovery, and Excusing Plainti ff From Filing an Opposition; ORDER DENYING 97 Plaintiff's Request to Conduct Deposition, Without Prejudice; and ORDER for Clerk to Send Copies of Rules 28, 29 and 30 to Plaintiff, signed by Magistrate Judge Gary S. Austin on 2/2/2012. New Discovery Deadline: 4/6/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP JON ROSENBLUM,

1:05-cv-01473-LJO-GSA PC

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ORDER GRANTING PLAINTIFF'S MOTION
TO EXTEND DISCOVERY DEADLINE, FOR
LIMITED PURPOSE DISCUSSED IN THIS
ORDER
(Doc. 96.)

Plaintiff,
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v.
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C/O ELLIS, et al.,

ORDER HOLDING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT IN
ABEYANCE, PENDING COMPLETION OF
DISCOVERY, AND EXCUSING PLAINTIFF
FROM FILING AN OPPOSITION
(Doc. 104.)

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Defendants.
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ORDER DENYING PLAINTIFF’S REQUEST
TO CONDUCT DEPOSITION, WITHOUT
PREJUDICE
(Doc. 97.)

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ORDER FOR CLERK TO SEND COPIES OF
RULES 28, 29, AND 30 TO PLAINTIFF

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New Discovery Deadline:

April 6, 2012

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I.

BACKGROUND

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Phillip Jon Rosenblum (“Plaintiff”) is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on November 21, 2005. (Doc. 1.) This case now proceeds on the First
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Amended Complaint filed by Plaintiff on July 20, 2010, against defendant Correctional Officer Ellis

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for failure to protect Plaintiff in violation of the Eighth Amendment.1 (Doc. 62.)

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On February 10, 2011, the Court issued a Discovery/Scheduling Order establishing a deadline

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of October 10, 2011, for the parties to complete discovery, including motions to compel. (Doc. 74.)

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On October 11, 2011, Plaintiff filed a motion for an extension of the discovery deadline, and a

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motion to conduct a deposition with the court's assistance. (Docs. 96, 97.) On October 21, 2011,

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Defendant filed an opposition to Plaintiff’s motion for extension of the discovery deadline. (Doc.

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101.) On December 22, 2011, Defendant filed a motion for summary judgment. (Doc. 104.)

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Plaintiff's motions to extend the discovery deadline and to conduct a deposition with the

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court's assistance are now before the court.

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II.

MOTION TO EXTEND DISCOVERY

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),

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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a

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scheduling order must generally show that even with the exercise of due diligence, they cannot meet

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the requirement of the order. Johnson v. Mammoth Recreations, Inc., 975 F2d 604, 609 (9th Cir.

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1992). The court may also consider the prejudice to the party opposing the modification. Id. If the

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party seeking to amend the scheduling order fails to show due diligence the inquiry should end and

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the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302

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F.3d 1080, 1087 (9th Cir. 2002).

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Rule 56 of the Federal Rules of Civil Procedure provides that “[i]f a nonmovant [in a motion

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for summary judgment] shows by affidavit or declaration that, for specified reasons, it cannot present

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facts essential to justify it opposition, the court may: (1) defer considering the motion or deny it; (2)

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allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate

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order.” Fed. R. Civ. P. 56 (d).

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On October 28, 2010, the Court dismissed all other claims and defendants from this action, based on
Plaintiff's failure to state a claim. (Doc. 66.)

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A.

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Plaintiff requests a ninety-day extension of the discovery deadline of October 10, 2011

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established by the Court's Discovery/Scheduling Order in this action, so that he can propound

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interrogatories, conduct a deposition, and request the production of documents from Defendant.

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Plaintiff contends that he was unable to conduct discovery during the allotted time because he is not

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knowledgeable about civil discovery; he did not have sufficient access to the law library while in

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prison; he has not been able to attend the county law library since he was released on parole on May

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21, 2011, and became a transient; and when he attends the library he is unable understand the

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discovery process, even with the use of civil practice manuals. Plaintiff notes that he has complied

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with Defendant's discovery requests, including answering interrogatories and attending a deposition.

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Plaintiff argues that the extension of discovery will not prejudice Defendant because this action has

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already been pending for nearly seven years, and Plaintiff's expected discovery is not extensive.

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Plaintiff seeks to propound seven interrogatories, conduct a deposition, and make a request for

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production of documents. Plaintiff argues that without the information he seeks through discovery,

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he will be unable to oppose Defendant's motion for summary judgment. Plaintiff asserts that he is

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able to commence discovery at this late date by imitating the discovery techniques used by

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Defendant's counsel in this action.

Plaintiff’s Position

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B.

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In opposition, Defendant argues that Plaintiff has not demonstrated sufficient diligence

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during the discovery period to establish good cause for the Court to grant his request to extend

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discovery. Plaintiff did not begin his attempts to obtain discovery until two days before the close

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of the discovery period. (Declaration of Todd Irby ("Irby Decl."), Doc. 101-1 at ¶7; Exhs. E, F.)

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During the past seven years, Plaintiff has sought and received at least ten extensions of time to file

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various pleadings. (Docs. 17, 27, 30, 33, 40, 42, 44, 46, 48, 54.) Defendant argues that, contrary to

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Plaintiff’s assertion of legal procedural and technical ignorance, each of Plaintiff’s motions for

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extension of time demonstrated sufficient familiarity with procedural requirements to obtain the

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desired result. Defendant notes that notwithstanding his transient status, Plaintiff found a way to

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prepare and propound his proposed discovery on Defendant, (Irby Decl. at ¶7; Exhs. E, F.), but has

Defendant’s Position

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offered no evidence to explain why he wasn’t able to formulate the same discovery seven or eight

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months ago. Defendant also argues that his case will be prejudiced by extension of the discovery

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deadline if forced to wait three more months to defend this already stale action.

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C.

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Defendant has presented evidence that Plaintiff failed to conduct any significant discovery

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during the eight-month discovery window established by the Court’s Discovery/Scheduling Order.

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Plaintiff did not commence discovery until October 8, 2011, two days before the discovery deadline,

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when he served his first set of interrogatories on Defendant. (Irby Decl. at ¶ 7; Exh. E.) While

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Defendant argues that Plaintiff is plainly able to participate in litigation, as shown by Plaintiff's

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numerous motions for extension of time, the Court cannot find that Plaintiff’s delay in commencing

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discovery was due to a failure to exercise due diligence. Instead, the Court finds that Plaintiff's delay

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was due to his lack of understanding of the discovery process and his lack of success in finding

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assistance. Learning to navigate the discovery process is a complex undertaking and cannot be

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compared to preparing a motion for extension of time. Plaintiff complains that he lacked adequate

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access to the library, and when he did attend the library he did not understand how to use the

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available materials. Plaintiff admits that he is only able to commence discovery now by imitating

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the discovery techniques used by Defendant’s counsel in this action. The evidence shows that

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Plaintiff never stopped prosecuting this action. Plaintiff complied with Defendant’s discovery

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requests and continued to participate even after he was paroled and struggled with transiency.

Discussion

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Plaintiff maintains that he is unable to oppose Defendant’s pending motion for summary

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judgment without the information he seeks through discovery. Pursuant to Rule 56, the Court shall

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defer considering Defendant’s motion for summary judgment and allow time for Plaintiff to conduct

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limited discovery.

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Plaintiff asserts that he only seeks to propound seven interrogatories and conduct a

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deposition.2 Plaintiff shall be granted leave to propound seven interrogatories upon Defendant.

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Plaintiff also asserted that he sought to make a request for production of documents. (Request, Doc. 96 at
3 ¶4.) However, on January 25, 2012, Plaintiff notified the court that the “production of document request is [] now
not necessary, and can be removed, . . . leaving “two discovery items.” (Motion, Doc. 106 at 2 ¶1.)

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However, Plaintiff's request to conduct a deposition shall be denied, without prejudice. To conduct

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a deposition, Plaintiff must comply with Rule 30 of the Federal Rules of Civil Procedure. The Court

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will direct the Clerk’s Office to send Plaintiff copies of Rules 28, 29, and 30 of the Federal Rules

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of Civil Procedure. If, after reviewing the rules, Plaintiff believes he is able to depose a person in

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compliance with the rules, Plaintiff shall notify the Court and make a showing that he is able and

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willing to retain an officer to take responses and prepare the record.3 Fed. R. Civ. P. 30(b) (emphasis

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added). At that juncture, the Court will consider Plaintiff’s request to seek a deposition and will

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determine what course of action is needed to facilitate the deposition.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for an extension of the discovery deadline in this action is

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GRANTED, for the limited purpose of allowing Plaintiff to propound seven

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interrogatories upon Defendant;

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2.

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The NEW DEADLINE for the completion of discovery, including motions to
compel, is April 6, 2012;

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3.

Pursuant to Rule 56, Defendant's motion for summary judgment, filed on December

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22, 2011, is HELD IN ABEYANCE pending completion of discovery, and Plaintiff

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is EXCUSED from filing an opposition to the motion for summary judgment at this

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stage of the proceedings;

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4.

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Plaintiff’s request to conduct a deposition with court assistance is DENIED, without
prejudice;

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5.

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The Clerk’s Office shall SEND Plaintiff copies of Rules 28, 29, and 30 of the Federal
Rules of Civil Procedure; and

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Plaintiff's in forma pauperis status does not entitle him to payment of costs of depositions.

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In conducting discovery, the parties must comply with Federal Rules of Civil

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Procedure 1, 16, and 26-36, as discussed in the Court's Discovery/Scheduling Order

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of February 10, 2011.

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IT IS SO ORDERED.
Dated:
6i0kij

February 2, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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