Steve J.Noble v. Gonzalez

Filing 52

ORDER denying 51 Motion to Stay and granting plaintiff extension of time to file opposition to motion for summary judgment signed by Magistrate Judge Gary S. Austin on 7/2/2013. Filing Deadline: 9/4/2013(Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

STEVEN JOSEPH NOBLE IV,

12

ORDER DENYING PLAINTIFF’S RULE 56
MOTION FOR STAY, WITHOUT
PREJUDICE
(Doc. 51.)

Plaintiff,

13
14

1:07-cv-01111-LJO-GSA-PC

vs.
LT. V. J. GONZALEZ,

15

ORDER GRANTING PLAINTIFF’S
MOTION FOR EXTENSION OF TIME
TO FILE OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

Defendant.

16
17

SIXTY DAY DEADLINE TO FILE
OPPOSITION

18
19

I.

BACKGROUND

20

Steven Joseph Noble IV ("Plaintiff") is a state prisoner proceeding pro se and in forma

21

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

22

commencing this action on July 31, 2007. (Doc. 1.) This case now proceeds with the First

23

Amended Complaint, filed by Plaintiff on February 24, 2009, against defendant V. J. Gonzalez

24

(“Defendant”), for retaliation in violation of the First Amendment. (Doc. 15.) On December

25

26, 2012, Plaintiff filed a motion to compel discovery responses, which is pending. (Doc. 44.)

26

On May 29, 2013, Defendant filed a motion for summary judgment, which is pending. (Doc.

27

49.)

28

///
1

1

On July 1, 2013, Plaintiff filed a motion for stay under Rule 56, requesting the court to

2

postpone consideration of Defendant’s motion for summary judgment, in light of Plaintiff’s

3

pending motion to compel. (Doc. 51.) In the alternative, Plaintiff requests an extension of time

4

to file an opposition to the motion for summary judgment. Id.

5

II.

RULE 56 MOTION

6

Pursuant to Federal Rule of Civil Procedure 56(d), if a nonmovant to a motion for

7

summary judgment shows by affidavit or declaration that for specified reasons he cannot

8

present facts to oppose the motion, the Court may defer consideration of the motion or allow

9

time for further discovery. Fed. R. Civ. P. 56(d)(1),(2). The nonmovant must identify by

10

affidavit [or declaration] the specific facts that further discovery would reveal, and explain why

11

those facts would preclude summary judgment. Tatum v. City and County of Sacramento, 441

12

F.3d 1090, 1100 (9th Cir. 2006); Johnson v. JP Morgan Chase Bank, No. CV F-008-0081 LJO

13

SMS, 2009 WL 179727, at 2-3 (E.D. Cal. Jan. 26, 2009).
Plaintiff requests the court to postpone consideration of Defendant’s motion for

14
15

summary judgment of May 29, 2013, pending resolution of Plaintiff’s motion to compel of

16

December 26, 2012. Plaintiff has submitted a declaration arguing that he requires the discovery

17

sought in his motion to compel in order to properly prepare, file, and serve his opposition to the

18

motion for summary judgment.
Plaintiff’s declaration does not specify the facts that further discovery would reveal or

19
20

explain why those facts would preclude summary judgment. Therefore, Plaintiff’s Rule 56

21

motion shall be denied, without prejudice to renewal of the motion with a declaration meeting

22

the required standard.

23

III.

MOTION FOR EXTENSION OF TIME

24

In the alternative, Plaintiff requests a sixty-day extension of time to file an opposition to

25

Defendant’s motion for summary judgment. Good cause appearing, the extension of time shall

26

be granted.

27

///

28

///
2

1

IV.

CONCLUSION

2

Based on the foregoing, IT IS HEREBY ORDERED that:

3

1.

4

of Defendant’s motion for summary judgment, is DENIED without prejudice; and

5
6

Plaintiff’s Rule 56 motion, requesting postponement of the court’s consideration

2.

Plaintiff is GRANTED sixty days from the date of service of this order in which

to file an opposition to Defendant’s motion for summary judgment of May 29, 2013.

7
8
9

IT IS SO ORDERED.
Dated:

10
11
12

July 2, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3