Knapp v. Cate, et al.

Filing 141

ORDER Denying Plaintiff's Motion to Continue Summary Judgment 140 , signed by Magistrate Judge Barbara A. McAuliffe on 11/30/12. Opposition Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC CHARLES RODNEY KNAPP,

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CASE NO. 1:08-cv-01779-AWI-BAM PC

Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION TO
CONTINUE SUMMARY JUDGMENT

v.
(ECF Nos. 140)

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MATTHEW CATE, et al.,
OPPOSITION DUE WITHIN THIRTY DAYS

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Defendants.
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Plaintiff Eric Charles Rodney Knapp (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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on the third amended complaint, filed September 29, 2010, against Defendants Koenig, Pate, Otto,

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Backlund, Roberson, Clay, Gibb, Hannah, Semsen, Lyons, and Esquer for deliberate indifference

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to Plaintiff’s need for single cell status in violation of the Eighth Amendment.

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On September 25, 2012, Defendants filed a motion for summary judgement and motion for

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a protective order, and an order issued on September 26, 2012, staying the discovery in this action

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and ordering Plaintiff to file a response to the motion for summary judgement within thirty days.

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(ECF Nos. 128, 129, 130.) On November 29, 2012, Plaintiff filed a rule 56(d) motion. (ECF No.

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140.) Plaintiff brings this motion on the grounds that he has diligently pursued discovery and cannot

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present evidence that Defendants knew he was at a serious risk of harm by being required to double

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cell.

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Pursuant to Federal Rule of Civil Procedure 56(d) when

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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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discover 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.

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1998) (quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987).

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

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

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1987).

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Plaintiff states that he needs further discovery to obtain evidence regarding the state of mind

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of the defendants in denying him single cell status. However, the issue raised in the motion for

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summary judgment is that Plaintiff was not denied single cell status from July 31, 2008, through

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November 16, 2008, when he was transferred for mental health treatment. Therefore, whether

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Defendants knew that Plaintiff was at a risk of serious harm will not preclude summary judgment

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in this instance. Since the only issue is whether Plaintiff was double celled during the time period

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from July 31, 2008 through November 16, 2008, Plaintiff’s motion for a continuance of Defendants’

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motion for summary judgement is HEREBY DENIED. Within thirty days from the date of service

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of this order, Plaintiff shall file an opposition to Defendants’ motion for summary judgment.

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IT IS SO ORDERED.
Dated:
10c20k

November 30, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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