Scott v. Palmer et al

Filing 64

ORDER DENYING 50 Motion Rule 56 (D) ; ORDER GRANTING 42 Defendants' Motion to Stay Discovery; ORDER OVERRULING Objections, Disregarding Reply and Evidentiary Objections; ORDER GRANTING 60 Motion for Extension of Time within which to file a reply; ORDER DENYING Plaintiff's Motion for an Extension of Time as MOOT 54 , 55 , 62 , signed by Magistrate Judge Sheila K. Oberto on 12/07/2011. (Case Management Deadline: 1/10/2012) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FLOYD SCOTT,

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Plaintiff,

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CASE NO. 1:09-cv-01329-AWI-SKO PC
ORDER DENYING PLAINTIFF’S RULE 56(D)
MOTION AND GRANTING DEFENDANTS’
MOTION TO STAY DISCOVERY

v.
J. PALMER, et al.,

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(Docs. 42 and 50)
Defendants.

ORDER OVERRULING OBJECTIONS,
DISREGARDING REPLY AND
EVIDENTIARY OBJECTIONS, GRANTING
DEFENDANTS’ REQUEST FOR THIRTY
DAYS WITHIN WHICH TO FILE A REPLY,
AND DENYING PLAINTIFF’S MOTION FOR
AN EXTENSION OF TIME AS MOOT

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(Docs. 54, 55, 60, and 62)
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I.

Procedural History

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Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant

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to 42 U.S.C. § 1983 on July 29, 2009. This action is proceeding against Defendants Palmer, Rivera,

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and Lopez on Plaintiff’s Eighth Amendment excessive force claim. Pending before the Court are

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several issues relating to Defendants’ motions for summary judgment and to stay discovery, and

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Plaintiff’s motion to defer consideration of the motion for summary judgment pending further

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discovery, summarized as follows.

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On August 30, 2011, Defendants filed a motion for summary judgment, and on August 31,

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2011, Defendants filed a motion seeking a stay of discovery pending resolution of their motion for

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summary judgment or, if denied, a thirty-day extension of time to respond to Plaintiff’s discovery

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requests. On September 2, 2011, the Court partially granted Defendants’ motion and stayed

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discovery pending Plaintiff’s responses to the motions to stay and for summary judgment.

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On September 9, 2011, prior to receipt of the September 2 order, Plaintiff filed (1) a motion

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seeking re-service of the motion for summary judgment and for sanctions and (2) a motion to compel

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and for sanctions. On September 19, 2011, the Court granted Plaintiff’s motion for re-service,

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denied Plaintiff’s motions to compel and for sanctions, and ordered Plaintiff to comply with the

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September 2 order within forty-five days. The same day, following electronic service of the order,

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Defendants filed a proof of re-service of their motion for summary judgment.

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On September 23, 2011, Defendants filed a motion seeking an extension of time to file a
reply, which the Court granted on September 27, 2011.

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On September 30, 2011, Defendants filed evidentiary objections, and an opposition and a

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reply to Plaintiff’s September 16 filing, which they construed as both a Rule 56(d) motion and an

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opposition to their motion for summary judgment. Plaintiff filed objections to Defendants’ reply on

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October 6, 2011, and a response to their evidentiary objections.

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On October 17, 2011, Plaintiff filed a motion seeking an extension of time to file his

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opposition to Defendants’ motion for summary judgment, and on October 18, 2011, Plaintiff filed

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an opposition to the motion. Defendants filed objections to the opposition on October 24, 2011, and

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Plaintiff filed a response to their objections on November 7, 2011.

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II.

Rule 56(d) Motion

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Turning first to Plaintiff’s Rule 56(d) motion, “[i]f a nonmovant shows by affidavit or

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declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the

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court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or

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declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).

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Plaintiff bears the burden of specifically identifying relevant information, where there is some basis

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for believing that the information actually exists, and demonstrating that the evidence sought actually

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exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084,

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1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Tatum v. City and County of San

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Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006).
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The discovery phase of this litigation commenced on June 28, 2011, and Defendants filed

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a motion for summary judgment on August 30, 2011. Defendants argue that (1) Plaintiff’s excessive

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force claim is barred by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997) and Heck v.

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Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), because Plaintiff lost time credits and a finding

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in his favor would bring into question the length of his sentence, (2) the force used was reasonable

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under the circumstances, and (3) they are entitled to qualified immunity.

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Plaintiff contends very generally that Defendants are delaying his receipt of discovery and

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he needs the responses to oppose their motion for summary judgment. Plaintiff also argues that he

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is seeking complaints filed against Defendant Palmer because he believes Palmer previously used

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excessive force against inmates, and he is seeking documentation or information regarding the

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employment-related consequences Defendants suffered following the incident.

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Regarding the loss of time credits, Plaintiff has made no showing that he needs specific

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discovery to respond to this argument, and the Court notes that in his opposition, Plaintiff argues that

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he is serving a sentence life without the possibility of parole and he lost behavior/work credits, not

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time credits.1 It is unclear what other information exists, is obtainable only through discovery, and,

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critically, is necessary to oppose the motion on this ground.

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Regarding the other issues, this is an excessive force case and the issue is whether the force

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at issue was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995 (1992) (quotation

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marks omitted). The Court may not, on summary judgment, weigh the evidence or assess the

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credibility of witnesses, Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1035-36 (9th

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Cir. 2005), and to defeat judgment, Plaintiff need only show that a reasonable jury could have found

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that the force used was excessive, Lolli v. County of Orange, 351 F.3d 410, 416 (9th Cir. 2003).

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In this instance, Plaintiff’s verified complaint and his declaration set forth his version of

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events and have evidentiary value to the extent that they are based on his personal knowledge and

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contain facts admissible in evidence to which he is competent to testify. Lew v. Kona Hosp., 754

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The Court anticipates Defendants will address this issue in their reply.

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F.2d 1420, 1423 (9th Cir. 1985) (quotation marks omitted); Jones v. Blanas, 393 F.3d 918, 923 (9th

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Cir. 2004). Plaintiff’s general statement that he needs discovery does not suffice to stave off

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consideration of Defendants’ motion for summary judgment, and Plaintiff has made no showing that

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evidence concerning Defendant Palmer’s past misconduct, if any, and Defendants’ punishment for

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the incident, if any, would prevent summary judgment. Accordingly, Plaintiff’s Rule 56(d) motion

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is denied.

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In light of that ruling, Defendants’ motion to stay discovery pending resolution of their

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motion for summary judgment is granted. In the event that Defendants’ motion for summary

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judgment is denied in whole or in part, the Court will issue an amended scheduling order.

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III.

Objections to Opposition

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Turning to the briefing on Defendants’ motion for summary judgment, Defendants object

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Plaintiff’s October 18 opposition on the ground that Plaintiff already opposed their motion on

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September 16 and he is estopped from claiming his October 18 filing is his first opposition, briefing

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is complete on the motion, and Plaintiff did not obtain leave of court to file additional briefing. For

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the reasons that follow, Defendants’ objections are without merit.

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The relevant September 16 filing is captioned “Plaintiff’s Opposition to Defendants [sic]

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Motion for Summary Judgment per FRCPR 56(d).” Although Plaintiff used the word opposition in

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the caption, the Court previously ordered Plaintiff to either file an opposition or a Rule 56(d) motion

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and his filing both complies with the order and clearly identifies Rule 56(d) as the basis for relief.

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Review of the substance of the filing likewise reveals it to be a Rule 56(d) motion rather than a

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merits-based opposition to the summary judgment motion, and Plaintiff concludes the filing with a

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request for relief pursuant to Rule 56(d). It is unclear why Defendants construed the filing as both

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a Rule 56(d) motion and an opposition on the merits, but the Court finds the latter construction

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unsupportable in light of the record. Therefore, Defendants’ objection to Plaintiff’s October 18

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opposition is overruled, and their reply and evidentiary objections filed on September 30, 2011, are

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disregarded.

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Defendants’ request for a thirty-day extension of time to reply should their objections be

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overruled is granted. Briefing on Defendants’ motion for summary judgment will be complete upon
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the expiration of this deadline. Local Rule 230(l). In resolving Defendants’ motion, only the

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motion, the opposition, and the reply, if any, will be considered. (Docs. 40, 41, 58.) All other filings

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to date, including objections, are considered resolved via the issuance of this order.

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IV.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s Rule 56(d) motion, filed September 16, 2011, is denied;

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2.

Defendants’ motion to stay discovery pending resolution of their motion for summary

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judgment, filed August 31, 2011, is granted;

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3.

Defendants’ objections to Plaintiff’s opposition, filed October 24, 2011, are

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overruled, and Defendants’ reply and evidentiary objections, filed September 30,

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2011, are disregarded;

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Defendants’ request for a thirty-day extension of time to file a reply is granted; and

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Plaintiff’s motion for an extension of time to file his opposition, filed October 17,

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2011, is denied as moot.

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IT IS SO ORDERED.

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Dated:
ie14hj

December 7, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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