Fields v. Benuelos

Filing 39

ORDER Denying 34 Plaintiff's Rule56(D) Motion and Requiring Plaintiff to File an Opposition within Sixty Days, signed by Magistrate Judge Sheila K. Oberto on 11/30/11. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEVIN E. FIELDS,

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CASE NO. 1:09-cv-01868-SKO PC
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S RULE 56(D)
MOTION AND REQUIRING PLAINTIFF TO
FILE AN OPPOSITION WITHIN SIXTY DAYS

E. BENUELOS,

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(Doc. 34)
Defendant.
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Plaintiff Kevin E. Fields, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant

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Benuelos for retaliation, in violation of the First Amendment.

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Pursuant to the scheduling order issued on April 12, 2011, the deadline for the completion

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of all discovery is December 12, 2011. On September 15, 2011, Defendant filed a motion for

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summary judgment, and on October 3, 2011, Plaintiff filed a motion seeking to defer the ruling on

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Defendant’s motion pending completion of discovery. Fed. R. Civ. P. 56(d). On October 19, 2011,

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Defendant filed a conditional statement of non-opposition to granting Plaintiff a ninety-day extension

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of time to complete discovery and file his opposition.

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Pursuant to Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified

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reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering

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the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)

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issue any other appropriate order.” Fed. R. Civ. P. 56(d). Plaintiff bears the burden of specifically

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identifying relevant information, where there is some basis for believing that the information actually
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exists, and demonstrating that the evidence sought actually exists and that it would prevent summary

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judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks

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and citation omitted); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir.

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2006).

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At issue in this case is whether Defendant confiscated Plaintiff’s Kool-Aid and issued him

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a serious rules violation report for possession of pruno in retaliation against him for his litigation

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activities. (Doc. 1.) 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 summary judgment, Plaintiff need only raise a genuine issue of material fact

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as to whether adverse action was taken against him in retaliation for his exercise of a protected right,

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e.g., Bruce v. Ylst, 351 F.3d 1283, 1289-90 (9th Cir. 2003).

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Although Plaintiff asserts that he needs further discovery to respond to Defendant’s motion,

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the discovery phase of this litigation commenced on April 12, 2011, and it is set to close on

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December 12, 2011. Plaintiff’s general statement that he needs discovery does not suffice to defer

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consideration of Defendant’s motion for summary judgment, and he has made no showing that the

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specific evidence he seeks is necessary to prevent summary judgment. As a practical matter, the

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resolution of this motion and the assignment of a sixty-day deadline to respond puts the due date for

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Plaintiff’s opposition well beyond the close of discovery, providing Plaintiff with ample time to

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prepare and file an opposition.

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Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s Rule 56(d) motion is DENIED; and

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2.

Within sixty (60) days from the date of service of this order, Plaintiff shall file his

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opposition to Defendant’s motion for summary judgment.

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IT IS SO ORDERED.

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Dated:
ie14hj

November 30, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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