Misko v. Sullivan et al

Filing 77

ORDER REGARDING Plaintiff's 75 Request for Delay of Defendant's Summary Judgment; ORDER DIRECTING Defendant to Serve Plaintiff With a Corrected Copy of the Cross-Motion for Summary Judgment and File Proof of Service Within Seven (7) Days, signed by Magistrate Judge Barbara A. McAuliffe on 5/27/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN T. MISKO,

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Plaintiff,

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v.
WILLIAM SULLIVAN, et al.,

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Defendants.

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1:10-cv-00713-LJO-BAM (PC)
ORDER REGARDING PLAINTIFF’S
REQUEST FOR DELAY OF
DEFENDANT’S SUMMARY JUDGMENT
(ECF No. 75)
ORDER DIRECTING DEFENDANT TO
SERVE PLAINTIFF WITH A CORRECTED
COPY OF THE CROSS-MOTION FOR
SUMMARY JUDGMENT AND FILE
PROOF OF SERVICE WITHIN SEVEN (7)
DAYS

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Plaintiff John T. Misko (“Plaintiff”) is a 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. This action currently proceeds

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against Defendant Williams for deliberate indifference in violation of the Eighth Amendment.

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On February 20, 2015, the Court extended the dispositive motion deadline to April 24,

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2015. (ECF No. 70.)

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On February 23, 2015, Plaintiff filed a dispositive motion. (ECF No. 71.) Defendants

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opposed the motion on April 27, 2015. (ECF No. 74.)

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On April 24, 2015, Defendant Williams filed a cross-motion for summary judgment. Fed.

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R. Civ. P. 56. Although Plaintiff was provided with notice of the requirements for opposing a

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motion for summary judgment, he failed to timely file an opposition.

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On May 22, 2015, the Court issued an order requiring Plaintiff to file an opposition or

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statement of non-opposition to Defendant’s cross-motion for summary judgment within twenty-

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on (21) days. (ECF No. 76.) On the same date, Plaintiff filed the instant motion requesting that

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the Court either deny Defendant’s motion for summary or stay it until he can obtain the

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necessary affidavits and other evidence. Plaintiff also reports that Defendant failed to send him

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the correct first page of the memorandum of points and authorities. (ECF No. 75.)

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Plaintiff’s request for a stay of Defendant’s cross-motion for summary judgment to obtain

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affidavits and evidence is governed by Federal Rule of Civil Procedure 56(d). Rule 56(d)

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provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it

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

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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). In seeking relief under Rule 56(d),

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

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

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sought actually exists and that it would prevent summary judgment. Blough v. Holland Realty,

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Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Getz v.

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Boeing Co., 654 F.3d 852, 867-68 (9th Cir. 2011); Tatum v. City and County of San Francisco,

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441 F.3d 1090, 1100-01 (9th Cir. 2006). Plaintiff has made no such showing and his generalized

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assertions are not sufficient. Therefore, Plaintiff’s motion to defer or deny Defendant’s motion

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for summary in order to obtain affidavits and discovery shall be denied, without prejudice.

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Nonetheless, the Court finds a brief extension of time appropriate so that Plaintiff may

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obtain a correct copy of Defendant’s motion for summary judgment and supporting

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memorandum of points and authorities. Defendant will be directed to re-serve Plaintiff with a

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correct copy of the motion and supporting papers and submit proof of service to the Court.

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Thereafter, Plaintiff’s opposition or statement of non-opposition shall be filed within twenty-one

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(21) days following service of the corrected motion for summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to defer or deny Defendant’s motion for summary in order to obtain

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affidavits and discovery is DENIED, without prejudice;
2. Defendant Williams shall serve Plaintiff with a corrected copy of the motion for

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summary judgment and supporting papers within seven (7) days following the date of

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this order and file proof of service with this Court;

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3. Within twenty-one (21) days following service of Defendant’s corrected motion for

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summary judgment, Plaintiff shall serve and file his opposition or statement of non-

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opposition.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 27, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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