Singleton, Sr. v. Biter, et al.

Filing 78

ORDER Granting Plaintiff's 74 Motion for Limited Discovery Under Rule 56(D), signed by Magistrate Judge Dennis L. Beck on 07/09/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMAR SINGLETON,

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Plaintiff,

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vs.
BITER, et al.,
Defendants.

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1:12cv00043 AWI DLB PC
ORDER GRANTING PLAINTIFF’S
MOTION FOR LIMITED DISCOVERY
UNDER RULE 56(D)
(Document 74)

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Plaintiff Lamar Singleton (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action on January 9, 2012. This action is proceeding against

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Defendants Biter and Lopez for violation of the Eighth Amendment.

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On November 21, 2013, Defendants filed a Motion to Dismiss based on Plaintiff’s
alleged failure to exhaust his administrative remedies. On April 17, 2014, the Court vacated the
Findings and Recommendations regarding Defendants’ motion and converted the motion into a

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motion for summary judgment. The Court also ordered the parties to inform the Court whether
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discovery related to exhaustion was necessary.

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On April 30, 2014, Defendants confirmed that they did not need additional discovery.

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On June 12, 2014, Plaintiff filed his motion pursuant to Federal Rule of Civil Procedure
56(d). Defendants did not oppose the motion and it is now deemed submitted pursuant to Local
Rule 230(l).

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DISCUSSION
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A.

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

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LEGAL STANDARD

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

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defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to

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take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).
In seeking relief under Rule 56(d), Plaintiff bears the burden of specifically identifying

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relevant information, where there is some basis for believing that the information actually exists,

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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

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marks and citation omitted); Getz v. Boeing Co., 654 F.3d 852, 867-68 (9th Cir. 2011); Tatum v.
City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006).
B.

ANALYSIS

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At issue in the exhaustion analysis is whether Plaintiff submitted any appeals to the Third
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Level of Review and/or whether he can demonstrate the existence of circumstances excusing
exhaustion. In his request for discovery, Plaintiff requests discovery regarding “3rd Level
Exhaustion related to complaint PVSP 13049744.”1 Mot. 1.

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The Court notes that in his opposition to Defendants’ motion, Plaintiff did not dispute Defendants’ contention that
he had not submitted any appeal to the Third Level of Review. Instead, he argued that he did everything in his
power to exhaust and faced an uncontrollable burden.
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After reviewing Plaintiff’s request, the Court GRANTS Plaintiff’s motion and will permit
discovery limited to PVSP appeal 13049744. Plaintiff may serve requests for production
and/or interrogatories requesting the information specified.
Plaintiff must serve this limited discovery within twenty-one (21) days of the date of

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service of this order. Defendants must respond within thirty (30) days of service.
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Any supplemental opposition shall be due within thirty (30) days of receiving responses
to discovery. Defendants’ reply, if any, shall be due within fourteen (14) days of service of the
supplemental opposition.

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IT IS SO ORDERED.
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Dated:

/s/ Dennis

July 9, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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