Kinney v. Brazelton, et al.

Filing 56

ORDER DENYING Plaintiff's 51 Motion to Reopen Discovery; ORDER Requiring Defendant to Submit Documents for in Camera Review; ORDER Setting Telephonic Discovery Dispute Conference on June 21, 2016 at 2:00 p.m. signed by Magistrate Judge Michael J. Seng on 05/27/2016. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIJON KINNEY,

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Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
TO REOPEN DISCOVERY (ECF No. 51)

P.D. BRAZELTON, et al.,

ORDER REQUIRING DEFENDANT TO
SUBMIT DOCUMENTS FOR IN CAMERA
REVIEW

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CASE NO. 1:14-cv-00503-AWI-MJS (PC)

v.

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Defendants.

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ORDER SETTING TELEPHONIC
DISCOVERY DISPUTE CONFERENCE

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Date: June 21, 2016

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Time: 2:00 p.m.

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I.

INTRODUCTION
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against
Defendant Flores on Plaintiff’s Eighth Amendment claims for inadequate medical care
and cruel and unusual punishment.
Discovery in this action closed on July 7, 2015. (ECF No. 20.) The deadline was
extended to July 21, 2015 for the limited purpose of conducting Plaintiff’s deposition outof-state. (ECF No. 30.)

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After the expiration of the discovery cut-off, Plaintiff moved to extend the

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discovery cut-off by ninety days. (ECF No. 33.) The motion was denied for failure to

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show good cause. (ECF No. 35.)

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On October 2, 2015, Defendant filed a motion for summary judgment. (ECF No.

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37.) The motion is fully briefed and pending disposition by the Court. (See ECF Nos. 39,

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42, 44, 47, 50.)

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Plaintiff again moved to re-open discovery on January 15, 2016, presumably to

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seek evidence in opposition to Defendant’s motion for summary judgment. (ECF No. 46.)

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That motion also was denied for failure to show good cause. (ECF No. 51.)

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Before the Court is Plaintiff’s third motion to reopen discovery. (ECF No. 51.) The

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instant motion is brought pursuant to Federal Rule of Civil Procedure 56(d). 1 Defendant

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filed no opposition and the time for doing so has passed. The matter is deemed

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submitted. Local Rule 230(l).

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 56(d) permits the Court to delay consideration of

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a motion for summary judgment to allow parties to obtain discovery to oppose the

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motion. When a motion for summary judgment is filed “before a party has had any

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realistic opportunity to pursue discovery relating to its theory of the case,” a Rule 56(d)

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motion should be freely granted. Burlington N. Santa Fe R.R. Co. v. Assiniboine and

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Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003).

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A party asserting that discovery is necessary to oppose a motion for summary

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judgment “shall provide a specification of the particular facts on which discovery is to be

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had or the issues on which discovery is necessary.” Local Rule 260(b). However, where

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“no discovery whatsoever has taken place, the party making a Rule 56[(d)] motion

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cannot be expected to frame its motion with great specificity as to the kind of discovery

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Plaintiff’s motion refers to Rule 56(f); however, this appears to be an erroneous reference to the pre-2010
version of the Rules. The provisions for delaying consideration of a motion for summary judgment to allow
for additional discovery are now contained in Rule 56(d).

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likely to turn up useful information, as the ground for such specificity has not yet been

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laid.” Burlington N., 323 F.3d at 774. “The Courts which have denied a Rule 56[(d)]

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application for lack of sufficient showing to support further discovery appear to have

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done so where it was clear that the evidence sought was almost certainly nonexistent or

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was the object of pure speculation.” VISA Int’l. Serv. Ass’n v. Bankcard Holders of Am.,

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784 F.2d 1472, 1475 (9th Cir. 1986) (citation omitted).

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Where a party requests to reopen discovery after discovery has closed, the

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request also must meet the requirements of Federal Rule of Civil Procedure 16. Districts

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courts must enter scheduling orders that “limit the time to join other parties, amend the

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pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once

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entered by the court, a scheduling order “controls the course of the action unless the

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court modifies it.” Fed. R. Civ. P. 16(d). Scheduling orders are intended to alleviate case

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management problems. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th

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Cir.1992). As such, a scheduling order is “not a frivolous piece of paper, idly entered,

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which can be cavalierly disregarded by counsel without peril.” Id. (quoting Gestetner

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Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Maine 1985)). Good cause must be

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shown for modification of the scheduling order. Fed. R. Civ. P. 16(b)(4). The Ninth Circuit

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explained:

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Rule 16(b)'s “good cause” standard primarily considers the
diligence of the party seeking the amendment. The district
court may modify the pretrial schedule if it cannot reasonably
be met despite the diligence of the party seeking the
extension. Moreover, carelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.
Although the existence of a degree of prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party’s reasons for seeking modification. If that party was not
diligent, the inquiry should end.

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Johnson, 975 F.2d at 609 (internal quotation marks and citations omitted). Therefore,

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parties must “diligently attempt to adhere to the schedule throughout the course of the

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litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). The party

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requesting modification of a scheduling order may be required to show:

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(1) that she was diligent in assisting the Court in creating a
workable Rule 16 order, (2) that her noncompliance with a
Rule 16 deadline occurred or will occur, notwithstanding her
diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference,
and (3) that she was diligent in seeking amendment of the
Rule 16 order, once it become apparent that she could not
comply with the order.

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Id. at 608 (internal citations omitted).
III.

DISCUSSION
Plaintiff seeks (1) a copy of his own deposition (2) documents pertaining to

internal affairs investigations and investigations by the Office of the Inspector General
into the incident at issue in this case, (3) video footage of the incident, and (4)
photographs taken by medical staff and the Office of the Inspector General.
In support of his motion, Plaintiff claims that he believed he would be represented
by counsel in this action and therefore did not pursue discovery as required. Attached to
the motion are documents reflecting that Plaintiff conferred with counsel in 2012 and
early 2013 and, indeed, may have signed a retainer agreement with an attorney. It is
unclear whether counsel was retained for purposes of filing suit in relation to this incident
or something else. Regardless, this action was filed by Plaintiff himself in April 2014.
Given Plaintiff’s decision to initiate this action pro se after conferring with counsel, he
cannot credibly claim that he believed he was represented in this action. He therefore
fails to present good cause to justify reopening discovery.
Nevertheless, to facilitate the efficient resolution of discovery issues and enable
summary judgment and/or trial to proceed upon consideration of all relevant evidence,
the Court will set this matter for a telephonic discovery dispute conference. The parties
will be ordered to meet and confer, prior to the conference, and to attempt to resolve
without Court intervention Plaintiff’s requests for transcripts, videos, and photographs.
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Defense counsel will be ordered to provide certain records, specified below, for the

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Court’s in camera review prior to the conference.

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IV.

CONCLUSION AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s motion to reopen discovery (ECF No. 51) is DENIED.

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2. This matter is set for a telephonic discovery dispute conference on June 21,

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2016 at 2:00 p.m.

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3. Defense counsel shall arrange for Plaintiff’s participation in the conference.

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4. The Parties shall participate by calling [phone] and then entering

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access code 4446176#.
5. Prior to the conference, the parties shall meet and confer to attempt to resolve
Plaintiff’s requests for transcripts, videos, and photographs.

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6. No

later

than

June

15,

2016,

Defendant

shall

submit

to

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[e-mail] the following documents for in camera review:

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any and all documents in Defendant's possession, custody, or subject to his

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control relating to the investigation of the August 14, 2012 incident by the

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California Department of Corrections and Rehabilitation and/or the Office of

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the Inspector General.

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7. Simultaneous with such submission, Defendant shall file and serve a

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statement of objections, if any he has, to release of such documents to

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Plaintiff. Objections that the discovery requests are untimely need not be

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repeated. If Defendant contends that such documents should only be released

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pursuant to a protective order, Defendant may provide a proposed protective

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order for the Court’s review.
IT IS SO ORDERED.
Dated:

May 27, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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