Tabatabaee v. Santoro et al

Filing 68

ORDER Denying Plaintiff's 66 Motion to Stay under Rule 56; ORDER for Plaintiff to File Opposition to Defendants' Motion for Summary Judgment within 21 Days signed by Magistrate Judge Gary S. Austin on 04/13/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S
MOTION TO STAY UNDER RULE 56
(ECF No. 66.)

Plaintiff,

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1:14-cv-01545-LJO-GSA-PC

ALEX TABATABAEE,

vs.

ORDER FOR PLAINTIFF TO FILE
OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
WITHIN 21 DAYS

K. SANTORO, et al.,

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Defendants.

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TWENTY-ONE DAY DEADLINE

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I.

BACKGROUND

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Alex Tabatabaee (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. On October 2, 2014, Plaintiff filed the Complaint

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commencing this action. (ECF No. 1.) This case now proceeds with the Second Amended

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Complaint filed on May 25, 2016, against defendants Santoro, Marshall, Thompson, Gomez,

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Ruiz, McKee, Ervin, Thomas, and Yoder, on Plaintiff’s claims for conspiracy and retaliation.

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(ECF No. 48.)

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On February 23, 2016, the court issued a discovery and scheduling order establishing

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deadlines for the parties, including a discovery cut-off date of July 22, 2016, and a dispositive

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motions deadline of September 20, 2016. (ECF No. 34.) On October 18, 2016, the discovery

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cut-off date was extended to January 30, 2017. (ECF No. 65.) All of the deadlines have now

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expired.

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On September 20, 2016, defendants Ervin, Gomez, Marshall, McKee, Ruiz, Santoro,

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Thomas, and Thompson filed a motion for summary judgment. (ECF No. 62.) On November
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15, 2016, defendant Yoder filed a joinder. (ECF No. 67.) Plaintiff has not filed an opposition

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to the motion for summary judgment.

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On October 24, 2016, Plaintiff filed a motion to stay Defendants’ motion for summary

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judgment under Rule 56, to allow Plaintiff more time for discovery and to prepare his

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opposition to Defendants’ motion for summary judgment. (ECF No. 66.) Defendants have not

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filed an opposition to the motion to stay.
Plaintiff’s motion to stay is now before the court.

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II.

MOTION TO STAY MOTION FOR SUMMARY JUDGMENT – RULE 56

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Rule 56(d) of the the Federal Rules of Civil Procedure provides, “[i]f a nonmovant [in a

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motion for summary judgment] 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 order to gain a continuance under

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Rule 56(d), Plaintiff must identify by affidavit the specific facts that further discovery would

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reveal, and explain why those facts would preclude summary judgment. Tatum v. City and

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County of Sacramento, 441 F.3d 1090, 1100 (9th Cir. 2006); Tuvalu v. Woodford, No. CIV S-

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04-1724 RRB KJM P, 2007 WL 2900175, at 1-4 (E.D. Cal. Sept. 28, 2007).

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Plaintiff requests the court to stay Defendants’ motion for summary judgment for 141

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days, until he has completed discovery and all discovery issues are resolved. More specifically,

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Plaintiff asserts that he needs more discovery for these reasons: (1) Defendants’ motion for

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summary judgment is premature, because Plaintiff’s motions to compel and motion to extend

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the discovery deadline are pending; (2) Plaintiff has many unresolved discovery disputes with

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Defendants and their counsel about documents that were not produced pursuant to Plaintiff’s

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requests for production of documents served on April 22, 2016, April 28, 2016, May 9, 2016,

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and July 1, 2016; (3) Plaintiff needs additional time to obtain discovery from defendant Yoder

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who was served with process after the other Defendants; (4) Defendants have not answered the

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complaint; (5) Plaintiff needs time to propound interrogatories and additional requests for

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production of documents upon all of the Defendants; (6) Plaintiff is inexperienced in law and
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has chronic medical conditions that affect his ability to conduct legal work; and (5) Plaintiff has

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not received the documents requested from Defendants in his fourth request for production of

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documents.

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Since the time that Plaintiff filed the motion to stay, discovery was extended until

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January 30, 2017; Plaintiff’s motions to compel were resolved; and more than five months have

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passed. Plaintiff has had ample time to complete the discovery he needs to oppose Defendants’

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motion for summary judgment. There is no indication on the court record of discovery issues

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pending in this case, and no further motions to compel have been filed. The only motion now

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pending in this case is Defendants’ motion for summary judgment. For these reasons, the court

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does not find good cause at this stage of the proceedings to extend discovery or defer ruling on

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the motion for summary judgment. Therefore, Plaintiff’s motion to stay shall be denied, and

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Plaintiff shall be required to file his opposition within twenty-one days.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to stay Defendants’ motion for summary judgment under Rule
56 is DENIED;

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Plaintiff is required to file an opposition or a notice of non-opposition to

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Defendants’ motion for summary judgment within twenty-one days of the date

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of service of this order; and

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3.

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Plaintiff’s failure to comply with this order may result in the dismissal of this
case.

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IT IS SO ORDERED.
Dated:

April 13, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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