Cochran v. Aguirre, et al.

Filing 71

ORDER denying Motion to defer ruling on Defendant's exhaustion-related motion for summary judgment; granting Plaintiff 30 days to file supplemental opposition re 67 , 70 signed by Magistrate Judge Stanley A. Boone on 12/14/2016. (Filing Deadline: 1/17/2017). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILLY COY COCHRAN,
Plaintiff,

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v.

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E. AGUIRRE,
Defendant.

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Case No.: 1:15-cv-01092-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
DEFER RULING ON DEFENDANT’S
EXHAUSTION-RELATED MOTION FOR
SUMMARY JUDGMENT, GRANTING
PLAINTIFF THIRTY DAYS TO FILE A
SUPPLEMENTAL OPPOSITION
[ECF Nos. 67, 70]

Plaintiff Billy Coy Cochran is appearing pro se in this civil rights action pursuant to 42 U.S.C.

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§ 1983.
Currently before the Court is Plaintiff’s motion to defer ruling on Defendant Aguirre’s
exhaustion-related motion for summary judgment, filed October 31, 2016.

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On November 1, 2016, the Court directed Defendant to file a response to Plaintiff’s request for

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additional discovery to oppose the pending motion for summary judgment. (ECF No. 69.) Defendant

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filed a response on December 1, 2016. (ECF No. 70.) Plaintiff did not file a reply, therefore the

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motion is deemed submitted for review without oral argument. Local Rule 230(l).

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In his motion, Plaintiff contends that he needs additional documentation to oppose Defendant’s

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exhaustion-related motion for summary judgment because he has been denied access to his legal

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materials after his transfer to Valley State Prison (VSP) and contends items have been removed from

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his central file. (ECF No. 67.)

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Rule 56(d) provides that “[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). In seeking relief under Rule 56(d), Plaintiff

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

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believing that the information actually exists, and demonstrating that the evidence sought actually

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exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084,

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1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Getz v. Boeing Co., 654 F.3d 852,

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867-868 (9th Cir. 2011); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-1101 (9th

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Cir. 2006).
As an initial matter, Defendant submits that Plaintiff responded to Defendant’s discovery

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requests where Defendant sought “all administrative appeals [Plaintiff] contend[s] [Plaintiff]

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submitted concerning [his] allegations in the Complaint.” (Def.’s Mot. for Summ. J., Interrog. No. 15,

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Sept. 26, 2016, ECF No. 52-16, at p.8.) Defendant also requested that Plaintiff “[p]roduce all

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DOCUMENTS identified in response to interrogatory number 15.” (Id. at p. 14.) All of the

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documentation is attached to Defendant’s motion for summary judgment. (ECF No. 52.) Defendant

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has agreed to serve Plaintiff an additional copy of all items produced in response to discovery,

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including all exhibits attached to the pending motion for summary judgment. (ECF No. 70, Attach.

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A.)

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Defendant further submits that Plaintiff arrived at VSP on September 21, 2016, with two boxes

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of property. (ECF No. 70-4, Pacifico Decl., ¶ 3.) VSP received two additional boxes of Plaintiff’s

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property on October 10, 2016. (Id. at ¶ 4.) Because the property boxes contain both personal and

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legal property, it is uncertain how much of the property related to Plaintiff’s legal claims. (Id. at ¶ 5.)

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Plaintiff is permitted to possess up to six cubic feet of property and one cubic foot of personal

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property. (Id. at ¶ 6.) Any remaining property is stored in receiving and release and Plaintiff may

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submit requests to obtain those items. (Id. at ¶ 7.) Plaintiff requested and received documents from

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his central file on October 28, 2016. (Id. at ¶ 8.) Indeed, the CDC-128 D form, dated October 28,

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2016, states, “[o]n 10/28/16, at approximately 1020 hours I received 226 copies of all of my

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grievances filed from 6/1/13 to present Appeal LOG#FSP-12-00129, 24 copies of all of my Rules

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Violation Reports from Folsom State Prison, 1 copy of Notice Of Classification Hearing [dated]

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10/26/15, 1 copy of CDC 7219 [dated] 4/15/16, and 72 copies of Administrative Segregation Unit
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Placement Notices from 6.1.13 to present from my assigned counselor. This came to a grand total of

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325 copies.” (ECF No. 70-4, Attach. B.) In addition, Plaintiff reviewed his central file on November

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18, 2016. (Id. at ¶ 9.) The CDC-128 D form, dated November 18, 2016, states, “[o]n 11/18/16, at

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approximately 1000 hours I reviewed my Central File in preparation for a pending litigations case. I

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received 70 copies out of my central file from my assigned counselor.” (ECF No. 70-4, Attach. C.)

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As Plaintiff acknowledges, a litigation hold was placed on Plaintiff’s central file on February 10, 2016.

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(ECF No. 68, at p. 5.) In his motion, Plaintiff contends that many of his appeals were screened out by

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the appeals coordinator; however, screened out appeals are not maintained in Plaintiff’s central file.

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(Pacifico Decl., ¶ 10.) Rather, such appeals would have been returned to Plaintiff along with a

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screening letter. (Id. at ¶ 11.)

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Plaintiff’s general argument that he has been denied the right to obtain evidence to support his

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opposition is precisely the type of general argument which is not sufficient to obtain relief under Rule

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56(d). Moreover, because Defendant has provided Plaintiff with an additional copy of his discovery

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responses that contain all appeals identified as relevant by Plaintiff, and Plaintiff has had access to his

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central file, Plaintiff’s motion to defer ruling on Defendant’s exhaustion-related motion for summary

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judgment in order to obtain further discovery is DENIED. In the interest of justice, the Court will

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grant Plaintiff thirty (30) days from the date of service of this order to file a supplemental opposition,

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and Defendant may file a reply within fourteen (14) days after the filing of any supplemental

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opposition. The motion will be deemed submitted for review after any supplemental filings, and no

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extensions of time will be granted, absent a showing of extraordinary circumstances.

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IT IS SO ORDERED.

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Dated:

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December 14, 2016
UNITED STATES MAGISTRATE JUDGE

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