Martinez v. Three Unknown Guards of CDCR, et al.

Filing 65

ORDER VACATING January 24, 2020 62 Order to Show Cause; ORDER GRANTING Plaintiff a Third Extension of Time to File an Opposition to Defendant's Motion for Summary Judgment 64 ; ORDER REQUIRING Defendant Rojas to RE-Serve the September 10, 2019 Motion for Summary Judgment on Plaintiff within Seven Days, signed by Magistrate Judge Barbara A. McAuliffe on 2/19/2020. (7-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTONIO MARTINEZ,

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Plaintiff,

Case No. 1:16-cv-01467-DAD-BAM (PC)
ORDER VACATING JANUARY 24, 2020
ORDER TO SHOW CAUSE

v.
(ECF No. 62)
F. ROJAS,

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ORDER GRANTING PLAINTIFF A THIRD
EXTENSION OF TIME TO FILE AN
OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

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(ECF No. 64)

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ORDER REQUIRING DEFENDANT ROJAS
TO RE-SERVE THE SEPTEMBER 10, 2019
MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF WITHIN SEVEN DAYS

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Defendant.

THIRTY (30) DAY DEADLINE
Plaintiff Antonio Martinez is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
On September 10, 2019, Defendant F. Rojas filed a motion for summary judgment for

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failure to exhaust administrative remedies. (ECF No. 52.) Plaintiff was provided with notice of

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the requirements for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934

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(9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.1988); Klingele v. Eikenberry, 849

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F.2d 409, 411–12 (9th Cir.1988). (ECF No. 52-1.)
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On October 9, 2019, the Court granted Plaintiff a thirty-day extension of time to file an

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opposition to Defendant’s summary judgment motion. (ECF No. 55.) However, Plaintiff failed

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to file an opposition within the allotted time. Therefore, on November 21, 2019, the Court issued

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an order directing Plaintiff to file an opposition, or a statement of non-opposition, to Defendant’s

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motion for summary judgment within twenty-one days from the date of service of the order.

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(ECF No. 57.)

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In response to the Court’s November 21, 2019 order, Plaintiff filed a motion for a second

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extension of time. (ECF No. 58.) On December 9, 2019, the Court granted Plaintiff a second

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thirty-day extension of time to file an opposition to Defendant’s summary judgment motion.

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(ECF No. 59.)
However, Plaintiff failed to file an opposition, or a statement of non-opposition, to

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Defendant’s motion for summary judgment within the allotted time. Therefore, on January 24,

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2020, the Court issued an order to show cause in writing why this action should not be dismissed

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for Plaintiff’s failure to comply with the Court’s October 9, 2019, November 21, 2019, and

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December 9, 2019 orders, and failure to prosecute. (ECF No. 64.) The order to show cause also

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informed Plaintiff that he could comply with the order by filing an opposition, or statement of

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non-opposition, to Defendant’s summary judgment motion. (Id. at 2.)

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On February 13, 2020, Plaintiff timely filed a document titled “Opposition to Defendant’s

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Summary Judgment.” (ECF No. 64.) In his document, Plaintiff states that he cannot possibly

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litigate the issues presented against him because he lacks a copy of the September 10, 2019

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motion for summary judgment filed by Defendant Rojas and because he does not have his entire

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medical record, including any documentation proving that he exhausted the medical 602 process

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at the highest level. (Id. at 1-2.) Therefore, the Court construes Plaintiff’s “Opposition” as a

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motion for a third extension of time to file a substantive opposition to Defendant’s motion for

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summary judgment.

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Since Plaintiff states that he does not have a copy of Defendant’s September 10, 2019

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motion for summary judgment and that he does not have all of the medical records that he

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believes are necessary to oppose the Defendant’s summary judgment motion, the Court finds that
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the interest of justice requires that the Court vacate the January 24, 2020 order to show cause and

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grant Plaintiff a third thirty (30) day extension of time. Additionally, the Court orders Defendant

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to re-serve Defendant’s September 10, 2019 motion for summary judgment on Plaintiff at

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Plaintiff’s address of record.

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Finally, to the extent that Plaintiff needs specific discovery in order to address the issues

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raised in Defendant’s exhaustion-based summary judgment motion, then Plaintiff is entitled to

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obtain exhaustion-related discovery before having to file a substantive response to Defendant’s

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summary judgment motion. Fed. R. Civ. P. 56(d); Albino v. Baca, 747 F.3d 1162, 1170-71 (9th

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Cir. 2014) (en banc). If Plaintiff needs a further extension of time of his deadline because he

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needs to obtain the portions of his medical record that he currently does not have through

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discovery in order to oppose Defendant’s summary judgment motion, Plaintiff’s request for an

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extension of time must comply with the requirements of Federal Rule of Civil Procedure 56(d).

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In order to obtain an extension of time or a continuance pursuant to Rule 56(d), Plaintiff must

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“identify by affidavit [or declaration] the specific facts that further discovery would reveal, and

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explain why those facts would preclude summary judgment.” Tatum v. City & Cnty. of San

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Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Put another way, Plaintiff must identify the

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specific, relevant evidence that he needs – for example, what document or portions of his medical

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record that he is missing – and then Plaintiff must clearly explain how that specific evidence

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would preclude summary judgment.
Additionally, Plaintiff’s affidavit or declaration must also disclose what Plaintiff has done,

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or what efforts he has made, to attempt to obtain the specific relevant evidence that he needs to

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properly oppose Defendant’s summary judgment motion. Bank of America, NT & SA v.

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PENGWIN, 175 F.3d 1109, 1118 (9th Cir. 1999) (a party seeking a continuance under Rule 56(d)

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must also show that it diligently pursued its previous discovery opportunities). For example, if

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Plaintiff wants to obtain documents from his medical records, Plaintiff needs to explain what he

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has already done to obtain those documents before he filed his request for a further extension of

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time to oppose Defendant’s summary judgment motion.

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Any further requests for extensions of time, without the supporting factual basis as
outlined in this order, will be denied and the motion decided on the merits.

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Accordingly, it is HEREBY ORDERED that:

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1.

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The order to show cause issued on January 24, 2020, (ECF No. 62), is
VACATED;

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Defendant is directed to re-serve his September 10, 2019 motion for summary

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judgment, (ECF No. 52), on Plaintiff at his address of record, and file a proof of

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re-service, within seven (7) days from the date of service of this order;

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3.

Plaintiff is granted thirty (30) days, running from the date of re-service of

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Defendant’s motion for summary judgment, to file an opposition, or statement of

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non-opposition, to Defendant’s motion for summary judgment; and

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Plaintiff is warned that failure to comply with this order will result in a

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recommendation to the District Judge that this action be dismissed for failure to

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obey court orders and failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 19, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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