Hernandez v. Bouwman et al

Filing 75

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/23/12 ORDERING that Plaintiffs 71 request that the court postpone consideration of defendant McDanielss motion for summary judgment is DENIED; 74 for an extension of time to file an opposition to defendant McDanielss motion for summary judgment is GRANTED; Plaintiff shall file his opposition to defendant McDanielss motion for summary judgment within 30 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALVARO HERNANDEZ,
Plaintiff,

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vs.

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No. 2:10-cv-2446 LKK CKD P

K. BOUWMAN, et al.,
Defendants.

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ORDER
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Plaintiff is a California prisoner proceeding pro se with an action for violation of

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civil rights under 42 U.S.C. § 1983. Defendant McDaniels (defendant) has filed a motion for

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summary judgment. Plaintiff has not yet filed an opposition.

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On July 25, 2012, plaintiff requested that the court postpone consideration of

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defendant’s motion for summary judgment because plaintiff has not yet received defendant’s

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responses to plaintiff’s interrogatories, and request for production of documents. Defendant

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opposes this request asserting that the requests for discovery identified above were served after

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the January 27, 2012 discovery cut off established in the court’s October 6, 2011 scheduling

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order. Defendant points to evidence indicating the request for production was served on July 15,

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2012 and the interrogatories were served on May 14, 2012.

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Because plaintiff has not obtained leave to serve late discovery requests, nor does

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he provide any justification for serving his discovery requests late, the court will deny plaintiff’s

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request to postpone consideration of defendant’s motion for summary judgment.1 Plaintiff notes

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correctly that under Federal Rule of Civil Procedure 56(d), the court has the authority to defer

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consideration of a motion for summary judgment if the non-moving party shows through an

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affidavit that he cannot present facts necessary to support his or her opposition. However, a Rule

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56(d) request should be denied unless the party opposing summary judgment specifically

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articulates how further discovery may preclude summary judgment and demonstrates diligence in

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pursuing discovery thus far. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994).2

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Plaintiff has done neither.

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In addition to his motion to postpone consideration of defendant’s motion for

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summary judgment, plaintiff has filed a motion for an extension of time to file an opposition.

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Good cause appearing, that request will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s July 25, 2012 request that the court postpone consideration of

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defendant McDaniels’s motion for summary judgment is denied.
2. Plaintiff’s August 20, 2012 request for an extension of time to file an

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opposition to defendant McDaniels’s motion for summary judgment is granted.
3. Plaintiff shall file his opposition to defendant McDaniels’s motion for

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summary judgment within thirty days. Failure to file an opposition within thirty days will result

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In his request to postpone, plaintiff also asserts he has not yet received medical records
which defendant promised to give plaintiff in a letter dated October 7, 2011. However, plaintiff
fails to identify whose medical records he seeks, and, if he seeks his own, why he cannot obtain them
himself.
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In 1994, the text in section (d) in the current version of Rule 54 was found in section (f).
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in a recommendation that this action be dismissed. Any reply to plaintiff’s opposition shall be

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filed within 14 days of service of the opposition.

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Dated: August 23, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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hern2446.pos

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