Haynes v. Rosario et al

Filing 48

ORDER signed by Magistrate Judge Kendall J. Newman on 1/13/15 ORDERING that Plaintiffs motion for a Rule 56(f) continuance 46 is denied; and Plaintiff is granted 21 days from the date of this order in which to file a declaration in support of his opposition to the motion for summary judgment.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HAYNES,

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No. 2:12-cv-3018 KJN P

Plaintiff,
v.

ORDER

D. ROSARIO, et al.,

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Defendants.

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I. Introduction
Plaintiff is a state prisoner proceeding without counsel. The parties consented to proceed

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before the undersigned for all purposes. See 28 U.S.C. § 636(c). Plaintiff raises Eighth and

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Fourteenth Amendment claims. Defendants’ motion for summary judgment is pending. In

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plaintiff’s opposition to the motion, he sought leave to continue the consideration of such motion

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under Rule 56(d) of the Federal Rules of Civil Procedure. As set forth more fully below, the

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undersigned finds that plaintiff’s motion to continue consideration of the dispositive motion is

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denied. However, in light of this denial, plaintiff is granted leave to file a declaration in support

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of his opposition.

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II. Plaintiff’s Verified Complaint

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In pertinent part, plaintiff alleges that while he was incarcerated at California State Prison
in Solano, California (“CSP-SOL”), on September 12, 2011, defendant Rosario used excessive
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force on plaintiff, in violation of the Eighth Amendment, by pepper spraying and throwing

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plaintiff on the ground without provocation during and after a cell search. Plaintiff alleges that

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defendant Slupski was deliberately indifferent to plaintiff’s safety, and failed to protect plaintiff,

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by failing to ensure that the reason for defendant Rosario’s September 12, 2011 “raid” on plaintiff

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was valid, and for failing to review the visiting room videotape before allowing defendant

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Rosario to “raid” plaintiff’s cell on September 12, 2011, all in violation of the Eighth

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Amendment.

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III. Rule 56(f) Briefing

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In their motion for summary judgment, defendants contend that plaintiff’s Eighth

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Amendment claim against defendant Slupski fails because no evidence shows that he knew of

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defendant Rosario’s intentions before the use of force, or that defendant Slupski failed to

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intervene once the alleged unlawful force was used. Defendants argue that plaintiff admitted in

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his deposition that he was not contending that defendant Slupski knew beforehand that defendant

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Rosario was going to use pepper spray, and plaintiff conceded that he did not see defendant

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Slupski in the doorway until after defendant Rosario started pepper spraying, and “could see the

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sergeant barely coming behind” defendant Rosario. (ECF No. 41-1 at 8-9, quoting Pl.’s Depo. at

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44.) Defendants argue that because plaintiff contends defendant Slupski is responsible solely on a

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theory of respondeat superior, and there is no evidence showing that defendant Slupski

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participated in the use of force, knew of defendant Rosario’s alleged use of excessive force and

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failed to prevent it, and there is no policy at issue, defendant Slupski is entitled to summary

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judgment. (ECF No. 41-1 at 9.)

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Plaintiff argues that he needs additional discovery to support his claim that defendant

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Slupski knew of and ignored a substantial risk to plaintiff’s safety during defendant Rosario’s

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alleged use of excessive force. Fed. R. Civ. P. 56(d). Plaintiff claims that on June 25, 2014, he

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received a declaration from another inmate, John C. Draper, who stated that Draper proceeded to

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trial against defendant Rosario on a claim that he used “malicious physical excessive force”

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against Draper. (ECF No. 46 at 15.) Plaintiff alleges that in discovery he requested that

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defendant Rosario provide a “copy of any and all documents which contain, mention or discuss
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any complaints . . . submitted against defendant Rosario retained by the CDCR.” (ECF No. 46 at

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16.) Plaintiff states that in defendant Rosario’s February 11, 2014 discovery response, defendant

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Rosario falsely claimed that “[d]efendants are unaware of any such document and believe that no

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such documents exist.” (ECF No. 46 at 16.) Plaintiff now argues that without further discovery

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he “cannot present sufficient facts as to whether defendant Slupski, who is [defendant] Rosario’s

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supervisor, was aware or unaware of ‘any complaint against Rosario for excessive or

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unreasonable physical force before September 12, 2011.’” (ECF No. 46 at 16.) Thus, plaintiff

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seeks to defer consideration of the motion pending such discovery.

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In reply, defendants contend that the request for continuance fails for several reasons.

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First, because plaintiff requested “complaints,” which plaintiff defined under Title 15, Section

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3391 of the California Code of Regulations which defines “Citizen’s Complaints” as those filed

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by non-inmates, plaintiff fails to demonstrate that the discovery request sought disclosure of the

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Draper complaint. Second, defendants point out that plaintiff failed to explain why he delayed

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seeking the Draper complaint when plaintiff knew as early as February 2008 [sic],1 when he

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received and responded to defendants’ objection to his notice of related cases, that defendants

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contended that the discovery request did not pertain to inmate-filed complaints. (ECF No. 47 at

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4.) Third, defendants argue that plaintiff fails to demonstrate the relevance of the Draper

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complaint because no one other than Rosario is named in the Draper complaint, and on June 20,

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2014, a jury found that Rosario did not use excessive force on inmate Draper. Draper v. Rosario,

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2:10-cv-0032 KJM EFB P (E.D. Cal.).

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Finally, defendants note that Draper and plaintiff submitted declarations in which they

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state that they just learned in June 2014 that the other had a complaint against defendant Rosario.

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However, defendants provide a copy of the declaration of Grant Fine, a private investigator

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working for Draper’s counsel and filed in the Draper case, in which Fine declares that he

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interviewed plaintiff Haynes on January 16, 2014, informed Haynes of the Draper lawsuit, and

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obtained Haynes’ willingness to testify at Draper’s trial. (ECF No. 47-4 at ¶¶ 9-10.) Defendants

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Plaintiff filed the notice of related cases in this action on February 24, 2014, not in 2008. (ECF
No. 28.)
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point out that plaintiff failed to explain why he did not conduct discovery about the Draper case in

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January 2014, or defendant Slupski’s knowledge thereof, before the close of discovery herein.

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(ECF No. 47 at 5.)

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For all of these reasons, defendants argue that the information that plaintiff seeks is

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irrelevant, and that plaintiff cannot demonstrate diligence in pursuing such discovery; thus,

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defendants contend that plaintiff failed to meet the standard under Rule 56(d) of the Federal Rules

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of Civil Procedure, and ask that the motion should be denied.

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IV. Rule 56(d)

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Rule 56(d) permits a party opposing a motion for summary judgment to request an order

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deferring the time to respond to the motion and permitting that party to conduct additional

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discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d).2 However, the request

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must be based upon a showing that further discovery is needed to disclose information necessary

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to defeat the motion. Id. (requiring party making such request to show by affidavit or declaration

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that, for specified reasons, it cannot present facts essential to justify its opposition.). A Rule

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56(d) affidavit must identify “the specific facts that further discovery would reveal, and explain

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why those facts would preclude summary judgment.” Tatum v. City and County of San

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Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). A Rule 56(d) affidavit must also identify “some

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basis for believing that the information sought actually exists.” Blough v. Holland Realty, Inc.,

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574 F.3d 1084, 1091 n.5 (9th Cir. 2009). Additionally, plaintiff must make some showing of

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diligence, that he sought the requested information during the discovery period, or that there is

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good reason he has not been able to obtain the information before now. See Landmark Dev.

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Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985) (plaintiffs had reasonable access to

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information at issue during discovery, and the failure to take further depositions resulted largely

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from plaintiffs’ own delay.)

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Where a party opposing summary judgment shows that he cannot present facts essential to the
opposition, Rule 56(d) allows the court to: (1) defer consideration of the motion, (2) deny the
motion, (3) allow time for further discovery, or (4) issue another appropriate order. Fed. R. Civ.
P. 56(d).
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V. Discussion
Here, plaintiff alleges that defendant Slupski failed to protect plaintiff from defendant

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Rosario’s use of excessive force on September 21, 2011. Thus, plaintiff must adduce evidence

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demonstrating that defendant Slupski knew that plaintiff faced a substantial risk of serious harm

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yet disregarded that risk by failing to take reasonable measures to stop it. Farmer v. Brennan, 511

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U.S. 825, 847 (1994). Under this standard, plaintiff must demonstrate that defendant Slupski had

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a “sufficiently culpable state of mind,” one of deliberate indifference to the inmate’s health or

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safety. Id. at 834.

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Plaintiff concedes that he “cannot present sufficient facts as to whether defendant Slupski,

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who is [defendant] Rosario’s supervisor, was aware or unaware of ‘any complaint against Rosario

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for excessive or unreasonable physical force before September 12, 2011.’” (ECF No. 46 at 16.)

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In any event, in light of the not guilty verdict rendered in Draper, further inquiry into Slupski’s

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knowledge about Draper would not be relevant because defendant Rosario was found not guilty

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of using excessive force in Draper. Moreover, plaintiff has not shown diligence in seeking such

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discovery, inasmuch as the record reflects he was aware of Draper when plaintiff filed his notice

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of related cases on February 24, 2014, and the declaration of the private investigator demonstrates

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plaintiff was specifically informed about the Draper case on January 16, 2014. Plaintiff did not

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sign the instant request until August 23, 2014, long after discovery closed on March 31, 2014.

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The undersigned finds that plaintiff has not demonstrated how additional discovery related

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to Draper would assist plaintiff in defeating the motion for summary judgment. Accordingly,

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plaintiff’s motion for continuance is denied.

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VI. Briefing on Motion for Summary Judgment

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Plaintiff filed an opposition to the motion as well as a response to defendants’ statement of

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undisputed facts, declarations, and provided evidence in support of his opposition. (ECF Nos. 46,

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46-1.) However, plaintiff’s declaration only addressed the request for continuance, not the facts

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supporting plaintiff’s position on the merits of his claims. As set forth in the notice provided by

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defendants, plaintiff “must set out specific facts in declarations, depositions, answers to

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interrogatories, or authenticated documents, . . . that contradict the facts shown in the defendant’s
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declarations and documents and show that there is a genuine issue of material fact for trial.”

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(ECF No. 42 at 2, citing Fed. R. Civ. P. 56(c), Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir.

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1998).) Thus, in an abundance of caution, plaintiff is granted a brief extension of time in which

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to file a declaration in support of his opposition to the motion for summary judgment, if plaintiff

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so desires. Plaintiff was previously granted an extension of time to file his opposition to the

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pending motion, and the court is not inclined to entertain additional requests for extensions of

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time for plaintiff to file his declaration. No additional filing is allowed in connection with the

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pending motion for summary judgment.

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VII. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for a Rule 56(f) continuance (ECF No. 46) is denied; and

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2. Plaintiff is granted twenty-one days from the date of this order in which to file a

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declaration in support of his opposition to the motion for summary judgment.

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Dated: January 13, 2015

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