Harrison v. Linde, et. al.

Filing 87

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/2/2014 ORDERING the Clerk to re-designate ECF No. 81 as a "Motion for Continuance Pursuant to Rule 56(d)", and that motion is DENIED; plaintiff's 82 motion for an extension of time is GRANTED; plaintiff has 30 days to file an opposition to summary judgment; and plaintiff's 84 request for the appointment of counsel is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARL F. HARRISON,

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No. 2:13-cv-1510 KJM CKD P

Plaintiff,

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v.

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K. LINDE, et al.,

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ORDER

Defendants.

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Plaintiff has requested an extension of time to oppose defendants’ motion for summary

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judgment. (ECF No. 82.) It appears from the docket that plaintiff has already filed an opposition

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(ECF No. 81); however, in that filing he seeks to stay the summary judgment motion until he

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receives certain documents in discovery. See Fed. R. Civ. P. 56(d) (formerly Rule 56(f)).1 The

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court therefore will treat ECF No. 81 as a motion for a continuance.
A party requesting a continuance pursuant to Rule 56(d)

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Fed. R. Civ. P. 56(d) provides:
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or to take discovery; or
(3) issue any other appropriate order.

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must identify by affidavit the specific facts that further discovery
would reveal, and explain why those facts would preclude summary
judgment. See Fed. R. Civ. P. 56(f); California v. Campbell, 138
F.3d 772, 779 (9th Cir.1998); see also 10B Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§2740 (3d ed.1998) ( “when the movant has met the initial burden
required for the granting of a summary judgment, the opposing
party either must establish a genuine issue for trial under Rule 56(e)
or explain why he cannot yet do so under Rule 56(f)”).

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Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Bare

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allegations or vague assertions of the need for discovery are not sufficient. See Keebler Co. v.

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Murray Bakery Products, 866 F.2d 1386, 1389 (Fed. Cir. 1989). Rather, the party moving for

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continuance must explain how the sought-after facts will suffice to defeat the pending summary

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judgment motion. Tatum, 441 3d. at 1101.
Here, defendants move for summary judgment on plaintiff’s access-to-court claims,

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arguing that (1) plaintiff suffered no injury from the loss of his legal property, which defendants

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mistakenly disposed of while plaintiff’s federal habeas appeal was pending; and (2) defendants

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are entitled to qualified immunity. (ECF No. 79.) In his Rule 56(d) motion, plaintiff lists the

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documents he seeks to oppose summary judgment, which concern an alleged attack on plaintiff

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by other inmates and defendants’ alleged retaliation. (ECF No. 81 at 6.) The court finds that

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plaintiff has not made a showing sufficient to satisfy Rule 56(d), and thus will deny plaintiff’s

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request for a continuance.
Plaintiff will be granted an additional thirty days to file an opposition to summary

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judgment.2 (See ECF No. 82.) Failure to timely file an opposition will result in a

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recommendation that this action be dismissed.
Plaintiff also has requested the appointment of counsel. The United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in §

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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In his motion for extension of time, plaintiff seeks leave to file an opposition to summary
judgment and “related motions.” (ECF No. 82.) Per the limiting order issued November 19,
2013, no “related” motions are warranted at this stage of the litigation, and any frivolous motions
filed by plaintiff will be stricken from the record. (ECF No. 63.)
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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find

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the required exceptional circumstances. Plaintiff’s request for the appointment of counsel will

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therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court shall re-designate ECF No. 81 as a “Motion for Continuance
Pursuant to Rule 56(d).” That motion is hereby denied.

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2. Plaintiff’s motion for extension of time (ECF No. 82) is granted.

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3. Plaintiff is granted thirty days from the date of this order to file an opposition to

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summary judgment. Failure to timely file an opposition will result in a

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recommendation that this action be dismissed.

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4. Plaintiff’s request for the appointment of counsel (ECF No. 84) is denied.
Dated: July 2, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/harr1510.56d

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