Bruce v. Chaiken et al

Filing 68

ORDER signed by Magistrate Judge Kendall J. Newman on 7/27/2017 GRANTING nunc pro tunc Plaintiff's request to stay defendants' summary judgment motion, contained in Plaintiff's opposition; GRANTING 61 Motion to File an Expert Witne ss Declaration; GRANTING 62 Motion to File Supplemental Opposition; and DENYING 63 Motion to Strike. Within 28 days of the date of this order, defendants shall inform the court whether they wish to reopen discovery with respect to the Mallory declaration; if defendants do not intend to reopen discovery, defendants shall inform the court whether they wish to file a supplemental reply or stand on the pleadings submitted in response to the Mallory declaration and supplemental opposition; if defendants intend to file a supplemental reply, this briefing is due within 28 days of the date of this order. (cc: Supervising Deputy Attorney General Monica Anderson) (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT BRUCE,

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No. 2: 15-cv-0960 TLN KJN P

Plaintiff,
v.

ORDER

SHAMA CHAIKEN, et al.,

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Defendants.

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Introduction
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s request to stay defendants’ summary

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judgment motion, pursuant to Federal Rule of Civil Procedure 56(d). Also pending is plaintiff’s

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leave to file a supplemental opposition and leave to file an expert declaration. (ECF Nos. 61, 62.)

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Defendants have filed a motion to strike plaintiff’s expert declaration. (ECF No. 63.)

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For the reasons stated herein, plaintiff’s request for a stay is granted, nunc pro tunc.

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Plaintiff’s motions for leave to file the expert declaration and a supplemental opposition are

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granted. Defendants’ motion to strike is denied.

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Background

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On October 28, 2016, defendants filed their summary judgment motion. (ECF No. 37.)

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On April 3, 2017, plaintiff filed his opposition. (ECF No. 51.) Plaintiff’s opposition addressed
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the merits of defendants’ summary judgment motion. (Id.) However, plaintiff also requested that

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defendants’ motion be stayed so that he could obtain an expert:

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The basis of my motion to stay the ruling on summary judgment is
that I was unable to afford to hire a medical expert at the time the
defendants filed for summary judgment. However, I recently
settled another civil suit for $10,000 and can now afford to hire an
expert. (See Settlement Agreement for Bruce v. Adams, attached as
Exhibit Q.) I expect to [hire] an expert in Internal Medicine, and
have him/her review whether defendants’ actions met the standard
of care of constipation and fecal impaction. And have the expert
review whether plaintiff suffered from ordinary constipation or
fecal impaction. I anticipate that the expert’s opinion will support
my position that I suffered from fecal impaction and that the
symptoms of fecal impaction were obvious, and defendants’ failure
to conduct an adequate examination and diagnosis fell so far below
medical standards as to be reckless.

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(Id. at 16-17.)
On April 27, 2017, defendants filed a reply to plaintiff’s opposition, a reply to plaintiff’s

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statement of undisputed facts, an opposition to plaintiff’s request for judicial notice, an opposition

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to plaintiff’s request to strike expert testimony, and an opposition to plaintiff’s request for a stay.

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(ECF Nos. 55, 56, 57, 58, 59.)

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On June 1, 2017, plaintiff filed the declaration of his expert, Dr. Edward Mallory. (ECF

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No. 60.) On June 5, 2017, plaintiff filed a motion for leave to file Dr. Mallory’s declaration, a

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motion for leave to file a supplemental opposition and a supplemental opposition. (ECF Nos. 61,

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62.) On June 16, 2017, defendants filed a motion to strike Dr. Mallory’s declaration, an

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opposition to plaintiff’s motion for leave to file Dr. Mallory’s declaration, and an opposition to

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plaintiff’s motion for leave to file a supplemental opposition. (ECF Nos. 63, 64, 65.)

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Analysis

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Federal Rule of Civil Procedure 56(d) provides,

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If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:

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(1) defer considering the motion or deny it;

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(2) allow time to obtain affidavits or declarations or to take
discovery; or

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(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).

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“To prevail under this Rule, parties opposing a motion for summary judgment must make

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‘(a) a timely application which (b) specifically identifies (c) relevant information, (d) where there

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is some basis for believing that the information sought actually exists.’” Employers Teamsters

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Local Nos. 175 and 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir.

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2004) (quoting VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.

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1986)). “The burden is on the party seeking additional discovery to proffer sufficient facts to

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show that the evidence sought exists, and that it would prevent summary judgment.” Chance v.

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Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir. 2001).

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In his opposition, plaintiff requested that defendants’ summary judgment motion be stayed

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because he had obtained money through a settlement to hire an expert. Plaintiff included with his

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opposition documents showing that the settlement was reached in December 2016. (ECF No. 51

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at 45, 58.) In his motion for leave to file Dr. Mallory’s declaration, plaintiff states that he

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received funds from the settlement in March 20171 and hired Dr. Mallory shortly thereafter.

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(ECF No. 61 at 2.) Plaintiff states that Dr. Mallory’s review took two months due to the difficulty

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in communicating with Dr. Mallory from prison. (Id.) Dr. Mallory’s declaration is dated May

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20, 2017. (ECF No. 60 at 20.)
Defendants opposed plaintiff’s motion for a stay on grounds that plaintiff had not met his

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burden under Rule 56(d). (ECF No. 58 at 2-3.) Defendants first argued that plaintiff had not

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adequately demonstrated that a basis for believing that information supporting his claims existed.

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(Id. at 3.) However, plaintiff’s ability to provide Dr. Mallory’s declaration undermines this

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argument.

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Defendants also argued that plaintiff’s motion for a stay should be denied because plaintiff

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was not diligent. Defendants argued that plaintiff waited until long after discovery closed in June

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2016 to seek expert testimony. (Id. at 3-4.) Defendants did not address plaintiff’s argument that

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Plaintiff’s motion states that he received the funds in March 2016, but it is clear that plaintiff
meant to state March 2017.
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he was unable to afford the cost of an expert until his case settled in December 2016, and he

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received the payment from the settlement in March 2017. Based on the timing of the settlement,

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the undersigned finds that plaintiff acted diligently in finding an expert once he obtained the

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funds from the settlement.

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Plaintiff has demonstrated good cause to grant the request for a stay. Accordingly,

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plaintiff’s motion to stay defendants’ summary judgment motion until he received his expert

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declaration is granted, nunc pro tunc. Because plaintiff’s motion to stay is granted, plaintiff’s

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motion for leave to file Dr. Mallory’s declaration and for leave to file a supplemental opposition

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are granted as well.

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In the motion to strike Dr. Mallory’s declaration, defendants argue that allowing plaintiff

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to proceed with the Mallory declaration is prejudicial. (ECF No. 63 at 3.) Defendants argue that

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they will have to seek to re-open discovery to cross-examine Dr. Mallory and then file

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supplemental evidence. (Id. at 4.) Defendants also argue that Dr. Mallory’s declaration should be

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excluded because it is not based on reliable facts and data. (Id. at 4-6.) Defendants also argue

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that Dr. Mallory’s declaration does not raise a genuine dispute regarding whether they acted with

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deliberate indifference. (Id. at 6-10.)
Because plaintiff has been allowed to file Dr. Mallory’s declaration in support of his

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supplemental opposition, the undersigned will consider defendants’ arguments challenging the

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merits of Dr. Mallory’s declaration when the court considers the merits of defendants’ summary

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judgment motion. Because Dr. Mallory’s declaration was filed after defendants’ summary

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judgment motion was fully briefed, defendants are granted an opportunity to conduct discovery

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with respect to this declaration and/or to file a supplemental reply.
On July 20, 2016, defense counsel filed a pleading titled “Notice of Unavailability of

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Counsel.” (ECF No. 66.) In this pleading, counsel states that she is unavailable from July 31,

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2017 through August 12, 2017. Because defense counsel may not be able to respond to the

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instant order based on her unavailability, the undersigned herein directs the Clerk of the Court to

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serve this order on Supervising Deputy Attorney General Monica Anderson.2

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to stay defendants’ summary judgment motion, contained in his

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opposition, is granted nunc pro tunc;
2. Plaintiff’s motions to file an expert witness declaration and to file a supplemental

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opposition (ECF Nos. 61, 62) are granted;

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3. Defendants’ motion to strike (ECF No. 63) is denied;

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4. Within twenty-eight days of the date of this order, defendants shall inform the court

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whether they wish to reopen discovery with respect to the Mallory declaration; if defendants do

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not intend to reopen discovery, defendants shall inform the court whether they wish to file a

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supplemental reply or stand on the pleadings submitted in response to the Mallory declaration and

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supplemental opposition; if defendants intend to file a supplemental reply, this briefing is due

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within twenty-eight days of the date of this order;

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5. The Clerk of the Court is directed to serve this order on Supervising Deputy Attorney

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General Monica Anderson.

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Dated: July 27, 2017

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Br960.que
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Supervising Deputy Attorney General Monica Anderson is not precluded from requesting an
extension of time to respond to the instant order on defense counsel’s behalf.
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