Underwood v. Win

Filing 37

ORDER signed by Magistrate Judge Kendall J. Newman on 08/10/17 ordering plaintiffs motions to postpone defendants summary judgment motion 35 , 36 pursuant to Federal Rule of Civil Procedure 56(d), are denied. Plaintiffs opposition to defendants summary judgment motion is due within thirty days of the date of this order. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERROL UNDERWOOD, 12 13 14 No. 2: 16-cv-0346 JAM KJN P Plaintiff, v. ORDER KHIN WIN, M.D., et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions to modify the scheduling 19 order and for an extension of time to oppose defendants’ summary judgment motion. (ECF Nos. 20 35, 36.) Defendants have not opposed these motions. 21 The March 14, 2017 scheduling order stated that all motions to compel were due by July 22 10, 2017. (ECF No. 30.) Discovery requests pursuant to Federal Rules of Civil Procedure 31, 33, 23 34 and 36 were to be served not later than sixty days prior to that date, i.e., May 11, 2017. (Id.) 24 All pretrial motions, including summary judgment motions, were to be filed no later than October 25 10, 2017. (Id.) 26 On May 3, 2017, defendants filed a summary judgment motion. (ECF No. 33.) In the 27 motion to modify the scheduling order, filed July 2, 2017, plaintiff states that he was hospitalized 28 earlier this month for a heart attack. (ECF No. 35.) Plaintiff also states that the prison was on 1 1 lockdown after he returned from the hospital and he has had no law library access. (Id.) 2 Attached to this motion is a “Daily Program Report” stating that on June 14, 2017, Level II and 3 Level III Facilities at California State Prison-Solano, where plaintiff is housed, were placed on a 4 modified program after numerous weapons and dangerous contraband items were found on Level 5 III. (Id. at 3.) 6 In the motion for extension of time to file an opposition to defendants’ summary judgment 7 motion, filed July 6, 2017, plaintiff requests that he be allowed to complete discovery before 8 filing his opposition. (ECF No. 36.) Plaintiff alleges that he is on a modified lockdown and was 9 rushed to the hospital due to a medical condition. (Id.) Plaintiff alleges that he has prepared 10 11 interrogatories and a request for production of documents to serve on defendants. (Id.) The undersigned construes plaintiff’s pending motions as requests pursuant to Federal 12 Rule of Civil Procedure 56(d) to postpone ruling on defendants’ summary judgment motion. “If a 13 nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 14 essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) 15 allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other 16 appropriate order.” Fed. R. Civ. P. 56(d). 17 Pursuant to Rule 56(d), plaintiff bears the burden of specifically identifying relevant 18 information, and demonstrating that the evidence sought actually exists and that it would prevent 19 summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) 20 (citation omitted); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir. 21 2006). Additionally, plaintiff must make some showing of diligence, that he sought the requested 22 information during the discovery period, or that there is good reason he has not been able to 23 obtain the information before now. See Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 24 372–73 (9th Cir. 1985). 25 The scheduling order provided that all discovery requests were to be served no later than 26 May 11, 2017. The pending requests indicate that plaintiff was placed on lockdown and suffered 27 a heart attack in June 2017, i.e., after May 11, 2017. Plaintiff does not explain why he did not 28 serve defendants with his discovery requests on or before May 11, 2017. While the undersigned 2 1 is sympathetic to plaintiff’s circumstances, the undersigned finds that plaintiff’s failure to conduct 2 discovery during the time set in the scheduling order demonstrates a lack of diligence. While 3 defendants have not opposed plaintiff’s pending requests, it is still plaintiff’s burden to 4 demonstrate diligence. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motions to postpone defendants’ summary judgment motion (ECF Nos. 35, 7 8 9 10 36), pursuant to Federal Rule of Civil Procedure 56(d), are denied; 2. Plaintiff’s opposition to defendants’ summary judgment motion is due within thirty days of the date of this order. Dated: August 10, 2017 11 12 Un346.ord 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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