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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERROL UNDERWOOD,

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No. 2: 16-cv-0346 JAM KJN P

Plaintiff,
v.

ORDER

KHIN WIN, M.D., et al.,

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Defendants.

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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 are plaintiff’s motions to modify the scheduling

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order and for an extension of time to oppose defendants’ summary judgment motion. (ECF Nos.

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35, 36.) Defendants have not opposed these motions.

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The March 14, 2017 scheduling order stated that all motions to compel were due by July

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10, 2017. (ECF No. 30.) Discovery requests pursuant to Federal Rules of Civil Procedure 31, 33,

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34 and 36 were to be served not later than sixty days prior to that date, i.e., May 11, 2017. (Id.)

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All pretrial motions, including summary judgment motions, were to be filed no later than October

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10, 2017. (Id.)

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On May 3, 2017, defendants filed a summary judgment motion. (ECF No. 33.) In the

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motion to modify the scheduling order, filed July 2, 2017, plaintiff states that he was hospitalized

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earlier this month for a heart attack. (ECF No. 35.) Plaintiff also states that the prison was on
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lockdown after he returned from the hospital and he has had no law library access. (Id.)

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Attached to this motion is a “Daily Program Report” stating that on June 14, 2017, Level II and

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Level III Facilities at California State Prison-Solano, where plaintiff is housed, were placed on a

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modified program after numerous weapons and dangerous contraband items were found on Level

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III. (Id. at 3.)

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In the motion for extension of time to file an opposition to defendants’ summary judgment

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motion, filed July 6, 2017, plaintiff requests that he be allowed to complete discovery before

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filing his opposition. (ECF No. 36.) Plaintiff alleges that he is on a modified lockdown and was

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rushed to the hospital due to a medical condition. (Id.) Plaintiff alleges that he has prepared

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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

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Rule of Civil Procedure 56(d) to postpone ruling on defendants’ summary judgment motion. “If a

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nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts

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essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2)

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allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other

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appropriate order.” Fed. R. Civ. P. 56(d).

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Pursuant to Rule 56(d), plaintiff bears the burden of specifically identifying relevant

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information, and demonstrating that the evidence sought actually exists and that it would prevent

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summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009)

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(citation omitted); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir.

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2006). Additionally, plaintiff must make some showing of diligence, that he sought the requested

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information during the discovery period, or that there is good reason he has not been able to

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obtain the information before now. See Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369,

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372–73 (9th Cir. 1985).

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The scheduling order provided that all discovery requests were to be served no later than

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May 11, 2017. The pending requests indicate that plaintiff was placed on lockdown and suffered

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a heart attack in June 2017, i.e., after May 11, 2017. Plaintiff does not explain why he did not

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serve defendants with his discovery requests on or before May 11, 2017. While the undersigned
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is sympathetic to plaintiff’s circumstances, the undersigned finds that plaintiff’s failure to conduct

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discovery during the time set in the scheduling order demonstrates a lack of diligence. While

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defendants have not opposed plaintiff’s pending requests, it is still plaintiff’s burden to

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demonstrate diligence.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions to postpone defendants’ summary judgment motion (ECF Nos. 35,

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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

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Un346.ord
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