Barraza v. Unknown

Filing 29

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/26/2019 DENYING 25 Motion to Stay Consideration of Defendant's Summary Judgment Motion; DENYING 26 Motion to File for Late Discovery; and GRANTING Plaintiff, sua sponte, an extension of time. Plaintiff to file an opposition or statement of non-opposition to 22 Motion for Summary Judgment within 30 days from the date of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYANT BARRAZA,

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No. 2:17-cv-00682 MCE CKD P

Plaintiff,

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v.

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DRAKE,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is defendant

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Drake’s motion for summary judgment as well as plaintiff’s motion to stay consideration of the

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motion in light of his request to file for late discovery. See ECF Nos. 22, 25, 26. Defendant has

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filed an opposition and plaintiff has filed a reply. See ECF Nos. 27, 28. For the reasons outlined

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below, plaintiff’s motions to stay proceedings and to file late discovery are denied. Plaintiff will

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be granted an extension of time in which to file an opposition to the motion for summary

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judgment.

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I.

Factual and Procedural History

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This case is proceeding on an Eighth Amendment failure to protect claim against

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defendant Drake as alleged in plaintiff’s first amended complaint filed on July 5, 2017. Plaintiff

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alleges that defendant Drake disregarded a “keep separate order” for plaintiff and another inmate
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resulting in plaintiff’s assault on March 19, 2015 while on an escort chain at California State

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Prison-Sacramento. ECF No. 11 at 8-9. Plaintiff suffered neck injuries as a result of this assault.

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Id. at 9.

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A discovery and scheduling order was issued in this case on June 5, 2018 after defendants

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filed their answer. ECF No. 19. The parties were given until September 21, 2018 to conduct

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discovery and to file any necessary motions to compel. Id. All pretrial motions were due by

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December 14, 2018. Id.

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Defendant filed a motion for summary judgment on December 13, 2018 asserting that
there is no evidence that defendant Drake: 1) knew about the keep separate order; 2) was

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responsible for placing plaintiff on the escort chain on March 19, 2015; or, 3) that he could have

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done anything to prevent plaintiff’s assault on that date. ECF No. 22. Defendant also contends

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that he is entitled to qualified immunity. Id. at 7-8.

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On January 7, 2019, plaintiff filed a motion to stay consideration of the pending summary

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judgment motion because he “was prevented from requesting necessary discovery in order to

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counter” the motion since defendant filed it a day before the dispositive motions deadline. ECF

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No. 25. On the same day, plaintiff filed a motion to file for late discovery pursuant to Rule 56 of

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the Federal Rules of Civil Procedure as well as Local Rule 260(b).1 ECF No. 26. Plaintiff claims

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that he was completely taken by surprise by defendant Drake’s statement in support of summary

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judgment that he does “not recall being part of any group escort in March 2015 involving inmate

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Barraza and inmate Roberson.” ECF No. 22-4 at 2 (Declaration of C. Drake). “Up to this point,

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plaintiff believed it was well settled that the defendant was present during his assault based on the

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defendant’s admissions in his answer.” ECF No. 26 at 1. As a result of this “new” development

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plaintiff requests additional time to serve a request for production of documents on defendant for:

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1) all reports written by correctional staff regarding his March 19, 2015 assault; 2) “a record of

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where Defendant Drake was positioned…; and, 3) log records of any escort conducted by

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This Rule provides that “[i]f a need for discovery is asserted as a basis for denial of the motion
[for summary judgment], the party opposing the motion shall provide a specification of the
particular facts on which discovery is to be had or the issues on which discovery is necessary.
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Defendant Drake on March 19, 2015.” ECF No. 26 at 5.

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In his opposition, defendant contends that plaintiff’s motion for late discovery is

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procedurally defective and should be denied because plaintiff failed to diligently seek discovery.

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ECF No. 27.

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II.

Legal Standards

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Pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, a party opposing a motion

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for summary judgment may request an order deferring the time to respond in order to permit that

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party to conduct additional discovery upon an adequate factual showing. See Fed. R. Civ. P.

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56(d) (requiring party making such request to show “by affidavit or declaration that, for specified

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reasons, it cannot present facts essential to justify its opposition.”). An affidavit in support of

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such a request 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). On such a showing, “the court may: (1) defer

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considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take

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discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).

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“Though the conduct of discovery is generally left to a district court’s discretion,

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summary judgment is disfavored where relevant evidence remains to be discovered, particularly

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in cases involving confined pro se plaintiffs. Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir.

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1988). Thus, summary judgment in the face of requests for additional discovery is appropriate

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only where such discovery would be “fruitless” with respect to the proof of a viable claim.”

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Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). “The burden is on the nonmoving party,

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however, to show what material facts would be discovered that would preclude summary

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judgment.” Klingele, 849 F.2d at 412; see also Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995)

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(“The burden is on the party seeking to conduct additional discovery to put forth sufficient facts

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to show that the evidence sought exists.”). Moreover, “[t]he district court does not abuse its

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discretion by denying further discovery if the movant has failed diligently to pursue discovery in

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the past.’” Conkle, at 914 (quoting California Union Ins. Co. v. American Diversified Sav. Bank,

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914 F.2d 1271, 1278 (9th Cir. 1990)).
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III.

Analysis

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Plaintiff’s basis for requesting additional time to conduct discovery is centered around his

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surprise in learning that defendant Drake did not participate in plaintiff’s escort on March 19,

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2015. However, this argument is not supported by the procedural history of this case. Plaintiff

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was aware of the problems associated with his failure to properly identify a defendant in this

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action since the court’s original screening order of June 6, 2017. See ECF No. 8 (stating that

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“[p]laintiff fails to identify any named defendant responsible for his assault on March 19, 2015.”).

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As a result of this deficiency, his original complaint was dismissed with leave to amend. Id.

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Defendant Drake was the only defendant named in plaintiff’s first amended complaint. See ECF

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No. 11. Contrary to plaintiff’s assertion, defendant Drake did not admit that he was part of

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plaintiff’s escort chain in his answer. See ECF No. 17 at 2. In fact, he denied being a member of

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the escort team responsible for taking groups of inmates to the Correctional Treatment Center for

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group treatment. Id. Therefore, there was no change or “twist” in defendant’s legal position

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between the date he filed his answer and the date he filed his motion for summary judgment. See

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ECF No. 26 at 2 (stating that “defendant’s position that he was not there at all is a twist the

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plaintiff could not anticipate.”).

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Plaintiff was afforded ample opportunity to conduct discovery in order to determine

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defendant Drake’s job duties on March 19, 2015. However, plaintiff failed to serve any discovery

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requests on defendant at any point during the course of this litigation. In an effort to explain this,

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plaintiff submitted a declaration from his wife indicating that she attempted to obtain the crime

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incident packet directly from C.D.C.R., but was denied the information because it pertained to

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disciplinary matters of another inmate. ECF No. 26 at 4. However, that does not explain why

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plaintiff failed to utilize any discovery devices to request the same or similar information from

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defendant. The court also notes that plaintiff’s motion was filed over three months after the close

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of the discovery period. On this record, the undersigned cannot find that plaintiff diligently

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sought discovery. See Conkle, at 914 (quoting California Union Ins. Co. v. American Diversified

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Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990)).

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Moreover, plaintiff has not submitted an affidavit describing the specific facts that further
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discovery would reveal or how those facts would preclude summary judgment. See Fed. R. Civ.

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P. 56(d). Plaintiff requests permission to file a request for production of documents for all

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“reports involving the March 19, 2015 incident which will shed light on which correctional

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officers were present, whether responding, or primary.” ECF No. 26 at 2. However, this does not

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sufficiently explain how these reports will defeat defendant Drake’s summary judgment motion in

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light of his declaration indicating that he searched for and could not locate any reports involving

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his use of force during a medical escort on March 19, 2015. See ECF No. 22-4 at 2. The only

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particular facts that plaintiff reasonably expects to obtain in further discovery are the names of the

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correctional officers who were responsible for placing him on the chain escort on the date of his

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assault. However, this information is not expected to create a genuine issue of material fact with

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respect to defendant Drake’s summary judgment motion. See Tatum v. City and County of San

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Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). Therefore, plaintiff has failed to establish that

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his late discovery requests should be permitted pursuant to Rule 56(d) of the Federal Rules of

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Civil Procedure.
For all of these reasons, plaintiff’s motion to file for late discovery is denied. His motion

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to stay consideration of defendant’s summary judgment motion is also denied for the same

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reasons. However, the court will grant plaintiff an extension of time in which to file an

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opposition or statement of non-opposition to defendant’s summary judgment motion in light of

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this ruling.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion to stay consideration of defendant’s summary judgment motion
(ECF No. 25) is denied.

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2. Plaintiff’s motion to file for late discovery (ECF No. 26) is also denied.

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3. Plaintiff is sua sponte granted an extension of time in which to file an opposition or

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statement of non-opposition to defendant’s summary judgment motion. Any

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opposition or statement of non-opposition shall be filed within 30 days from the date

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of this order.

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/////
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Dated: February 26, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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