Furnace v. Knuckles et al

Filing 179

ORDER DENYING 175 PLAINTIFF'S RULE 56(d) MOTION; GRANTING LIMITED EXTENSION OF TIME TO FILE OPPOSITION TO SUMMARY JUDGMENT MOTION. Signed by Judge Maxine M. Chesney on February 4, 2013.(mmcsec, COURT STAFF) (Filed on 2/4/2013) (Additional attachment(s) added on 2/5/2013: # 1 Certificate of Service) (tlS, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 EDWARD TERRAN FURNACE, 11 12 Plaintiff, v. 13 SGT. K KNUCKLES, et al., 14 Defendants. _______________________________ 15 16 ) ) ) ) ) ) ) ) ) ) No. C 09-6075 MMC (PR) ORDER DENYING PLAINTIFF’S RULE 56(d) MOTION; GRANTING LIMITED EXTENSION OF TIME TO FILE OPPOSITION TO SUMMARY JUDGMENT MOTION (Docket No. 175) On December 30, 2009, plaintiff, a California prisoner incarcerated at Corcoran State 17 Prison (“CSP”) and proceeding pro se, filed the above-titled civil rights action under 42 18 U.S.C. § 1983. On April 26, 2011, defendants filed a motion to dismiss and for summary 19 judgment (hereafter, “motion for summary judgment”). Following two extensions of time 20 and referral of the action to Magistrate Judge Elizabeth D. Laporte for discovery, the Court 21 entered a scheduling order directing plaintiff to file and serve his response to the motion for 22 summary judgment no later than February 11, 2013. 23 Now before the Court is plaintiff’s “Motion for Denial or Continuance of Summary 24 Judgment under the Fed. R. Civ. P. 56(f),” which the Court construes as a request under Rule 25 56(d) of the Federal Rules of Civil Procedure1 to defer consideration of defendants’ motion, 26 in order to afford plaintiff the opportunity to propound discovery necessary to oppose the 27 motion. 28 1 Effective December 1, 2010, the provisions of former subdivision (f) were carried forward without material change as subsection (d). 1 2 3 4 Rule 56(d) reads as follows: 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 declarations or to take discovery; or (3) issue any other appropriate order. Fed. R. Civ. P. 56(d). Subdivision (d) provides a means for litigants to avoid summary 6 judgment when the non-movant needs to discover affirmative evidence necessary to oppose 7 the motion. See Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). In making a 8 Rule 56(d) motion, a party opposing summary judgment must make clear “what information 9 is sought and how it would preclude summary judgment.” Margolis v. Ryan, 140 F.3d 850, 10 United States District Court For the Northern District of California 5 853 (9th Cir. 1998). The requesting party must set forth in affidavit form the specific facts 11 such party hopes to elicit from further discovery; additionally, such party must show the 12 facts sought exist and that the sought-after facts are “essential to oppose summary 13 judgment.” Family Home and Finance Center, Inc. v. Federal Home Loan Mortgage Corp., 14 525 F.3d 822, 827 (9th Cir. 2008). 15 Here, plaintiff argues he should receive the requested continuance “because of 16 defense counsel’s suppression of relevant evidence.” (Pl. 56(d) Mot. at 3.) Such assertion is 17 not sufficient to satisfy plaintiff’s burden under Rule 56(d). In particular, plaintiff has 18 neither “identif[ied] the specific facts that further discovery would . . . reveal[ ],” see Tatum 19 v. City and County of S.F., 441 F.3d 1090, 1101 (9th Cir. 2006), nor has he shown how any 20 such sought-after facts “would have precluded summary judgment,” id. 21 Moreover, in its order of August 29, 2011, the Court directed plaintiff to complete 22 discovery within 120 days. Plaintiff has had well in excess of 120 days to conduct and 23 complete discovery. While he claims he was in trial and/or denied access to legal supplies 24 through December 2011 (see Mot. at 2), he identifies no impediment to his conducting 25 discovery in the past 13 months. Nor does he claim that he was in any manner precluded 26 from bringing any asserted “suppression of relevant evidence” before Magistrate Judge 27 Laporte. Indeed, a review of the docket shows plaintiff has filed several discovery motions, 28 all of which have been resolved by Magistrate Judge Laporte in a timely manner. 2 1 2 3 Accordingly, plaintiff’s motion for a continuance will be denied to the extent that it seeks additional time to conduct discovery. In light of plaintiff’s having filed his motion for a continuance only two weeks before 4 his opposition to the motion for summary judgment was due, however, the Court will grant 5 plaintiff a short continuance in which to file his opposition to said motion. 6 CONCLUSION 7 For the foregoing reasons: 8 1. Plaintiff’s motion to deny or defer ruling, pursuant to Rule 56(d), is hereby 9 United States District Court For the Northern District of California 10 11 DENIED. 2. No later than March 4, 2013, plaintiff shall file with the Court and serve on defendants his response to defendants’ motion for summary judgment. 12 3. No later than March 18, 2013, defendants shall file and serve a reply. 13 This order terminates Docket No. 175. 14 IT IS SO ORDERED. 15 16 17 DATED: February 4, 2013 _________________________ MAXINE M. CHESNEY United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3

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