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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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EDWARD TERRAN FURNACE,

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Plaintiff,
v.

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SGT. K KNUCKLES, et al.,

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Defendants.
_______________________________

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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

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Prison (“CSP”) and proceeding pro se, filed the above-titled civil rights action under 42

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U.S.C. § 1983. On April 26, 2011, defendants filed a motion to dismiss and for summary

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judgment (hereafter, “motion for summary judgment”). Following two extensions of time

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and referral of the action to Magistrate Judge Elizabeth D. Laporte for discovery, the Court

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entered a scheduling order directing plaintiff to file and serve his response to the motion for

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summary judgment no later than February 11, 2013.

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Now before the Court is plaintiff’s “Motion for Denial or Continuance of Summary

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Judgment under the Fed. R. Civ. P. 56(f),” which the Court construes as a request under Rule

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56(d) of the Federal Rules of Civil Procedure1 to defer consideration of defendants’ motion,

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in order to afford plaintiff the opportunity to propound discovery necessary to oppose the

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motion.

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Effective December 1, 2010, the provisions of former subdivision (f) were carried
forward without material change as subsection (d).

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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

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judgment when the non-movant needs to discover affirmative evidence necessary to oppose

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the motion. See Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). In making a

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Rule 56(d) motion, a party opposing summary judgment must make clear “what information

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is sought and how it would preclude summary judgment.” Margolis v. Ryan, 140 F.3d 850,

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United States District Court
For the Northern District of California

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853 (9th Cir. 1998). The requesting party must set forth in affidavit form the specific facts

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such party hopes to elicit from further discovery; additionally, such party must show the

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facts sought exist and that the sought-after facts are “essential to oppose summary

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judgment.” Family Home and Finance Center, Inc. v. Federal Home Loan Mortgage Corp.,

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525 F.3d 822, 827 (9th Cir. 2008).

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Here, plaintiff argues he should receive the requested continuance “because of

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defense counsel’s suppression of relevant evidence.” (Pl. 56(d) Mot. at 3.) Such assertion is

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not sufficient to satisfy plaintiff’s burden under Rule 56(d). In particular, plaintiff has

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neither “identif[ied] the specific facts that further discovery would . . . reveal[ ],” see Tatum

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v. City and County of S.F., 441 F.3d 1090, 1101 (9th Cir. 2006), nor has he shown how any

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such sought-after facts “would have precluded summary judgment,” id.

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Moreover, in its order of August 29, 2011, the Court directed plaintiff to complete

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discovery within 120 days. Plaintiff has had well in excess of 120 days to conduct and

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complete discovery. While he claims he was in trial and/or denied access to legal supplies

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through December 2011 (see Mot. at 2), he identifies no impediment to his conducting

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discovery in the past 13 months. Nor does he claim that he was in any manner precluded

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from bringing any asserted “suppression of relevant evidence” before Magistrate Judge

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Laporte. Indeed, a review of the docket shows plaintiff has filed several discovery motions,

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all of which have been resolved by Magistrate Judge Laporte in a timely manner.
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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

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his opposition to the motion for summary judgment was due, however, the Court will grant

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plaintiff a short continuance in which to file his opposition to said motion.

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CONCLUSION

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For the foregoing reasons:

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1. Plaintiff’s motion to deny or defer ruling, pursuant to Rule 56(d), is hereby

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United States District Court
For the Northern District of California

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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.

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3. No later than March 18, 2013, defendants shall file and serve a reply.

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This order terminates Docket No. 175.

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IT IS SO ORDERED.

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DATED: February 4, 2013
_________________________
MAXINE M. CHESNEY
United States District Judge

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