Roby v. Stewart et al
Filing
108
ORDER by Judge Claudia Wilken DENYING 96 MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE, DENYING 107 MOTION FOR EXTENSION OF TIME AS MOOT, GRANTING LEAVE TO CONDUCT WRITTEN DEPOSITIONS AND DENYING 105 MOTION TO COMPEL WITHOUT PREJUDICE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 4/16/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KEVIN ROBY,
Case No.: C 08-1113 CW (PR)
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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT WITHOUT
PREJUDICE, DENYING MOTION FOR
EXTENSION OF TIME AS MOOT,
GRANTING LEAVE TO CONDUCT
WRITTEN DEPOSITIONS AND DENYING
MOTION TO COMPEL WITHOUT
PREJUDICE
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(Docket nos. 86, 96, 105, 107)
Plaintiff,
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v.
T. STEWART, et al.,
United States District Court
Northern District of California
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Defendants.
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Plaintiff, a state prisoner proceeding pro se, filed the
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present civil rights action pursuant to 42 U.S.C. § 1983,
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alleging the violation of his First and Eighth Amendment rights
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by prison officials at Pelican Bay State Prison (PBSP).
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On March 30, 2012, the Court granted in part and denied in
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part Defendants’ motion to dismiss the claims as time-barred and
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directed Defendants to file a motion for summary judgment.
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doing, the Court granted the parties leave to take discovery.
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Thereafter, Plaintiff filed a motion requesting that the Court
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appoint a court officer to depose Defendants by way of written
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deposition.
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In so
On December 21, 2012, Defendants filed a motion for summary
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judgment.
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motion for an extension of time to file his opposition because he
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was in the process of being transferred from PBSP to another
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prison, all of his property had been packed and removed from his
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cell, and he did not know how long it would take for his property
On January 29, 2013, the Court granted Plaintiff’s
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to be returned to him once he had been transferred.
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was directed to file his opposition by no later than April 19,
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2013.
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Plaintiff
On April 4, 2013, Plaintiff filed a notice of change of
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address to Corcoran State Prison and a motion to compel
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discovery.
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deadline to file his opposition to the motion for summary
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judgment in view of his outstanding motion to compel and because
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he has not yet been allowed access to his legal property at
United States District Court
Northern District of California
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On April 7, 2013, he filed a motion to extend the
Corcoran.
Rule 56(d) of the Federal Rules of Civil Procedure provides
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a procedure by which a party may avoid summary judgment when such
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party has not had sufficient opportunity to discover affirmative
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evidence necessary to oppose the motion.
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Francisco, 818 F. 2d 1515, 1518 ( 9th Cir. 1987).
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Rule 56(d) provides that a court may deny a summary judgment
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motion and permit the opposing party to conduct discovery where
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it appears that the opposing party, in the absence of such
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discovery, is unable to present facts essential to opposing the
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motion.
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sufficient to raise a question as to whether the party opposing
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summary judgment should be permitted additional discovery, even
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if no request under Rule 56(d) has been made.
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F.2d at 1518.
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Fed. R. Civ. P. 56(d).
See Garrett v. San
In particular,
A pending discovery motion is
See Garrett, 818
The Ninth Circuit has made clear that in cases involving pro
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se prisoners, summary judgment is not favored when discovery
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requests for relevant evidence are pending.
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Ninth Circuit has noted:
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In particular, the
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Under Rule 56(f), the court may postpone
ruling on a summary judgment motion where the
nonmoving party needs “additional discovery to
explore ‘facts essential to justify the party’s
opposition.’” Crawford-El v. Britton, 523 U.S.
574, 599 n.20 (1998) (quoting Fed. R. Civ. Pro.
56(f)). Though the conduct of discovery is
generally left to a district court’s discretion,
summary judgment is disfavored where relevant
evidence remains to be discovered, particularly in
cases involving confined pro se plaintiffs.
Klingele v. Eikenberry, 849 F.2d 409, 412 (9th
Cir. 1988); Harris v. Pate, 440 F.2d 315, 318 (7th
Cir. 1971) (Stevens, J.) (observing that the
combined disabilities of self-representation and
confinement hinder a plaintiff’s ability to gather
evidence). Thus summary judgment in the face of
requests for additional discovery is appropriate
only where such discovery would be “fruitless”
with respect to the proof of a viable claim.
Klingele, 849 F.2d at 412.
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Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (parallel
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citations omitted).
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United States District Court
Northern District of California
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Here, Plaintiff states that he is unable to oppose the
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motion for summary judgment because Defendants have refused to
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provide him with copies of an internal affairs report and
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portions of the Associate Warden’s Central file concerning the
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events at issue in this case, which occurred more than seven
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years ago.
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non-responsive answers to his requests for admissions and
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interrogatories concerning those events by asserting that they
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are unable to answer because of the lapse of time since the
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events transpired.
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compel the production of the requested documents and information,
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and also seeks the appointment of a court officer to conduct
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written depositions.
He further maintains that Defendants have provided
As noted, Plaintiff has filed a motion to
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The Court finds that the information sought by Plaintiff’s
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outstanding discovery requests is relevant to the matters at
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issue herein and appears likely to lead to discovery that would
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not be fruitless with respect to proof of his First and Eighth
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Amendment claims.
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judgment is DENIED without prejudice to Defendants filing a
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renewed motion for summary judgment once the pending discovery
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matters have been resolved.
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Plaintiff’s motion for an extension of time to oppose the motion
United States District Court
Northern District of California
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Accordingly, Defendants’ motion for summary
See Fed. R. Civ. P. 56(d)(1).
for summary judgment is DENIED as moot.
The Court further finds that the motion to compel is
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premature, because there is no evidence in the record to suggest
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that Plaintiff has addressed this matter with Defendants’ counsel
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before asking the Court to intervene, or that the parties have
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made a good faith effort to meet and confer to attempt to resolve
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any discovery dispute.1
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DENIED without prejudice.
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discovery dispute is not resolved when the parties meet and
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confer.
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Accordingly, the motion to compel is
The motion may be renewed if the
The Court GRANTS Plaintiff leave to conduct written
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depositions pursuant to Rule 31 but finds the request for
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appointment of a court officer unnecessary; therefore, that
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The district court generally is not involved in the
discovery process and only becomes involved when there is a
dispute between the parties about discovery responses, which
normally are exchanged between the parties without any copy sent
to the court. See Fed. R. Civ. P. 5(d). Before filing any
motion to compel discovery, the parties must make a good faith
effort to meet and confer to attempt to resolve any discovery
dispute, as is required by Civil Local Rule 37-1. When a party
is incarcerated, the parties may meet and confer via written
communication.
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request is DENIED.
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written form the very same questions he would have asked orally.
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As with oral depositions, parties as well as non-parties may be
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examined by way of written depositions.
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31(a)(1).
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questions orally, in the presence of a court officer.
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R. Civ. P. 31(b).
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Plaintiff uses the written deposition procedure, the Court will
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modify the procedure to allow the deponents to provide written
Under Rule 31, Plaintiff may propound in
Fed. R. Civ. P.
Typically, a deponent answers written deposition
See Fed.
In the interest of justice, however, if
United States District Court
Northern District of California
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answers to the written deposition questions.
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also resolve the issue of taking the testimony under oath, for
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the witnesses must verify the written responses (just as answers
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to written interrogatories are verified).
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This procedure will
The parties shall comply with the discovery and briefing
schedules set forth below.
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CONCLUSION
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For the reasons stated above, the Court orders as follows:
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1.
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Defendants’ motion for summary judgment is DENIED
without prejudice.
2.
Docket no. 96.
Plaintiff’s motion for an extension of time to file an
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opposition to the motion for summary judgment is DENIED as moot.
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Docket no. 107.
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3.
Plaintiff’s motion to compel discovery is DENIED
without prejudice.
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Docket no. 105.
Plaintiff’s motion for a court appointed officer to
conduct written depositions is DENIED.
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Docket no. 86.
The parties shall abide by the following discovery and
briefing schedules:
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a.
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complete all discovery.
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b.
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c.
d.
United States District Court
Northern District of California
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No later than September 30, 2013, Plaintiff shall
file his opposition to Defendants’ motion.
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No later than September 1, 2013, Defendants shall
file their motion for summary judgment.
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No later than July 15, 2013, the parties shall
file all discovery-related motions.
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No later than July 1, 2013, the parties shall
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No later than October 15, 2013, Defendants shall
file their reply to the opposition.
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No extensions of time with respect to the above
deadlines will be granted absent compelling circumstances.
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This Order terminates Docket nos. 86, 96, 105 and 107.
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IT IS SO ORDERED.
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Dated: 4/16/2013
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____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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