Roby v. Stewart et al

Filing 108


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 KEVIN ROBY, Case No.: C 08-1113 CW (PR) 9 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 10 (Docket nos. 86, 96, 105, 107) Plaintiff, 5 6 7 v. T. STEWART, et al., United States District Court Northern District of California 8 Defendants. 11 12 Plaintiff, a state prisoner proceeding pro se, filed the 13 present civil rights action pursuant to 42 U.S.C. § 1983, 14 alleging the violation of his First and Eighth Amendment rights 15 by prison officials at Pelican Bay State Prison (PBSP). 16 On March 30, 2012, the Court granted in part and denied in 17 part Defendants’ motion to dismiss the claims as time-barred and 18 directed Defendants to file a motion for summary judgment. 19 doing, the Court granted the parties leave to take discovery. 20 Thereafter, Plaintiff filed a motion requesting that the Court 21 appoint a court officer to depose Defendants by way of written 22 deposition. 23 In so On December 21, 2012, Defendants filed a motion for summary 24 judgment. 25 motion for an extension of time to file his opposition because he 26 was in the process of being transferred from PBSP to another 27 prison, all of his property had been packed and removed from his 28 cell, and he did not know how long it would take for his property On January 29, 2013, the Court granted Plaintiff’s 1 to be returned to him once he had been transferred. 2 was directed to file his opposition by no later than April 19, 3 2013. 4 Plaintiff On April 4, 2013, Plaintiff filed a notice of change of 5 address to Corcoran State Prison and a motion to compel 6 discovery. 7 deadline to file his opposition to the motion for summary 8 judgment in view of his outstanding motion to compel and because 9 he has not yet been allowed access to his legal property at United States District Court Northern District of California 10 11 On April 7, 2013, he filed a motion to extend the Corcoran. Rule 56(d) of the Federal Rules of Civil Procedure provides 12 a procedure by which a party may avoid summary judgment when such 13 party has not had sufficient opportunity to discover affirmative 14 evidence necessary to oppose the motion. 15 Francisco, 818 F. 2d 1515, 1518 ( 9th Cir. 1987). 16 Rule 56(d) provides that a court may deny a summary judgment 17 motion and permit the opposing party to conduct discovery where 18 it appears that the opposing party, in the absence of such 19 discovery, is unable to present facts essential to opposing the 20 motion. 21 sufficient to raise a question as to whether the party opposing 22 summary judgment should be permitted additional discovery, even 23 if no request under Rule 56(d) has been made. 24 F.2d at 1518. 25 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 26 se prisoners, summary judgment is not favored when discovery 27 requests for relevant evidence are pending. 28 Ninth Circuit has noted: 2 In particular, the 1 13 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. 14 Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (parallel 15 citations omitted). 2 3 4 5 6 7 8 9 United States District Court Northern District of California 10 11 12 16 Here, Plaintiff states that he is unable to oppose the 17 motion for summary judgment because Defendants have refused to 18 provide him with copies of an internal affairs report and 19 portions of the Associate Warden’s Central file concerning the 20 events at issue in this case, which occurred more than seven 21 years ago. 22 non-responsive answers to his requests for admissions and 23 interrogatories concerning those events by asserting that they 24 are unable to answer because of the lapse of time since the 25 events transpired. 26 compel the production of the requested documents and information, 27 and also seeks the appointment of a court officer to conduct 28 written depositions. He further maintains that Defendants have provided As noted, Plaintiff has filed a motion to 3 1 The Court finds that the information sought by Plaintiff’s 2 outstanding discovery requests is relevant to the matters at 3 issue herein and appears likely to lead to discovery that would 4 not be fruitless with respect to proof of his First and Eighth 5 Amendment claims. 6 judgment is DENIED without prejudice to Defendants filing a 7 renewed motion for summary judgment once the pending discovery 8 matters have been resolved. 9 Plaintiff’s motion for an extension of time to oppose the motion United States District Court Northern District of California 10 11 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 12 premature, because there is no evidence in the record to suggest 13 that Plaintiff has addressed this matter with Defendants’ counsel 14 before asking the Court to intervene, or that the parties have 15 made a good faith effort to meet and confer to attempt to resolve 16 any discovery dispute.1 17 DENIED without prejudice. 18 discovery dispute is not resolved when the parties meet and 19 confer. 20 Accordingly, the motion to compel is The motion may be renewed if the The Court GRANTS Plaintiff leave to conduct written 21 depositions pursuant to Rule 31 but finds the request for 22 appointment of a court officer unnecessary; therefore, that 23 24 25 26 27 28 1 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. 4 1 request is DENIED. 2 written form the very same questions he would have asked orally. 3 As with oral depositions, parties as well as non-parties may be 4 examined by way of written depositions. 5 31(a)(1). 6 questions orally, in the presence of a court officer. 7 R. Civ. P. 31(b). 8 Plaintiff uses the written deposition procedure, the Court will 9 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 10 answers to the written deposition questions. 11 also resolve the issue of taking the testimony under oath, for 12 the witnesses must verify the written responses (just as answers 13 to written interrogatories are verified). 14 15 This procedure will The parties shall comply with the discovery and briefing schedules set forth below. 16 CONCLUSION 17 For the reasons stated above, the Court orders as follows: 18 1. 19 20 Defendants’ motion for summary judgment is DENIED without prejudice. 2. Docket no. 96. Plaintiff’s motion for an extension of time to file an 21 opposition to the motion for summary judgment is DENIED as moot. 22 Docket no. 107. 23 24 25 26 27 28 3. Plaintiff’s motion to compel discovery is DENIED without prejudice. 4. Docket no. 105. Plaintiff’s motion for a court appointed officer to conduct written depositions is DENIED. 5. Docket no. 86. The parties shall abide by the following discovery and briefing schedules: 5 1 a. 2 complete all discovery. 3 b. 4 c. d. United States District Court Northern District of California 11 12 No later than September 30, 2013, Plaintiff shall file his opposition to Defendants’ motion. 9 10 No later than September 1, 2013, Defendants shall file their motion for summary judgment. 7 8 No later than July 15, 2013, the parties shall file all discovery-related motions. 5 6 No later than July 1, 2013, the parties shall e. No later than October 15, 2013, Defendants shall file their reply to the opposition. 6. No extensions of time with respect to the above deadlines will be granted absent compelling circumstances. 13 This Order terminates Docket nos. 86, 96, 105 and 107. 14 IT IS SO ORDERED. 15 Dated: 4/16/2013 16 ____________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 6

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