Candler v. Santa Rita County Jail Watch Commander et al

Filing 36

ORDER by Judge Claudia Wilken ORDER DENYING 12 MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE, DENYING 33 MOTION TO COMPEL, SETTING DISCOVERY AND BRIEFING SCHEDULES AND DIRECTING ALL PARTIES TO CONSENT OR DECLINE TO PROCEED BEFORE MAGISTRATE JUDGE FOR ALL FURTHER PROCEEDINGS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARK ANTHONY CANDLER,
Plaintiff,

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v.
SANTA RITA COUNTY JAIL WATCH
COMMANDER, et al.,
Defendants.

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Case No.: C 11-1992 CW (PR)
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT WITHOUT
PREJUDICE, DENYING MOTION TO
COMPEL, SETTING DISCOVERY AND
BRIEFING SCHEDULES AND
DIRECTING ALL PARTIES TO
CONSENT OR DECLINE TO PROCEED
BEFORE MAGISTRATE JUDGE FOR ALL
FURTHER PROCEEDINGS

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United States District Court
Northern District of California

(Docket nos. 12, 33)
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Plaintiff, a state prisoner incarcerated at Pelican Bay
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State Prison, filed this pro se civil rights action pursuant to
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42 U.S.C. § 1983, complaining about his conditions of confinement
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during the period of his incarceration as a pretrial detainee at
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the Santa Rita County Jail (SRCJ).

Specifically, Plaintiff

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alleges (1) that from June 17, 2008 through December 13, 2010,
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Defendants held him in disciplinary lock-up without disciplinary
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charges or a hearing, and did not provide him with cleaning
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materials for his cell or with the requisite minimum of three
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hours of exercise a week, and (2) from March 2009 through
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December 2010, he routinely went for more than seventy-two hours
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without a shower.

Plaintiff claims Defendants placed him in such

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adverse conditions of confinement not because of his conduct but,
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instead, in retaliation and at the request of the District
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Attorney.

He claims the violation of his right to due process

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and that Defendants acted with deliberate indifference.
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I.

Summary Judgment
On October 5, 2012, Defendants filed a motion for summary

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judgment.

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proceedings because he was scheduled to be transferred to another

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prison.

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granted Plaintiff an extension of time to January 4, 2013, to

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file his opposition to the motion for summary judgment.

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January 9, 2013, the Court received Plaintiff’s opposition, in

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which he wrote that he had been transferred to Pelican Bay State

Thereafter, Plaintiff moved for a stay of further

On November 20, 2012, the Court denied the stay but

On

United States District Court
Northern District of California

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Prison and had not yet received his legal property.

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to several alleged factually inaccurate statements made by

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Defendants in support of their motion for summary judgment.

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He objected

Defendants filed a reply and an objection to Plaintiff’s

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factual assertions, arguing that they are inadmissible hearsay

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and improper opinion evidence.

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and a motion to compel discovery.

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on the grounds that discovery has not yet opened in the case

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because there has been no case management conference order,

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Plaintiff has not made any formal discovery request and he has

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not attempted to meet and confer.

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sent Defendants requests for production of documents, to which

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they did not respond.

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Plaintiff then filed a sur-reply
Defendants opposed the motion

Plaintiff responded that he

In the order of service in this case, the Court wrote:

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“Discovery may be taken in this action in accordance with the

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Federal Rules of Civil Procedure.

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Rule 30(a)(2) is hereby granted to Defendants to depose Plaintiff

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and any other necessary witnesses confined in prison.”

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no. 4 at 6:9-12.

Leave of the Court pursuant to

Docket

Consequently, no case management conference

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order is required and Plaintiff’s discovery requests cannot be

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objected to on that ground.

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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

See Garrett v. San
In particular,

United States District Court
Northern District of California

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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).

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

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
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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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Here, Defendants have filed a motion for summary judgment
and have objected to Plaintiff’s evidence in opposition thereto

United States District Court
Northern District of California

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as inadmissible hearsay and improper opinion evidence.

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parties, however, have not conducted any discovery; consequently,

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Plaintiff has not been able to obtain evidence from Defendants

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that may be relevant to opposing their motion and proving his

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claims.

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allow Plaintiff to conduct discovery before opposing Defendants’

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motion for summary judgment.1

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The

Under such circumstances, the Court finds it proper to

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Plaintiff is advised that a district court may consider
only admissible evidence in ruling on a motion for summary
judgment. See Fed. R. Civ. P. 56(c); Orr v. Bank of America, 285
F.3d 764, 773 (9th Cir. 2002). Such evidence may include a sworn
affidavit or declaration that is made on personal knowledge, sets
out facts that would be admissible in evidence, and shows that
the affiant or declarant is competent to testify on the matters
stated. Fed. R. Civ. P. 56(c)(4). A verified complaint may be
used as an opposing affidavit under Rule 56, as long as it is
based on personal knowledge and sets forth specific facts
admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454,
460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified
complaint as opposing affidavit where, even though verification
not in conformity with 28 U.S.C. § 1746, plaintiff stated under
penalty of perjury that contents were true and correct, and
allegations were not based purely on his belief but on his
personal knowledge); see also Keenan v. Hall, 83 F.3d 1083, 1090
n.1 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998)
(treating allegations in prisoner’s verified amended complaint as
opposing affidavit).
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Accordingly, Defendants’ motion for summary judgment is

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DENIED without prejudice to them filing a renewed motion for

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summary judgment after the parties have conducted discovery.

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See Fed. R. Civ. P. 56(d)(1).

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DENIED without prejudice as premature.2

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Plaintiff’s motion to compel is

The parties shall comply with the discovery and briefing

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schedules set forth in the Conclusion of this Order.

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II.

Consent or Declination to Proceed Before Magistrate Judge
In order to encourage the just, speedy and inexpensive

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United States District Court
Northern District of California

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determination of 42 U.S.C. § 1983 cases filed in this district,

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the parties may waive their right to proceed before a district

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judge and consent to proceed before a magistrate judge for all

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purposes.

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Consent to Proceed Before United States Magistrate Judge and an

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Attached to this Order is a Notice of Option to

Order requiring the parties to notify the Court whether they
consent or decline to so proceeding.

The parties shall complete

the requisite consent or declination form and return it to the
Court no later than fourteen days from the date of this Order.

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CONCLUSION

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For the reasons stated above, the Court orders as follows:
1.

Defendants’ motion for summary judgment is DENIED

without prejudice.

Docket no. 12.

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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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2.

Plaintiff’s motion to compel discovery is DENIED

without prejudice.
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Docket no. 33.

No later than fourteen days from the date of this

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Order, all parties shall file their consent or declination to

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proceed before a United States Magistrate Judge.

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4.

The parties shall abide by the following discovery and

briefing schedules:
a.

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complete all discovery.

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United States District Court
Northern District of California

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b.

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c.

d.

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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 August 15, 2013, the parties shall

file all discovery-related motions.

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No later than August 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. 12 and 33.

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IT IS SO ORDERED.

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Dated: 5/13/2013

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____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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