Avery v. Woodford et al

Filing 60

ORDER by Judge Ronald M. Whyte Denying 43 Motion for Subpoenas; Granting 57 Motion to Stay; Granting Request for Extension of Time. (jg, COURT STAFF) (Filed on 9/30/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA *E-FILED - 9/30/09*

KYLE WHELAN AVERY, v. Plaintiff,

M.S. CHACON, et al., Defendants.

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No. C 03-4233 RMW (PR) ORDER GRANTING DEFENDANTS' MOTION TO STAY; DENYING PLAINTIFF'S MOTION FOR SUBPOENAS; GRANTING PLAINTIFF'S REQUEST FOR EXTENSION OF TIME (Docket Nos. 43, 57)

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. On February 12, 2009, the court ordered service of plaintiff's second amended complaint on defendant Thompson, and dismissed the remaining defendants. Pending before the court is defendant's motion to stay discovery. For the reasons stated below, defendant's motion to stay is GRANTED. Plaintiff's motion for subpoenas is DENIED without prejudice to refiling. Defendants move for a stay of discovery pending the court's ruling on his motion for summary judgment based on qualified immunity. Plaintiff claims the motion should be denied because he needs to conduct discovery to prove that defendant is not entitled to qualified immunity.
Order Granting Defendant's Motion to Stay; Denying Plaintiff's Motion for Subpoenas; Granting Plaintiff's Request for Extension of Time P:\PRO-SE\SJ.Rmw\CR.03\Avery233staydisc.wpd

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"Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Accordingly, where defendants have filed a motion for summary judgment based on qualified immunity, a court should stay discovery until that threshold question is settled. Crawford-El v. Britton, 523 U.S. 574, 598 (1998) ("[i]f the defendant does plead qualified immunity, the court should resolve that threshold question before permitting discovery"). On September 15, 2009, defendant Thompson moved for summary judgment based on qualified immunity. The court has not yet ruled on his motion. Accordingly, defendant is entitled to a stay of discovery against him. Plaintiff argues that he needs discovery to oppose defendant's motion for summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment should be granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact. Here, plaintiff is restricted in his ability to survive the motion for summary judgment based on qualified immunity because he cannot conduct discovery to show the existence of a genuine issue of material fact until the question of qualified immunity is resolved. To remedy this tension between the prohibition on discovery and the standard of review applied by Rule 56, courts have loosened the rules of admissibility regarding affidavits pending the court's ruling on the question of qualified immunity. See Dimartini v. Ferrin, 889 F.2d 922, 927-28 (9th Cir. 1989) (finding summary judgment inappropriate where discovery has been stayed pending resolution of the qualified immunity motion if all the facts alleged in the affidavits, taken as true, create a dispute of material fact). Accordingly, plaintiff's argument is not well-taken, and the court GRANTS the motion to stay discovery as to defendant Thompson. Because the court grants the motion to stay discovery, plaintiff's motion for subpoenas is DENIED without prejudice to re-filing once the court addresses the issue of qualified immunity. In plaintiff's opposition, he requests that the court stay ruling on the motion for summary

Order Granting Defendant's Motion to Stay; Denying Plaintiff's Motion for Subpoenas; Granting Plaintiff's Request for Extension of Time 2 P:\PRO-SE\SJ.Rmw\CR.03\Avery233staydisc.wpd

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judgment because he needs more time to conduct discovery. The court denies plaintiff's request, but will grant him an extension of time to respond to defendant's motion for summary judgment. Good cause having been shown, the court GRANTS plaintiff an extension of time to file an opposition to defendant's motion for summary judgment. Plaintiff shall file his opposition to defendant's motion for summary judgment within 60 days from the filing date of this order. Defendant shall file a reply within 15 days thereafter. This order terminates docket numbers 43 and 57. IT IS SO ORDERED. DATED: 9/30/09 RONALD M. WHYTE United States District Judge

Order Granting Defendant's Motion to Stay; Denying Plaintiff's Motion for Subpoenas; Granting Plaintiff's Request for Extension of Time 3 P:\PRO-SE\SJ.Rmw\CR.03\Avery233staydisc.wpd