Uvalles v. Jaquez et al

Filing 187

ORDER by Judge Ronald M. Whyte Denying Motion to Compel; Conditionally Granting Motion for Extension of Time; Directing Plaintiff to File Supplemental Brief. (jg, COURT STAFF) (Filed on 9/17/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAUL UVALLES,

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Plaintiff,
v.
FRANCISCO JACQUEZ, et al.,

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Defendants.

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No. C 09-5221 RMW (PR)
ORDER DENYING MOTION TO
COMPEL; CONDITIONALLY
GRANTING MOTION FOR
EXTENSION OF TIME;
DIRECTING PLAINTIFF TO FILE
SUPPLEMENTAL BRIEF
(Docket Nos. 160, 177)

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Plaintiff filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed
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a motion to compel. Defendants have filed a motion for summary judgment. Plaintiff’s timely
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opposition is more accurately entitled a motion for continuance under Federal Rule of Civil
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Procedure 56(d). As explained below, plaintiff’s motion to compel is DENIED as premature.
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Further, although plaintiff does not satisfy the requirements of Rule 56(d) at this time, the court
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provisionally GRANTS a continuance so that plaintiff has an opportunity to make the required
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showing.
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BACKGROUND
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Plaintiff alleges that various prison officials exhibited cruel and unusual punishment,
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violated his right to be free from unreasonable search and seizure, violated his right to equal
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protection, and were deliberately indifferent to his serious medical needs when they placed him
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Order Denying Motion to Compel; Conditionally Granting Motion for Extension of Time; Directing Plaintiff to File
Supplemental Brief
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into Contraband Surveillance Watch (“CSW”). Plaintiff, a classified Northern Hispanic

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suspected of being involved with the Northern Structure Prison Gang, was placed into CSW after

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prison officials believed that he possessed contraband within his body. Plaintiff alleges that he

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was humiliated when he had to defecate in front of a female officer; that he was not provided

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with basic human needs while in CSW; and that the restraints used in CSW injured his back,

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shoulder, and hands. Plaintiff also claims that the prison officials discriminated against Northern

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Hispanics because one Northern Hispanic inmate had assaulted a staff member in September

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2008, and the prison officials, in turn, retaliated against all Northern Hispanics.

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ANALYSIS
I.

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Motion to Compel
Plaintiff may file a motion to compel discovery, however, only after he satisfies the

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“meet and confer” requirements of the discovery rules. See Fed. R. Civ. P. 37(a)(2)(A)

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(providing that a motion to compel must include certification that movant has in good faith

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conferred and attempted to confer with non-disclosing party in effort to secure disclosure

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without court action); N.D. Cal. Civ. R. 37-1 (same). Because plaintiff is detained, however, he

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is not required to meet and confer with defendants in person. Rather, if his discovery requests

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are denied, and he intends to seek a motion to compel, he must send a letter to defendants to that

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effect, offering them one last opportunity to provide him with the sought-after information. On

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the record, there is no indication that plaintiff satisfied that requirement. Thus, the motion to

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compel is DENIED without prejudice.

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II.

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Rule 56(d)
Federal Rule of Civil Procedure 56(d) provides that if a party opposing summary

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judgment demonstrates a need for further discovery in order to obtain facts essential to justify

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the party’s opposition, the court may deny the motion for summary judgment or continue the

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hearing to allow for such discovery. Fed. R. Civ. P. 56(d); Margolis v. Ryan, 140 F.3d 850, 853

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(9th Cir. 1998). In making a Rule 56(d) motion, a party opposing summary judgment must make

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clear “what information is sought and how it would preclude summary judgment.” Id. at 853-54

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Order Denying Motion to Compel; Conditionally Granting Motion for Extension of Time; Directing Plaintiff to File
Supplemental Brief
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(district court correctly denied motion for continuance under Rule 56(f)1 where plaintiff did not

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provide any basis or factual support for his assertions that further discovery would lead to the

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facts and testimony he described, and his assertions appeared based on nothing more than “wild

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speculation”); see also, e.g., Nicholas v. Wallenstein, 266 F.3d 1083, 1088-89 (9th Cir. 2001)

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(district court did not abuse its discretion in denying motion for continuance under Rule 56(f)

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where plaintiffs had already conducted a large amount of informal discovery and where they did

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not make clear what information was sought and how it would preclude summary judgment).

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Rule 56(d) requires that the requesting party show (1) it has set forth in affidavit form the

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specific facts it hopes to elicit from further discovery, (2) the facts sought exist, and (3) the

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sought-after facts are essential to oppose summary judgment. Family Home and Finance Center,

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Inc. v. Federal Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008).

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“[S]ummary judgment is disfavored where relevant evidence remains to be discovered,

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particularly in cases involving confined pro se plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930

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(9th Cir. 2004). In such cases, “summary judgment in the face of requests for additional

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discovery is appropriate only where such discovery would be fruitless with respect to the proof

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of a viable claim.” Id. (internal quotation marks and citation omitted).

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Here, the court has reviewed plaintiff’s request for answers to interrogatories as well as

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his first request for production of documents. Plaintiff requests, inter alia, policies and

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procedures relating to the CSW; policies regarding use of “the tube”; and information regarding

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where Northern Hispanics were housed after the September 7, 2008 staff assault. The court has

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also reviewed exhibits attached to plaintiff’s amended complaint and defendants’ declarations in

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support of their motion for summary judgment, and has found documents and information

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responsive to the above mentioned discovery requests within the pleadings filed in this case.

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Where a plaintiff requests information relating to facts within his control, any request for
that discovery would be “fruitless” and would not warrant a motion under Rule 56(d). Jones,

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Former Federal Rule of Civil Procedure 56(f) was amended in 2010. It is now set forth
in Rule 56(d).
Order Denying Motion to Compel; Conditionally Granting Motion for Extension of Time; Directing Plaintiff to File
Supplemental Brief
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393 F.3d at 930-31. In addition, a party asking for more time to conduct discovery to oppose

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summary judgment bears the burden of demonstrating that the evidence sought actually exists.

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Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1990). Thus, plaintiff must identify specific

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facts he hopes will be demonstrated by the evidence he seeks and explain how that information is

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essential to prevent summary judgment. Tatum v. San Francisco, 441 F.3d 1090, 1100 (9th Cir.

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2006).

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Because the court is not convinced at this time that all of plaintiff’s requested discovery

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would be “fruitless,” Jones, 393 F.3d at 930, plaintiff’s motion for continuance is provisionally

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GRANTED to allow plaintiff time to submit a supplemental declaration explaining what

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information or documents he lacks from his original discovery requests, what he expects the

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requested evidence will demonstrate, and why those facts will assist in proving the elements of

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his claims. Alternatively, if, after reviewing the exhibits attached to defendants’ motion for

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summary judgment declarations, plaintiff determines that he can file his opposition without the

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discovery he originally requested, plaintiff shall file his opposition instead.

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CONCLUSION
As set forth above, plaintiff’s motion to compel is DENIED. Plaintiff’s motion for a
continuance is provisionally GRANTED, pending plaintiff’s compliance with this order.
Plaintiff shall file a supplemental declaration including the required information within

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28 days of the filing date of this order. Any response by defendants shall be filed within 14 days

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thereafter. If plaintiff determines instead, that he can file an opposition without the originally

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requested discovery, then he may file his opposition no later than 28 days of the filing date of

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this order. Defendants’s reply shall be filed within 14 days thereafter.

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If plaintiff fails to file anything within 28 days, the court will deem defendants’
motion for summary judgment submitted and ready for consideration.
IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Motion to Compel; Conditionally Granting Motion for Extension of Time; Directing Plaintiff to File
Supplemental Brief
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G:\PRO-SE\SJ.Rmw\CR.09\Uvalles221.56d.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RAUL UVALLES,

Case Number: CV09-05221 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
FRANCISCO JAQUEZ et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 17, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Raul Uvalles T-59954
Pelican Bay State Prison
Housing: C9-116
P.O. Box 7500
Crescent City, CA 95532

Dated: September 17, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk