Blackburn v. Monterey County Jail et al

Filing 24

ORDER by Judge Lucy H. Koh granting in part and denying in part 23 Motion to Continue (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 5/3/2011)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
HARVEY D. BLACKBURN,
11
Plaintiff,
12
13

v.

14
TERRY WHITING,
15
Defendant.
16

)
)
)
)
)
)
)
)
)
)
)
)

No. C 10-1422 LHK (PR)
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S REQUEST FOR
CONTINUANCE

17

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

18

U.S.C. § 1983 alleging that Physician’s Assistant Terry Whiting and the Monterey County Jail

19

violated his constitutional rights. On March 2, 2011, Defendant filed a motion for summary

20

judgment. On April 4, 2011, Plaintiff filed a motion for continuance under Rule 56(d).

21

Defendant filed an objection to Plaintiff’s motion. Plaintiff filed a supplemental motion, which

22

the Court construes as his reply. For the reasons stated below, the Court GRANTS Plaintiff’s

23

request for an extension of time in which to file his opposition to defendant’s motion for

24

summary judgment, but DENIES it to the extent that he requests additional time to seek further

25

discovery pursuant to Rule 56(d).

26

Federal Rule of Civil Procedure 56(d) is a device for litigants to avoid summary

27

judgment when the non-movant needs to discover affirmative evidence necessary to oppose the

28

motion. See Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). In making a Rule
Order Granting in Part and Denying in Part Plaintiff’s Request for Continuance
P:\PRO-SE\SJ.LHK\CR.10\Blackburn422rule56.wpd

1

56(d) motion, a party opposing summary judgment must make clear “what information is sought

2

and how it would preclude summary judgment.” Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.

3

1998); see, e.g., id. at 853-54 (district court correctly denied motion for continuance to engage in

4

further discovery under Rule 56(d) where plaintiff did not provide any basis or factual support

5

for his assertions that further discovery would lead to the facts and testimony he described, and

6

his assertions appeared based on nothing more than “wild speculation”). Rule 56(d) requires that

7

the requesting party show (1) it has set forth in affidavit form the specific facts it hopes to elicit

8

from further discovery, (2) the facts sought exist, and (3) the sought-after facts are essential to

9

oppose summary judgment. Family Home and Finance Center, Inc. v. Federal Home Loan

10

Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008).

11

Here, Plaintiff requests a sixty day continuance in which to file his opposition to

12

Defendant’s motion for summary judgment. He claims that he needs Defendant to provide two

13

specific pieces of information in order to demonstrate the existence of a “genuine issue of

14

material fact[].” However, he does not demonstrate how this “additional discovery would []

15

reveal[] specific facts precluding summary judgment,” see Tatum v. City and County of S.F., 441

16

F.3d 1090, 1101 (9th Cir. 2006), or how the sought-after facts are essential to oppose summary

17

judgment, Family Home and Finance Center, Inc., 525 F.3d at 827. Thus, he is not entitled to a

18

continuance for the purpose of conducting additional discover pursuant to Rule 56(d).

19

However, the Court will GRANT Plaintiff’s request for a sixty day continuance in which

20

to file his opposition to the motion for summary judgment. Plaintiff is directed to file an

21

opposition to Defendant’s motion for summary judgment no later than June 5, 2011.

22

Defendants shall file a reply fifteen days thereafter.

23
24

IT IS SO ORDERED.
DATED: 5/3/11
LUCY H. KOH
United States District Judge

25
26
27
28
Order Granting Plaintiff’s Request for Continuance
P:\PRO-SE\SJ.LHK\CR.10\Blackburn422rule56.wpd

2