Castle v. Sepulveda

Filing 26

ORDER by Judge Lucy H. Koh denying 24 Motion for continuance; granting 25 Motion for Extension of Time to File Response/Reply re 24 MOTION Requesting theCourt to Put Defendant Summary Judgment Motion on Hold and Allow Plaintiff to Procee d with Discovery, 25 MOTION for Extension of Time to File Response/Reply as to 20 MOTION for Summary Judgment ; Supporting Memorandum of Points and Authorities Responses due by 4/23/2013. (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 3/26/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SY LEE CASTLE,

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Plaintiff,
vs.

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M. SEPULVEDA,
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Defendant.
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No. C 12-2193 LHK (PR)
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S REQUEST FOR
CONTINUANCE
(Docket Nos. 24, 25)

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights action under 42

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U.S.C. § 1983, against Dr. M. Sepulveda. In his complaint, Plaintiff alleges that Defendant was

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deliberately indifferent to his serious medical needs. On February 19, 2013, Defendant filed a

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motion for summary judgment. On March 4, 2013, Plaintiff filed a motion for continuance under

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Federal Rule of Civil Procedure Rule 56(d). On March 11, 2013, Plaintiff filed a motion for

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extension of time to file an opposition to Defendant’s motion for summary judgment. For the

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reasons stated below, the Court GRANTS Plaintiff’s request for an extension of time to file his

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opposition to defendant’s motion for summary judgment, but DENIES it to the extent that he

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requests staying this proceeding to seek further discovery pursuant to Rule 56(d).

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

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

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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
G:\PRO-SE\SJ.LHK\CR.12\Castle193r56.wpd

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

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

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

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

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

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

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

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

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

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Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008).
Here, Plaintiff requests an indefinite extension of time in which to conduct discovery and

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oppose Defendant’s motion for summary judgment. Plaintiff has been permitted to conduct

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discovery from the moment Defendant waived service on September 26, 2012. Plaintiff does not

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demonstrate how any “additional discovery would [] reveal[] specific facts precluding summary

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judgment,” see Tatum v. City and County of S.F., 441 F.3d 1090, 1101 (9th Cir. 2006), or how

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

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Center, Inc., 525 F.3d at 827. Nor does he specify what facts he hopes to elicit. Thus, Plaintiff

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is not entitled to a continuance for the purpose of conducting additional discovery pursuant to

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Rule 56(d).

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However, due to the fact that Plaintiff’s opposition is already overdue, the Court will

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GRANT Plaintiff a twenty-eight-day continuance in which to file his opposition to the motion

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for summary judgment. Plaintiff is directed to file an opposition to Defendant’s motion for

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summary judgment no later than twenty-eight days from the filing date of this order.

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Defendant shall file a reply fourteen days thereafter.

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IT IS SO ORDERED.
DATED: 3/26/13

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LUCY H. KOH
United States District Judge

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Order Granting in Part and Denying in Part Plaintiff’s Request for Continuance
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