Kenney v. San Diego, City of et al

Filing 351

ORDER: Plaintiff's Ex Parte Motion (Dkt # 340 ) is granted. Plaintiff's Ex Parte Motions (Dkt #s 341 , 343 ) are denied in part and granted in part. Plaintiff's response to Defendants' motions for summary judgment must be filed by 9/18/2015. Any reply must be filed by 10/9/2015. Plaintiff's Ex Parte Motions (Dkt #s 347 , 349 ) are denied as moot. Signed by Judge William Q. Hayes on 9/3/2015. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN B. KENNEY,

CASE NO. 13cv248 WQH (JLB)

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ORDER

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Plaintiff,
vs.
THE CITY OF SAN DIEGO &
FEDERAL & PRIVATE
CONTRACTOR INTELLIGENCE
COMMUNITY AND SECURITY
POLICE - STATE INDUSTRIAL
COMPLEX CONSPIRATORS, SAN
DIEGO POLICE DEP’T, (SDPD)..., et
al.,

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Defendants.

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HAYES, Judge:
The matters before the Court are: (1) Plaintiff’s “Ex Parte Motion For Leave Of
Court To Allow Plaintiff to File Exhibits That Are Not Able To Be E-Filed” (ECF No.
340); (2) Plaintiff’s “Ex Parte Motion For Continuance Until Motion To Amend Is
Ruled Upon &/or If Unfavorable To Plaintiff, To File His Opposition Of Disputed Facts
To Defendants’ Motion For Summary Or Partial Summary Judgment Fourteen (14)
Days After That Decision” (ECF No. 341); (3) Plaintiff’s “Ex Parte Motion For
Continuance Of Motion For Summary Or Partial Summary Judgment For Discovery Of
‘Facts Unavailable’ Pursuant To Federal Rules of Civil Procedure 56; Especially FRCP
56(d); Or Alternatively Additional 14 Days From Ruling Thereof To ‘Dispute’ With So
Many ‘Facts Unavailable’ Thus Each Due An Explanation Of Perfidy & Obstruction”

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(ECF No. 343);(4) Plaintiff’s “Ex Parte Motion For Clarification On Two Pending And

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One Denied Motions of 8/25/2015 and Extension Of Time–3 Days From Ruling On

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This Motion If Unfavorable To Submit Responses to Defendants’ MSJ” (ECF No. 347);

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and (5) Plaintiff’s “Ex Parte Motion For Clarification On Two Pending And One

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Denied Motions of 8/25/2015 and Extension Of Time Time–3 Days From Ruling On

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This Motion If Unfavorable To Submit Responses to Defendants’ MSJ” (ECF No. 349).

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Background

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On January 30, 2013, Plaintiff John B. Kenney, proceeding pro se, filed a

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Complaint in this Court. (ECF No. 1). On September 20, 2013, the Court granted in

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part and denied in part the motion to dismiss the Complaint filed by Defendants City

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of San Diego (“City”), San Diego Police Department (“SDPD”), William Lansdowne,

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Jerry Sanders, Scott Thompson, Kaseyelee Lawrence, David Stum, and Jan Goldsmith

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(collectively, “City Defendants”). (ECF No. 20). In the same Order, the Court granted

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the motion to dismiss filed by the San Diego Sheriff’s Department (“Sheriff’s

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Department”). Id.

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On October 21, 2013, Plaintiff filed a First Amended Complaint. (ECF No. 21).

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On January 28, 2014, the Court granted the motions to dismiss portions of the First

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Amended Complaint filed by the City Defendants and the Sheriff’s Department. (ECF

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No. 33). In the January 28, 2014 Order, the Court listed nine causes of action against

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certain City Defendants which were not dismissed. See id. at 22-23.

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On June 30, 2014, the Court issued an Order which dismissed claims against

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certain Defendants without prejudice and stated, “[a]ny further amendment or

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supplement to the operative pleading must be done by filing a motion for leave to

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amend the First Amended Complaint, accompanied by a copy of the proposed amended

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pleading, which shall be entitled ‘Second Amended Complaint.’” (ECF No. 228 at 11).

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On October 27, 2014, Plaintiff filed an Ex Parte Motion for Leave to Amend the

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First Amended Complaint. (ECF No. 287). On January 15, 2015, the Court issued an

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Order denying Plaintiff’s Ex Parte Motion for Leave to Amend (ECF No. 287), because
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“[t]his Court has previously ruled on the matters presented in the FAC” and “Plaintiff

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has not shown good cause to support the filing of the proposed SAC in this case.” (ECF

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No. 294).

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On July 17, 2015, Plaintiff filed the Motion for Leave to Amend (ECF No. 20)

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and the “Ex Parte Motion to Substitute ‘Doe’ Defendants & Motion for Clarification

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on Whether These Substitutions May Supersede & Replace His Motion To Amend The

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First Amended Complaint” (ECF No. 321).

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On August 13, 2015, Defendants Kaseylee Lawrence, Scott Thompson, David

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Stum, City of San Diego, and San Diego Police Department each filed separate Motions

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for full or partial summary judgment. (ECF Nos. 330-33).

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On August 25, 2015, the Court issued an Order denying Plaintiff’s Motion for

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Leave to Amend (ECF No. 20) and “Ex Parte Motion to Substitute ‘Doe’ Defendants

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& Motion for Clarification on Whether These Substitutions May Supersede & Replace

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His Motion To Amend The First Amended Complaint” (ECF No. 321). (ECF No. 344).

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On August 25, 2015, Plaintiff filed the “Ex Parte Motion For Leave Of Court To

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Allow Plaintiff to File Exhibits That Are Not Able To Be E-Filed” (ECF No. 340),

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Plaintiff’s “Ex Parte Motion For Continuance Until Motion To Amend Is Ruled Upon

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&/or If Unfavorable To Plaintiff, To File His Opposition Of Disputed Facts To

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Defendants’ Motion For Summary Or Partial Summary Judgment Fourteen (14) Days

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After That Decision” (ECF No. 341), and Plaintiff’s “Ex Parte Motion For Continuance

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Of Motion For Summary or Partial Summary Judgment For Discovery Of ‘Facts

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Unavailable’ Pursuant To Federal Rules of Civil Procedure 56; Especially FRCP 56(d);

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Or Alternatively Additional 14 Days From Ruling Thereof To ‘Dispute’ With So Many

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‘Facts Unavailable’ Thus Each Due An Explanation Of Perfidy & Obstruction” (ECF

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No. 343). Defendants filed responses. (ECF Nos. 345, 346).

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On August 31, 2015 and September 1, 2015, Plaintiff filed two motions entitled

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“Ex Parte Motion For Clarification On Two Pending And One Denied Motions of
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8/25/2015 and Extension Of Time Time–3 Days From Ruling On This Motion If

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Unfavorable To Submit Responses to Defendants’ MSJ.” (ECF Nos. 347, 349).

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Defendants filed responses. (ECF Nos. 348, 350).

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I.

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Plaintiff’s Motions
A.

“Ex Parte Motion For Leave Of Court To Allow Plaintiff to File
Exhibits That Are Not Able To Be E-Filed” (ECF No. 340)

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Plaintiff requests leave to allow for the nonelectronic filing of electronic memory

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containing video & other electronic files in support of his motion because the files are

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unable to be uploaded to the Court’s electronic filing system. Defendants’ do not

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oppose Plaintiff’s motion. Plaintiff’s motion is granted.
B.

Plaintiff’s “Ex Parte Motion For Continuance Until Motion To

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Amend Is Ruled Upon &/or If Unfavorable To Plaintiff, To File His

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Opposition Of Disputed Facts To Defendants’ Motion For Summary

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Or Partial Summary Judgment Fourteen (14) Days After That

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Decision” (ECF No. 341) and Plaintiff’s “Ex Parte Motion For

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Continuance Of Motion For Summary or Partial Summary Judgment

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For Discovery Of ‘Facts Unavailable’ Pursuant To Federal Rules of

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Civil Procedure 56; Especially FRCP 56(d); Or Alternatively

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Additional 14 Days From Ruling Thereof To ‘Dispute’ With So Many

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‘Facts Unavailable’ Thus Each Due An Explanation Of Perfidy &

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Obstruction” (ECF No. 343)

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Plaintiff requests a continuance until Plaintiff’s motion to amend has been

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granted and sanctions, or “should that ruling be adverse to Plaintiff, that the time to

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oppose ... be continued until fourteen (14) days after such ruling.” (ECF Nos. 341 at

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2, 343 at 2).

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Federal Rule of Civil Procedure 56(d) authorizes the court to defer consideration

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of a motion for summary judgment and allow a party “time to obtain affidavits or

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declarations or to take discovery” where “a nonmovant shows by affidavits or
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declaration that, for specified reasons, it cannot present facts essential to justify its

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opposition.” Fed. R. Civ. P. 56(d). “The burden is on the party seeking additional

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discovery to proffer sufficient facts to show that the evidence sought exists, ..., and that

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it would prevent summary judgment.” Nidds v. Schindler Elevator Corp., 113 F.3d

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912, 921 (9th Cir.1996) (citing Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir.1995)). “The

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district court does not abuse its discretion by denying further discovery if the movant

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has failed diligently to pursue discovery in the past.” Conkle, at 914 (quoting

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California Union Ins. Co. v. American Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th

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Cir.1990).

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Plaintiff’s affidavit states in part that:

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I, John B. Kenney, Plaintiff, do declare that Defendants’ “Facts” are
“Unavailable” pursuant to Rule 56(c) & (d), because Defendants
improperly hid them until 6/2/2015, thus Plaintiff has been barred from
making true discovery requests: (1) I, John B. Kenney, Plaintiff, hereby
declare, “I hope for & need “Further Discovery” of these “Doe”
Defendants; (2) They do exist, and moreover, (3) The further “Facts” they
will reveal are “Essential” to, my, John B. Kenney’s, the Plaintiff’s,
Case”....

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(ECF Nos. 341-2 at 6, 343-2 at 3). Plaintiff’s affidavit further states that:
Plaintiff has extraordinary good cause as he served Defendants with
multiple Discovery Requests on or about January 20, 2015, & has
diligently pursued the task of completing discovery on all Defendants.
Defendants improperly held “Responses” postmarked “03/25/2015" &
illegally failed to make many responses until 6/2/2015, a mere 11 days
prior to effective Discovery cut-off.
(ECF Nos. 341-2 at 2, 343-2 at 2)

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Plaintiff’s request for continuance based on the need to conduct more discovery

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as to the newly added Doe Defendants is denied on grounds that Plaintiff’s motion to

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substitute Doe Defendants has been denied. Plaintiff’s request for a continuance based

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on the need to conduct further discovery as to the current Defendants is denied on

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grounds that Plaintiff has failed to proffer sufficient facts to show that the evidence

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sought exists, and that it would prevent summary judgment. Plaintiff’s request for an

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additional fourteen days to file an opposition to Defendants’ motions for summary

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judgment is granted.
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13cv248 WQH (JLB)

C.

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Plaintiff’s “Ex Parte Motion For Clarification On Two Pending And

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One Denied Motions of 8/25/2015 and Extension Of Time Time–3

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Days From Ruling On This Motion If Unfavorable To Submit

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Responses to Defendants’ MSJ” (ECF Nos. 347, 349)

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Plaintiff’s Ex Parte motions seek clarification of Plaintiff’s three motions ruled

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on in this order (ECF Nos. 340, 341, 343). Plaintiff’s motions for clarification and

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extension of time (ECF Nos. 347, 349) are denied as moot.

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Conclusion

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IT IS HEREBY ORDERED that Plaintiff’s “Ex Parte Motion For Leave Of Court

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To Allow Plaintiff to File Exhibits That Are Not Able To Be E-Filed” (ECF No. 340)

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is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff's “Ex Parte Motion For Continuance

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Until Motion To Amend Is Ruled Upon &/or If Unfavorable To Plaintiff, To File His

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Opposition Of Disputed Facts To Defendants' Motion For Summary Or Partial

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Summary Judgment Fourteen (14) Days After That Decision” (ECF No. 341) and

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Plaintiff’s “Ex Parte Motion For Continuance Of Motion For Summary or Partial

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Summary Judgment For Discovery Of ‘Facts Unavailable' Pursuant To Federal Rules

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of Civil Procedure 56; Especially FRCP 56(d); Or Alternatively Additional 14 Days

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From Ruling Thereof To ‘Dispute' With So Many ‘Facts Unavailable’ Thus Each Due

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An Explanation Of Perfidy & Obstruction” (ECF No. 343) are DENIED in part and

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GRANTED in part. Plaintiff’s response to Defendants’ motions for summary judgment

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must be filed by September 18, 2015. Any reply must be filed by October 9, 2015.

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///

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IT IS FURTHER ORDERED that Plaintiff’s “Ex Parte Motion For Clarification
On Two Pending And One Denied Motions of 8/25/2015 and Extension Of Time
Time–3 Days From Ruling On This Motion If Unfavorable To Submit Responses to
Defendants’ MSJ” (ECF Nos. 347, 349) are DENIED AS MOOT.
DATED: September 3, 2015
WILLIAM Q. HAYES
United States District Judge

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