Wilson v. Cuevas et al

Filing 79

ORDER DENYING MOTION FOR STAY AND GRANTING EXTENSION OF TIME TO FILE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 69 Motion to Stay The Court hereby re-sets Defendants Motion for Summary Judgment ECF No. 62 for hearing on Friday, June 21, 2019. P laintiffs Opposition (including any supporting documents) must be filed with the Court and served on all parties by Friday, June 7, 2019. If Plaintiff does file and serve an Opposition, Defendants must file and serve their Reply to that Opposition by Friday, June 14, 2019. Signed by Judge Barry Ted Moskowitz on 4/25/2019. (All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD WILSON,
CDCR #B-93800,

ORDER DENYING MOTION FOR
STAY AND GRANTING
EXTENSION OF TIME TO FILE
OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

Plaintiff,

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Case No.: 3:16-cv-2100-BTM-DHB

vs.

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A. CUEVAS; M. MOYA; J. OLIVO;
M.A. MENDOZA,

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Defendants.

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Gerald Wilson (“Plaintiff”) is currently incarcerated at Kern Valley State Prison

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and is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C.

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§ 1983. Currently pending before this Court is Defendants’ Motion for Summary

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Judgment. (ECF No. 62.)

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On January 16, 2019, the Court issued a notice pursuant to Rand v. Rowland, 154
F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.
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3:16-cv-2100-BTM-DHB

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1988). (ECF No. 64.) In this notice, the Court informed Plaintiff that he must file an

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opposition, or a notice of non-opposition, to Defendants’ Motion by March 1, 2019. (Id.

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at 2.)
However, on February 20, 2019, Plaintiff filed a “Motion to Stay” the filing of an

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opposition on the ground that there was outstanding discovery due by Defendants. (ECF

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No. 69.) Following a hearing before all parties, Magistrate Judge Michael Berg found

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that Plaintiff was entitled to additional discovery by Defendants. (ECF No. 74).

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Defendants were ordered to “supplement their responses” to the discovery propounded by

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Plaintiff by May 9, 2019. (Id. at 3.)

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Federal Rule of Civil Procedure 56(d) provides that:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:

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(1)
(2)
(3)

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defer considering the motion or deny it;
allow time to obtain affidavits or declarations or to take discovery; or
issue any other appropriate order.

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FED.R.CIV.P. 56(d).

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A court may postpone ruling on a summary judgment motion where the non-

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moving party needs “additional discovery to explore ‘facts essential to justify the party’s

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opposition.’” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (quoting Crawford-El v.

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Britton, 523 U.S. 574, 599 n. 20 (1998) (setting forth standard of review under former

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FED.R.CIV.P. 56(f)).
Here, while the Court denies Plaintiff’s request for a “stay,” the Court will grant

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Plaintiff additional time to file an opposition to Defendants’ Motion for Summary

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Judgment.

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///

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3:16-cv-2100-BTM-DHB

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Conclusion and Order
Accordingly, the Court DENIES Plaintiff’s Motion to Stay (ECF No. 69) but

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GRANTS an extension of time pursuant to FED.R.CIV.P. 56(d) to file an opposition to

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Defendants’ Summary Judgment.

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As a result, the Court hereby re-sets Defendants’ Motion for Summary Judgment

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(ECF No. 62) for hearing on Friday, June 21, 2019. Plaintiff’s Opposition (including

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any supporting documents) must be filed with the Court and served on all parties by

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Friday, June 7, 2019. If Plaintiff does file and serve an Opposition, Defendants must

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file and serve their Reply to that Opposition by Friday, June 14, 2019.

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At the time appointed for hearing, the Court will, in its discretion, consider

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Defendants Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 as submitted on

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the papers, and will issue its written opinion soon thereafter. See S. D. CAL. CIVLR

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7.1(d)(1). Thus, unless otherwise ordered, no appearances are required and no oral

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argument will be heard.

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IT IS SO ORDERED.

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Dated: April 25, 2019

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