Gordon v. Sequeira et al
Filing
134
ORDER GRANTING PLAINTIFF'S MOTION TO DEFER CONSIDERATION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 114 - Signed by JUDGE DERRICK K. WATSON on 2/27/2020. For the reasons stated, Plaintif's Motion to D efer Consideration of Defendants' Motion for Summary Judgment, Dkt. No. 114, is GRANTED, and Defendants' Motion for Summary Judgment, Dkt. No. 62, is DEFERRED. With respect to Defendants' Motion for Summary Judgment, the part ies shall each file: (1) a supplemental brief (not to exceed 10 pages), and (2) an updated concise statement of facts, focused on the additional facts exchanged in discovery since the filing of the parties' previous summary judgment briefs. Plaintiff's supplemental submissions are due by April 13, 2020. Defendants' supplemental submissions are due by April 23, 2020. No further hearing is necessary, subject to further order of the Court. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
SCOTT LEE GORDON,
Plaintiff,
vs.
PAUL NIESEN, et al.,
Case No. 17-cv-00541-DKW-KJM
ORDER GRANTING
PLAINTIFF’S MOTION TO
DEFER CONSIDERATION OF
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Defendants.
Inmate Scott Gordon brings this lawsuit under the Eighth Amendment and 42
U.S.C. Section 1983, alleging that Defendants (a prison social worker, a corrections
supervisor, and a doctor) failed to separate him from a group of inmates who
violently assaulted him for the second time. It has been nearly a year since
Defendants moved for summary judgment, Dkt. No. 62, contending that they
submitted Gordon’s request for separation but did not have the authority to approve
the request and did not have any information as to whether Gordon was at risk of
serious harm. Dkt. No. 63, ¶¶ 19–21, 27. After Gordon obtained court-appointed
counsel, Gordon concurrently filed his opposition brief and a motion under
Fed.R.Civ.P. 56(d), Dkt. No. 114, urging the Court to defer its summary judgment
ruling until he could obtain requested discovery relevant to disputed material facts.
In light of the Magistrate Judge's recent order compelling Defendants to
produce some of the information Gordon has requested, Dkt. No. 130, along with
the potential for Gordon to obtain other information that he is pursuing, and because
this discovery is likely to elicit specific facts relevant to the pending summary
judgment motion, Gordon’s motion to defer summary judgment is GRANTED.
FACTUAL & PROCEDURAL BACKGROUND
Viewing the record evidence in the light most favorable to Gordon as the
nonmoving party, Young v. UPS, 575 U.S. 206, 216 (2015), the relevant facts are as
follows.
A.
The First Assault – June 6, 2016
On the evening of June 6, 2016, Gordon was walking back to his cell at the
Halawa Correctional Facility (HCF) when he was allegedly pulled into a cell and
beaten by fellow inmates Shalom Tuimalealiifono (Shalom) and John Talo (Talo).
Dkt. No. 113-1, ¶¶ 4–7. Gordon notified the guard on duty that he needed help but
refused to tell the guard what happened for fear of retaliation. Id. at ¶¶ 8–9, 11.
Gordon was transported to the emergency room at an off-site hospital where he
remained under the medical care of Defendant Dr. Thomas Craig from June 7
through June 14, 2016. Id. at ¶¶ 10, 13–14. On June 14, 2016, Gordon underwent
surgery to repair multiple fractures in his jaw, which required inserting metal plates
and screws. Id. at ¶¶ 12, 15. The next day, Gordon returned to the medical unit at
HCF. Id. at ¶ 15.
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At the time of the incident, Defendant Paul Niesen was employed by the
Hawaii Department of Public Safety (DPS) as a social worker at HCF. Dkt. No. 631, ¶¶ 1, 4. DPS also employed Defendant Keone Morreira, who was a corrections
supervisor at HCF directing and overseeing Niesen. Dkt. No. 63-2, ¶¶ 1, 4; Dkt. No.
119-16 at 5; Dkt. No. 63-1, ¶ 6. Morreira’s supervisor was HCF Residency Section
Administrator Dovie Borges. Dkt. No. 63-2, ¶ 12.
B.
The Separatee Request
On Friday, June 17, 2019, HCF Module 3 Unit Manager Lauri Lee-Zidek
initiated a Separatee Request on Gordon’s behalf. Lee-Zidek signed the request
form, noted Shalom as the inmate Gordon was to be separated from, and indicated
the reason for the request. Dkt. No. 63-2, ¶¶ 6–7; Dkt. No. 113-1, ¶¶ 19–21. That
same day, the Separatee Request was routed to Defendant Morreira. Dkt. No. 63-2,
¶ 6; Dkt. No. 113, ¶ 10.
On June 19, 2016, while Gordon was recovering in the HCF medical unit, he
filed an “Informal Resolution” of the June 6 assault, Dkt. No. 113-1, ¶ 18, requesting
that he be “kept safe and out of harms [sic] way during the healing process” and “not
be put back in a hostile situation when [he] healed.” Dkt. No. 119-5 at 2. Gordon
did not identify his attackers or refer to specific inmates.1
1
On the Informal Resolution form, Morreira noted later on June 27, 2016, that a formal separatee
request had been filled out for two inmates. Dkt. No. 119-5 at 2.
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Morreira believes he received Gordon’s Separatee Request on Monday,
June 20, 2016. Dkt. No. 119-16 at 7. That same morning, Morreira asked Niesen to
meet with Gordon regarding the Separatee Request. Id.; Dkt. No. 63-2, ¶ 8.
According to Gordon, Niesen arrived at the medical unit that morning with “a
notebook” and a partially filled out Separatee Request, which included Gordon’s
name, Lee-Zidek’s name, and Shalom’s name, and the form was dated June 17,
2016. See Dkt. No. 113-1, ¶¶ 19–22; Dkt. No. 119-6 (Separatee Request).2 Niesen
explained to Gordon that for him to be kept safe and separate from the inmates
responsible for attacking him, then Gordon needed to report what happened and sign
the Separatee Request form. Dkt. No. 113-1, ¶ 19. Gordon agreed and told Niesen
the details of the June 6, 2016 attack, including that Talo was the other inmate
involved. Id. at ¶ 23. At Gordon’s request, Niesen added Talo’s name to the
Separatee Request form. Id. at ¶ 24. Gordon then wrote the following on the form
as his reason for the request: “These two gentlemen [Shalom and Talo] were
involved in the incident that put me in the medical unit and I need to be separated
from them and other USO’s.” Dkt. No. 119-6 at 2; Dkt. No. 113-1, ¶ 25. “USO’s”
2
Gordon avers that he “did not meet with anyone regarding the separate status before [Niesen]
showed up . . . on June 20, 2016”; he “had never spoken to Ms. Lee-Zideck about the attack that
occurred on June 6, 2016”; and he “had kept quiet about the identities of [his] attackers.” Dkt.
No. 113-1, ¶¶ 19–21. When Gordon asked Niesen “how he got Shalom’s name and who had put
his name on [the Separatee Request] form,” Niesen allegedly responded that he had his
“sources.” Id. at ¶ 21.
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referred to Talo and Shalom’s prison gang. Dkt. No. 113-1, ¶ 25. Gordon then
signed and dated the form, as Niesen directed. Id.3
After meeting with Gordon, Niesen completed an Incident Report, Dkt. No.
63-7, which included the information Gordon provided that morning in the medical
unit. Dkt. No. 63-1, ¶ 10. In the report, Niesen noted that “Gordon expressed
repeated concerns that providing this information would make him a target for
retaliation by IM [Shalom], IM Talo, and other members of the STG group USO
Family, which IM Gordon believes that the other inmates listed in his report are
affiliated with.”
Dkt. No. 63-7.
Niesen then personally delivered Gordon’s
Separatee Request to Morreira on June 20, 2016, and that was the last time Niesen
saw the form. Dkt. No. 63-1, ¶ 12. Niesen also delivered his report to Morreira.
See Dkt. No. 63-7; Dkt. No. 119-16 at 7.
After Niesen gave “[Morreira] the filled-out [Separatee Request] form [for
Gordon] and his report,” Morreira “added the incarceration status and identification
number information for [Shalom] and . . . Talo, and noted that they were alleged to
have assaulted [Gordon].” Dkt. No. 119-16 at 7. Morreira also wrote “medium”
and “SOS/USO” next to Talo’s name and inmate number. Dkt. No. 113-12 at 10–
3
The parties dispute whether Niesen promised that the Separatee Request would be granted.
Gordon maintains that he “trusted in [Niesen]’s representations that a separate request would be
granted and [he] would be kept separate and away from Talo and Shalom, as well as their gang
members.” Dkt. No. 113, ¶ 26. Niesen contends, however, that he “did not promise that [he]
could ensure [Gordon]’s safety”; he “did not have the authority to ensure [Gordon]’s safety, or
the authority to make any promises about [Gordon]’s safety.” Dkt. No. 63-1, ¶ 9.
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11. Next to Shalom’s name and inmate number, Morreira wrote “medium” and
“SOS crips.” Id.; Dkt. No. 125-4 at 5–6. Based on Niesen’s Incident Report,
Morreira signed and dated Gordon’s Separatee Request and wrote “Recommend
Separatee” on the first page. Dkt. No. 119-6; Dkt. No. 119-16 at 10. Morreira states
that he could only recommend separation because he did “not have the authority to
approve or deny Separatee Requests from inmates”; only HCF Warden Francis
Sequiera had that authority. Dkt. No. 63-2, ¶¶ 12–13.
At about 12:30 PM on Monday, June 20, 2016, Morreira placed Gordon’s
Separatee Request and the Incident Report in the office of Dovie Borges, Morreira’s
supervisor. Dkt. No. 125-4 at 6–7; see Dkt. No. 62-3, ¶¶ 12–13. Warden Sequiera
approved Gordon’s Separatee Request by signing at the bottom of the second page.
Dkt. No. 63-3, ¶ 10; Dkt. No. 119-6; Dkt. No. 113-12 at 12. The parties dispute
when this approval was issued.4
4
DPS represents that it is Warden Sequiera’s signature at the bottom of page two of Gordon’s
Separatee Request, Dkt. No. 113-12 at 12, but the date next to Sequiera’s signature is illegible.
Defendants’ only evidence regarding the approval date is the testimony of HCF Program Control
Administrator Gary Kaplan. Dkt. No. 63-3, ¶ 10; cf. Dkt. No. 63, ¶ 24. Gordon contends
Kaplan’s testimony is inadmissible and based on hearsay. Dkt. No. 113, ¶ 24. Gordon is on
solid ground. Although Kaplan states that he has “personal knowledge,” his declaration is
devoid of “evidence . . . sufficient to support a finding that [he] has personal knowledge of the
matter.” Fed.R.Evid. 202 (emphasis added). Indeed, the date on the Separatee Request is
illegible and Kaplan does not allege that he witnessed Sequiera approve the request on June 20,
2016. To the extent Kaplan is simply relaying what is perhaps stated in other documents in his
possession, his testimony is based on hearsay. Fed.R.Evid. 505.
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In Gordon’s final approved Separatee Request, under the heading “Reason
For Request,” a mark or “1” was placed next to the option for “Threat to . . . Life or
Limb.” Dkt. No. 119-6. According to DPS, it is “unknown” who made the mark.
Dkt. No. 113-12 at 11.
C.
The Second Assault – June 20, 2016
On the evening of June 20, 2016, Gordon was discharged from the HCF
medical unit. Dkt. No. 113-1, ¶ 27. Before Gordon was admitted to the medical
unit, he was housed in Module 3:B:2. Dkt. No. 113-1, ¶ 4; see also Dkt. No. 113-7.
Upon his release from the medical unit, Gordon was immediately transferred to
Module 1, which allegedly housed members of Shalom’s gang. Dkt. No. 113-1, ¶
27. Shortly after Gordon made it to Module 1, he was confronted by “a member of
Shalom’s gang and several other gang members.” Dkt. No. 113-1, ¶ 28. Gordon
was directed upstairs and pulled into one of the cells where he was violently attacked
by Kevin Govea and another unidentified inmate. Id. Gordon sustained multiple
closed-fist blows to his head and body, and the inmates threatened Gordon with
further harm if he told anyone about the source of his injuries. See id.
The next day, Gordon was taken to the medical unit for his prescribed
narcotics. Dkt. No. 113-1, ¶ 29. When the nurse asked Gordon about the cut above
his eye, Gordon lied and said that he had fainted and fallen while using the toilet.
See id. at ¶ 30; Dkt. No. 113-13. After receiving stitches at an off-site hospital, later
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that night Gordon requested to be placed in protective custody. Dkt. No. 113-1, ¶¶
31–33; Dkt. No. 119-8 (Gordon’s statement); Dkt. No. 119-9 (completed
administrative segregation order). As a result, Gordon was placed in a segregated
housing unit pending a determination on his protective custody request. Dkt. No.
113-1, ¶ 36. When Gordon was denied protective custody status because his
“application was too vague,” Dkt. No. 119-17, Gordon was notified on July 7, 2016
that he would be moved back into the general prison population. Dkt. No. 113-1, ¶¶
38–40. To avoid this result, Gordon refused to accept the transfer and was placed in
solitary confinement where he remained until July 22, 2016. Id. at ¶¶ 40–41.
In November 2016, Gordon underwent a second surgery to repair his jaw. Id.
at ¶ 44. Gordon was subsequently transferred to Saguaro Correctional Center in
Arizona where he is currently housed. Id. at ¶ 1.
D.
Procedural History
Gordon filed this action under 42 U.S.C. Section 1983 on October 30, 2017.
Dkt. No. 1. In Gordon’s second amended complaint (SAC), Dkt. No. 34, he names
Morreira, Niesen, and Dr. Craig as Defendants, and asserts failure-to-protect claims
under the Eighth Amendment, as well as negligence claims, arising from the second
inmate attack on June 20, 2016. See id. at ¶¶ 2, 42, 52, 59.
Nearly a year ago, on March 5, 2019, Defendants moved for summary
judgment on Gordon’s Eighth Amendment claim, Dkt. No. 62, arguing that they did
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not know there was a substantial risk of harm to Gordon, did not have the authority
to approve or deny Gordon’s Separatee Request, and did not have authority over or
involvement in Gordon’s housing placement after he was released from the medical
unit on June 20, 2016. See Dkt. No. 62-1 at 1–2, 11–12. After the Court appointed
counsel for Gordon, Dkt. Nos. 68, 86, 101, the briefing schedule on Defendants’
summary judgment motion was continued multiple times, Dkt. Nos. 73, 90, 97, 105.
On January 15, 2020, Gordon filed his opposition, Dkt. No. 112, and a concurrent
Rule 56(d) motion to defer summary judgment until he has received the information
requested from Defendants in discovery. Dkt. No. 114. The Court heard oral
argument on Defendants’ motion and Gordon’s motion, and these matters are now
ripe for disposition. Dkt. No. 128.
DISCUSSION
In Gordon’s Rule 56(d) motion, he requests that any summary judgment
determination be delayed until after he has received the relevant discovery materials
he has requested from Defendants. He argues there are several factual disputes,
which cannot properly be addressed because Defendants have refused to produce
three categories of relevant documents and information: (1) the DPS “OffenderTrak”
computer database; (2) Gordon’s HCF medical records; and (3) descriptions of
Defendants’ job duties and the procedures that Defendants are required to follow,
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thereby making it impossible for Gordon to schedule and effectively conduct
depositions of Niesen and Morreira. Dkt. No. 114 at 2–3, 9; Dkt. No. 115, ¶ 8.5
Rule 56(d) grants a district court the “discretion to postpone ruling on a
defendant’s summary judgment motion if the plaintiff needs additional discovery to
explore ‘facts essential to justify the party’s opposition.’” Crawford-El v. Britton,
523 U.S. 574, 599 n.20 (1998) (citation omitted); Fed.R.Civ.P.56(d).6 Rule 56(d)
provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed.R.Civ.P. 56(d).
To succeed in delaying summary judgment for further
discovery, “[t]he requesting party must show [that]: (1) it has set forth in affidavit
form the specific facts it hopes to elicit from further discovery; (2) the facts sought
exist; and (3) the sought-after facts are essential to oppose summary judgment.”
5
On January 28, 2019, Gordon evidently “resigned to the fact that there may need to be two
rounds of depositions,” Dkt. No. 114 at 11, because Gordon’s counsel deposed Morreira, Dkt.
No. 127-1, the day before Gordon filed his reply in support of his Rule 56(d) motion, despite that
Gordon was still awaiting documents relevant to Morreira’s deposition. See Dkt. No. 125-1, ¶¶
9–15.
6
As part of the 2010 Amendments to the Federal Rules of Civil Procedure, former Rule 56(f)
became Rule 56(d) “without substantial change” to the text.
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Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (emphasis in original)
(quoting Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d
822, 827 (9th Cir. 2008)), cert. denied, 139 S. Ct. 1222 (2019).7 But even where
such a showing is made, relief under Rule 56(d) is unwarranted if the requesting
party has failed “to conduct discovery diligently” before the opposing party moved
for summary judgment. See, e.g., Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005
(9th Cir. 2002); Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir. 1998) (moving party
failed to make “a diligent pursuit of prior discovery opportunities”). Here, Gordon
has satisfied the demands of Rule 56(d).
First, Gordon has identified “specific facts” he expects to elicit from further
discovery and attached an affidavit in support. Dkt. No. 114 at 3, 9; Dkt. No. 115.
In particular, Gordon has sought and is still pursuing discovery related to the
following: DPS’s OffenderTrak computer database, Gordon’s medical records,
Defendants’ job duties and the procedures they must follow, and an opportunity to
depose Defendants. According to Gordon, the OffenderTrak database will reveal
information about the inmates at HCF who attacked Gordon prior to June 20, 2016,
including their gang affiliations, previous altercations, and their propensity for
7
Of course, a party seeking relief under Rule 56(d) must make a “timely” request, see Blough v.
Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009), meaning the “motion must be
brought before the summary judgment hearing.” United States v. Kitsap Physicians Serv., 314
F.3d 995, 1000 (9th Cir. 2002). Because Gordon filed his Rule 56(d) motion well before the
summary judgment hearing, his motion was timely.
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violence. Dkt. No. 114 at 9–10. Gordon’s HCF medical records, particularly for the
period June 6 through June 20, 2016, Dkt. No. 113-2, ¶ 24, will provide descriptions
of Gordon’s injuries and perhaps their cause. Dkt. No. 114 at 9–10. The duties and
procedures at HCF for Defendants’ jobs allegedly will indicate whether Defendants
had the authority to approve Gordon’s Separatee Request or immediately segregate
an inmate if exigent circumstances exist, and describe the process DPS employees
were to follow upon the submission of a Separatee Request. See Dkt. No. 114 at 9–
10; Dkt. No. 125 at 8; Dkt. No. 125-1, ¶ 14. Lastly, deposing Morreira and Niesen
will likely shed light on what they knew about the risk to Gordon prior to the second
attack on June 20, 2016, i.e., the other inmates’ propensity for violence, and the
procedures each Defendant was obligated to follow with respect to a Separatee
Request. Dkt. No. 114 at 10–11; Dkt. No. 125-1, ¶¶ 11–15. Rule 56(d) does not
require a litigant to “predict with accuracy precisely what further discovery will
reveal . . .” Stevens, 899 F.3d at 678 (emphasis in original). The facts Gordon
identifies, however, are more than “the object of mere speculation” or “vague
assertions” of “needed, but unspecified, facts.” Ohno v. Yasuma, 723 F.3d 984, 1013
n.29 (9th Cir. 2013) (citations and quotation marks omitted). As such, Gordon has
identified with sufficient particularity the facts he hopes to discover from further
discovery.
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Second, Gordon has provided a sufficient “basis or factual support” tending
to show that the above facts exist. See Stevens, 899 F.3d at 679 (quoting Margolis
v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998). Indeed, Defendant Morreira accessed
and relied on the “OffenderTrak” database in responding to Gordon’s
interrogatories. See, e.g., Dkt. No. 115, ¶ 6; Dkt. No. 119-16 at 4–5; Dkt. No. 1213 at 5; Dkt. No. 125-4 at 8. HCF Nurse Mahina Assily testified in support of
Defendants’ summary judgment motion that she reviewed Gordon’s medical records
and recounted the contents of records related to the first inmate attack on June 6,
2016. Dkt. No. 63-4, ¶¶ 3–7; Dkt. No. 115, ¶ 7. Similarly, Morreira stated that he
has “seen the document with [his] job description,” Dkt. No. 125-4 at 18, and HCF
Program Control Administrator Gary Kaplan testified that he is “familiar with the
job duty description[s]” for both Morreira and Niesen. Dkt. No. 63-3, ¶¶ 5–9; Dkt.
No. 115, ¶ 7. Thus, the information Gordon seeks clearly exists.
Third, the sought-after information is relevant to the issues in the pending
summary judgment motion. “[S]ummary judgment in the face of requests for
additional discovery is appropriate only where such discovery would be ‘fruitless’
with respect to the proof of a viable claim,” Jones v. Blanas, 393 F.3d 918, 930 (9th
Cir. 2004) (citation omitted); that is, the information sought would not “shed light
on any of the issues” that must necessarily be decided to grant summary judgment,
see Stevens, 899 F.3d at 679–80 (quoting Qualls v. Blue Cross of Cal., Inc., 22 F.3d
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839, 844 (9th Cir. 1994)). As it pertains to Gordon’s Eighth Amendment failure-toprotect claim, there are two central issues before the Court on summary judgment.
First, whether there was an objective, “substantial risk of serious harm” to Gordon
prior to the June 20, 2016 inmate assault. See Farmer v. Brennan, 511 U.S. 825,
834, 846 (1994). Second, whether each Defendant’s subjective state of mind was
one of “deliberate indifference” toward that risk—namely, did Niesen, Morreira, and
Dr. Craig “know[] of and disregard[] an excessive risk to [Gordon’s] health or
safety[?]” Id. at 837, 839; see also Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.
2009). What Defendants knew about the prison inmates who assaulted Gordon, e.g.,
their propensity for violence, gang affiliation, and where they were housed, is highly
relevant to these issues. See Jones v. Blanas, 393 F.3d 918, 930–931 (9th Cir.
2004) (holding that additional discovery should have been permitted on
plaintiff’s Fourth Amendment claim because it might have produced evidence tying
searches to defendants’ policies); Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir.
1988) (holding that district court erred in entering summary judgment because
requested discovery was relevant to “prison procedures” and defendants’ deliberate
indifference).
Moreover, the administratively feasible options at Defendants’
disposal to prevent an assault on Gordon are relevant to whether “they responded
reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511
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U.S. at 844. Because the discovery Gordon seeks certainly cannot be deemed
“fruitless,” Jones, 393 F.3d at 930, summary judgment is inappropriate.
The only remaining question is whether Gordon has acted diligently in
pursuing discovery. Gordon has done just that in attempting to obtain the above
information: He requested documents and moved to compel production before he
was even represented by counsel, Dkt. No. 69, and since obtaining counsel, Gordon
has subpoenaed DPS to respond to written deposition questions, Dkt. Nos. 93, 96,
submitted further document requests and interrogatories, attempted to schedule and
depose Defendants. See Dkt. No. 115, ¶¶ 6–8.8 Most importantly, the information
Gordon is seeking was the subject of a discovery dispute before the Magistrate Judge
prior to when Gordon’s opposition brief was filed. Dkt. No. 111. It was not until
recently that Morreira was ordered to produce the OffenderTrak information he
accessed and Gordon was directed to “follow up with [DPS] concerning the
previously issued subpoena that would cover” additional OffenderTrak information,
Gordon’s medical records, and HCF procedures and personnel job duties. Dkt. No.
130 at 3–4.9 Thus, Gordon has conducted discovery diligently because the delay
here was the result of circumstances beyond Gordon’s control. Smith v. Florida
Dep’t of Corrs., 713 F.3d 1059, 1064–65 (11th Cir. 2013) (finding abuses of
8
See supra note 5.
Alternatively, Gordon may seek his own subpoena under Fed.R.Civ.P. 45(b)(2). Cf.
Fed.R.Civ.P. 34(c).
9
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discretion in prematurely granting summary judgment when defendant had been
“blocking” discovery and pro se prisoner had been actively attempting to overcome
defendant’s resistance).
In sum, Gordon has set forth the specific facts he hopes to elicit from further
discovery, there is reason to believe these facts exist, the sought-after facts are
essential to oppose summary judgment, and Gordon has conducted discovery
diligently. Accordingly, Gordon’s Rule 56(d) motion, Dkt. No. 114, is GRANTED,
and summary judgment is deferred.
CONCLUSION
For the reasons stated, Plaintiff’s Motion to Defer Consideration of
Defendants’ Motion for Summary Judgment, Dkt. No. 114, is GRANTED, and
Defendants’ Motion for Summary Judgment, Dkt. No. 62, is DEFERRED.
With respect to Defendants’ Motion for Summary Judgment, the parties shall
each file: (1) a supplemental brief (not to exceed 10 pages), and (2) an updated
concise statement of facts, focused on the additional facts exchanged in discovery
since the filing of the parties’ previous summary judgment briefs. Plaintiff’s
supplemental submissions are due by April 13, 2020. Defendants’ supplemental
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submissions are due by April 23, 2020. No further hearing is necessary, subject to
further order of the Court.
IT IS SO ORDERED.
DATED: February 27, 2020 at Honolulu, Hawai‘i.
Scott Lee Gordon v. Paul Niesen, et al; Civil No. 17-00541 DKW-KJM; ORDER
GRANTING PLAINTIFF’S MOTION TO DEFER CONSIDERATION OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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