Nickman v. Zarraga et al

Filing 70

MEMORANDUM AND ORDER - Plaintiff is given 14 days in which to file an affidavit or declaration that plainly sets forth (1) the specific facts he hopes to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are essential to resist the summary judgment motion. Failure to do so will result in summary dismissal of Plaintiff's Rule 56(d) motion. If Plaintiff timely files an affidavit or declaration in support of his Rule 56(d) motion, Defendants will have 14 days in which to respond to the Rule 56(d) motion. If Plaintiff does not file an affidavit or declaration in support of his Rule 56(d) motion within 14 days, he will have 14 days from the date the affidavit or declaration is due in which to file a response to Defendants' summary judgment motion. The clerk's office is directed to set the following pro se case management deadline: March 10, 2017: Check for Plaintiff's affidavit and response from Defendants or Plaintiff& #039;s brief in response to MSJ. Plaintiff's "Motion for Time Extension or Continuance" (Filing No. 68 ) is stayed in abeyance pending filing of an additional affidavit or declaration within 14 days. His request for time to respond to Defendants' Motion for Summary Judgment is granted to the extent the relief he seeks is consistent with the relief provided in this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSHUA M. NICKMAN,
Plaintiff,

8:16CV262

vs.
JUAN M. ZARRAGA, Individual
Capacity; SHELBY L. RAWLINGS,
Individual Capacity; ANDREW L.
MCLEAN, Individual Capacity;
COLTON J. GUERRERO, Individual
Capacity; MICHAEL TUBBS,
Individual Capacity; JESUS J.
RAMIREZ, Individual Capacity; JAIME
LYN CRAFT, Individual Capacity;
JESSICA M. STROUP, Individual
Capacity; SCOTT B. ANDREALA,
Individual Capacity; ERIC JON
LITTLE, Individual Capacity;
JONATHAN R. TRIPP, Individual
Capacity; and AARON GRAY,
Individual Capacity;

MEMORANDUM
AND ORDER

Defendants.
On January 10, 2017, Defendants1 filed a Motion for Summary Judgment
based on qualified immunity. (Filing No. 49; Filing No. 50.) On January 20, 2017,
Plaintiff filed motions seeking discovery. (Filing No. 64; Filing No. 65.) On
January 31, 2017, the court denied Plaintiff’s motions for discovery without
prejudice and stayed all discovery pending resolution of Defendants’ Motion for
Summary Judgment. (Filing No. 66.) The court informed Plaintiff in its order that
he would not be prohibited from filing a properly supported motion to obtain court
1

This includes every defendant but Defendant Jonathan R. Tripp, who has
yet to be served.

approval to conduct limited discovery regarding issues raised by Defendants in
their Motion for Summary Judgment. (Id.) On February 6, 2017, Plaintiff filed a
“Motion for Time Extension or Continuance” pursuant to Fed. R. Civ. P. 56(d).2
(Filing No. 68.) He seeks a thirty-day extension to respond to Defendants’ Motion
for Summary Judgment so that he may have “all the discovery info to counter the
defendants summary judgment.” (Id.) Defendants filed a brief in opposition to
Plaintiff’s motion. (Filing No. 69.) They argue that Plaintiff’s motion should be
denied because it is not properly supported as required by Fed. R. Civ. P. 56(d).
(Id.)
Rule 56(d) sets forth 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:
(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). The party seeking additional discovery must show: “(1) that
they have set forth in affidavit form the specific facts that they hope to elicit from
further discovery, (2) that the facts sought exist, and (3) that these sought-after
facts are ‘essential’ to resist the summary judgment motion.” Toben v. Bridgestone
Retail Operations, LLC, 751 F.3d 888, 895 (8th Cir. 2014) (quoting State of Cal.,
on Behalf of Cal. Dep’t of Toxic Subs. Control v. Campbell, 138 F.3d 772, 779 (9th
Cir.1998). Rule 56(d) does not condone a fishing expedition. Duffy v. Wolle, 123
F.3d 1026, 1041 (8th Cir. 1997).
Here, Plaintiff failed to comply with Rule 56(d). Plaintiff did not show by
affidavit or declaration the specific facts that he hopes to elicit from further
2

Plaintiff cites Fed. R. Civ. P. 56(f), which is now Fed. R. Civ. P. 56(d).
2

discovery. In light of Plaintiff’s pro se status, the court will give Plaintiff one
additional opportunity to file an affidavit or declaration that plainly sets forth (1)
the specific facts he hopes to elicit from further discovery, (2) that the facts sought
exist, and (3) that these sought-after facts are essential to resist the summary
judgment motion.
IT IS THEREFORE ORDERED that:
1.
Plaintiff is given 14 days in which to file an affidavit or declaration
that plainly sets forth (1) the specific facts he hopes to elicit from further
discovery, (2) that the facts sought exist, and (3) that these sought-after facts are
essential to resist the summary judgment motion. Failure to do so will result in
summary dismissal of Plaintiff’s Rule 56(d) motion.
2.
If Plaintiff timely files an affidavit or declaration in support of his
Rule 56(d) motion, Defendants will have 14 days in which to respond to the Rule
56(d) motion.
3.
If Plaintiff does not file an affidavit or declaration in support of his
Rule 56(d) motion within 14 days, he will have 14 days from the date the affidavit
or declaration is due in which to file a response to Defendants’ summary judgment
motion.
4.
The clerk’s office is directed to set the following pro se case
management deadline: March 10, 2017: Check for Plaintiff’s affidavit and
response from Defendants or Plaintiff’s brief in response to MSJ.
5.
Plaintiff’s “Motion for Time Extension or Continuance” (Filing No.
68) is stayed in abeyance pending filing of an additional affidavit or declaration
within 14 days. His request for time to respond to Defendants’ Motion for
3

Summary Judgment is granted to the extent the relief he seeks is consistent with
the relief provided in this Memorandum and Order.
Dated this 10th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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