Brown v. Clark County Detention Center et al
Filing
97
ORDER Denying without Prejudice 45 the Defendants' Motion for Summary Judgment. Signed by Judge Andrew P. Gordon on 3/30/17. (Copies have been distributed pursuant to the NEF - MR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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CHARON L. BROWN,
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Plaintiff,
v.
CLARK COUNTY DETENTION CENTER,
et al.,
Defendants.
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Case No. 2:15-cv-01670-APG-NJK
ORDER DENYING WITHOUT
PREJUDICE THE DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
(ECF No. 45)
Plaintiff Charon Brown, a detainee at Clark County Detention Center, filed suit alleging
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defendant Darren Mecham used excessive force and defendants Kevin Kegley and Michael Sands
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violated his due process rights in relation to a disciplinary hearing. Defendants Mecham, Kegley,
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and Sands move for summary judgment. Brown responds by requesting I deny or defer ruling on
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the motion under Federal Rule of Civil Procedure 56(d) because he does not have evidence
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necessary to refute the motion for summary judgment.
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Federal Rule of Civil Procedure 56(d) states that:
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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) 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.
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“[T]he party seeking the continuance must show that it lacks the ‘facts essential’ to resist the
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summary judgment motion.” McCormick v. Fund Am. Companies, Inc., 26 F.3d 869, 885 (9th
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Cir. 1994).
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Brown, who currently is pro se, argues that he has been unable to obtain necessary
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discovery to oppose the summary judgment motion, including the minutes and transcripts from
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his hearing before the Conduct Adjustment Board, the transcript of his deposition, Mecham’s
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disciplinary record, video surveillance of the incident, and pictures of Brown’s injuries following
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the incident. ECF No. 49. The importance of some of these items (particularly video of the
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incident) to Brown’s opposition to the summary judgment motion is obvious. Brown asserts the
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video and the pictures of his injuries will support his claim that Mecham used excessive force.
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Following the defendants’ summary judgment motion and Brown’s response, the
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Magistrate Judge extended discovery. ECF No. 74. She also reconsidered her prior orders
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denying Brown counsel and referred him to the pro bono pilot program. ECF No. 83. In doing so,
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the Magistrate Judge discussed Brown’s latest motion to compel, which raises potential spoliation
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issues. Id. Brown then filed a motion for sanctions due to spoliation, which the Magistrate Judge
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has held in abeyance pending referral to the pro bono program. ECF Nos. 87, 88.
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In light of Brown’s identification of evidence that may assist in resisting the defendants’
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summary judgment motion, the subsequent reopening of discovery and related issues regarding
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possible spoliation of evidence, and the new appointment of pro bono counsel, I deny the
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defendants’ motion for summary judgment without prejudice under Rule 56(d).
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IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment
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(ECF No. 45) is DENIED without prejudice.
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DATED this 30th day of March, 2017.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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