Bloodworth v. Timmerman-Cooper et al
Filing
127
OPINION AND ORDER denying 124 Motion for Discovery. Signed by Magistrate Judge Norah McCann King on 3/12/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD BLOODWORTH,
Plaintiff,
vs.
Civil Action 2:10-CV-1121
Judge Marbley
Magistrate Judge King
WARDEN DEBORA A. TIMMERMAN-COOPER,
et al.,
Defendant.
OPINION AND ORDER
Plaintiff, now an inmate at the Toledo Correctional Institution
[“ToCI”], filed this case on January 3, 2011.
Complaint, Doc. No. 5.
On January 19, 2012, the court ordered that all discovery be completed
no later than June 30, 2012.
Doc. No. 72, p. 11.
Order and Report and Recommendation,
On July 31, 2012, upon defendants’ unopposed
motion, the Court extended the discovery deadline to October 31, 2012,
and the deadline to file motions for summary judgment to November 30,
2012.
Order, Doc. No. 102.
Defendants filed a motion for summary judgment on November 27,
2012, Doc. No. 112.
Plaintiff sought and was granted three (3)
extensions of time in which to respond to the motion.
Nos. 116, 119, 121;
Motions, Doc.
Orders, Doc. Nos. 117, 120, 122. In its most
recent extension of time – to February 25, 2013 - the Court expressly
warned plaintiff that there would be no further extension of the time
to respond to defendants’ motion for summary judgment.
No. 122.
Order, Doc.
Nevertheless, plaintiff has not filed a response to
defendants’ motion for summary judgment.
This matter is now before
the Court on Plaintiff’s Affidavit Pursuant to F.R.C.P. 56(f)
(“Plaintiff’s Motion”), Doc. No. 124, which the Court construes as a
motion under Rule 56(d) to permit additional discovery.
Rule 56(d) of the Federal Rules of Civil Procedure, formerly Rule
56(f), establishes the proper procedure to be followed when a party
concludes that additional discovery is necessary to respond to a
motion for summary judgment:
When Facts Are Unavailable to the Nonmovant.
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)
(2)
take
(3)
defer considering the motion or deny it;
allow time to obtain affidavits or declarations or to
discovery; or
issue any other appropriate order.
Fed. R. Civ. P. 56(d).
The affidavit or declaration required by the
rule must “indicate to the district court [the party’s] need for
discovery, what material facts [the party] hopes to uncover, and why
[the party] has not previously discovered the information.”
Cacevic
v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing
Radich v. Goode, 866 F.2d 1391, 1393-94 (3d Cir. 1989)).
A motion
under Rule 56(d) may be properly denied where the requesting party
“̔makes only general and conclusory statements [in the supporting
affidavit or declaration] regarding the need for more discovery and
does not show how an extension of time would have allowed information
related to the truth or falsity of the [document] to be discovered,’”
Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004)
(quoting Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir.
2
1999)), or where the affidavit or declaration “lacks ‘any details’ or
‘specificity.’”
Id. (quoting Emmons v. McLaughlin, 874 F.2d 351, 357
(6th Cir. 1989)).
be over-emphasized.
The importance of complying with Rule 56(d) cannot
See Cacevic, 226 F.3d at 488.
Finally, whether
or not to grant a request for additional discovery falls within the
trial court’s discretion.
Egerer v. Woodland Realty, Inc., 556 F.3d
415, 426 (6th Cir. 2009).
In the case presently before the Court, plaintiff argues that he
propounded numerous discovery requests to which defendants have not
properly responded and that he needs additional discovery in order to
respond to defendants’ motion for summary judgment.
Plaintiff further
argues that ToCI officials waged a “mail tampering campaign” against
him and caused him to “cease [] attempts to mail anything . . . unless
absolutely necessary.”
Plaintiff’s Motion, ¶ 110.
As a result,
plaintiff “did not engage in additional discovery after September[]
2012, to obtain the additional evidence identified” in his current
motion.
Id.
Plaintiff’s Motion is without merit.
Plaintiff has had more than nine (9) months to conduct discovery
in this case. See Order and Report and Recommendation, Doc. No. 72, p.
11; Order, Doc. No. 102.
He apparently chose to “not engage in
additional discovery” during the final month of the discovery period,
see Plaintiff’s Motion, ¶¶ 30, 110.
Moreover, the Court is not
convinced that plaintiff actually requires additional discovery in
order to respond to defendants’ motion for summary judgment;
his
three (3) requests for an extension of time made no mention of the
need for discovery.
Cf.
Motion, Doc. No. 116 (referring to limited
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access to legal materials);
Motion, Doc. No. 119 (referring to the
demands of other litigation);
Motion, Doc. No. 121 (referring to the
demands of other litigation and limited access to legal materials).
Plaintiff has simply not shown that he was diligent in pursuing the
information that he now seeks.
Plaintiff’s Motion, Doc. No. 124, is therefore DENIED.
Nevertheless, plaintiff may have until March 27, 2013 to respond to
defendants’ motion for summary judgment, Doc. No. 112.
There will be no further extension of this date.
If plaintiff
fails to file a response to defendants’ motion for summary by March
27, 2013, the affidavits or other papers submitted in support of
defendants’ motion for summary judgment will be accepted as true by
the Court.
See Fed. R. Civ. P. 56(c).
March 12, 2013
s/Norah McCann King______
Norah McCann King
United States Magistrate Judge
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