Moore v. Cruse et al
Filing
37
OPINION AND ORDER denying 33 Plaintiff's Motion. Plaintiff may have fourteen (14) days to respond to 31 Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 9/10/2013. (er1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN PATRICK MOORE,
Plaintiff,
Civil Action 2:12-cv-609
Judge Marbley
Magistrate Judge King
vs.
BRENT CRUSE, et al.,
Defendants.
OPINION AND ORDER
Plaintiff John Patrick Moore, now an inmate at the Southern Ohio
Correctional Facility, filed this civil rights action under 42 U.S.C.
§ 1983 on July 10, 2012.
Complaint, Doc. No. 5.
The Complaint
asserts claims under § 1983 for, inter alia, violations of the First
and Eighth Amendments to the United States Constitution.
Specifically, the Complaint alleges that defendants discriminated
against plaintiff and assault plaintiff during a volleyball game at
Chillicothe Correctional Institution (“CCI”) based on his religious
beliefs and for wearing religious headgear.
Id. at pp. 5-7.
Defendants filed a motion for summary judgment on March 14, 2013,
Defendants Cruse, Pfeifer, Thornhill, and Walker’s Motion for Summary
Judgment, Doc. No. 31.
On March 26, 2013, plaintiff filed a motion
titled Declaration of John Moore (“Plaintiff’s Motion”), Doc. No. 33,
seeking additional time to complete discovery under Fed. R. Civ. P.
56(d).
Defendants have filed a response to Plaintiff’s Motion,
Defendants’ Response, Doc. No. 36.
Plaintiff has not filed a reply.
This matter is now ripe for consideration.
Rule 56(d) of the Federal Rules of Civil Procedure 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, 886 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 [information sought] 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. 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)).
The importance of complying with the
specific requirements of Rule 56(d) cannot be over-emphasized.
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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 seeks
additional discovery to (1) “review the rosters of Inmate name and
numbers” of the individuals who participated in the volleyball league,
(2) “review security footage of the incident,” and (3) have an
“opportunity to interview each person who was on the volleyball
league.”
Plaintiff’s Motion, ¶¶ 4-5, 7.
Plaintiff asserts that this
discovery will permit him to obtain “written Affidavits and
declarations from Inmates that were present [at the volleyball game],”
“produce witness testimony that [he was assaulted,]” and “clearly show
the facts in a light favorable to [his] claim.”
Id. at ¶¶ 3-5.
Additional time to complete discovery is necessary, plaintiff argues,
because he did not have sufficient time to learn the identities of
witnesses while incarcerated at CCI, “he has not had access to
discovery,” and defendants “claim confidentiality” regarding the
identities of the inmates in the volleyball league.
Id. at ¶¶ 3, 6-7.
Plaintiff’s arguments are without merit.
Plaintiff has had more than four and a half months to conduct
discovery in this case.
See Order, Doc. No. 16, p. 1 (September 10,
2012 order directing that “[d]iscovery may proceed and must be
completed no later than January 31, 2013”).
Nevertheless, it does not
appear that plaintiff conducted, or even attempted to conduct, any
discovery; defendants’ representation that plaintiff has not sought
any discovery, see Defendants’ Response, pp. 1-3, is uncontroverted.
Plaintiff does represent that defendants “claim confidentiality”
regarding the identities of inmates in the volleyball league.
However, prior to filing Plaintiff’s Motion on March 26, 2013, no
party had filed a motion to extend the discovery deadline, a motion to
compel discovery, or any other discovery related motion.
Plaintiff
has simply not shown that he was diligent in pursuing the information
that he now seeks.
The Court also concludes that plaintiff’s
declaration lacks the specificity required by Rule 56(d).
Specifically, plaintiff’s conclusory declaration does not adequately
articulate the material information that plaintiff hopes to learn, nor
does it explain why that information is necessary to respond to the
Motion for Summary Judgment, why he has not previously learned that
information, and why the requested extension of the discovery
completion date would permit him to learn that information.
Plaintiff’s Motion, Doc. No. 33, is therefore DENIED.
Plaintiff may have fourteen (14) days to respond to the Motion
for Summary Judgment, Doc. No. 31.
If plaintiff fails to file a
response to the Motion for Summary Judgment within fourteen days of
this order, the affidavits or other papers submitted in support of the
Motion for Summary Judgment will be accepted as true by the Court.
See Fed. R. Civ. P. 56(c).
September 10, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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