Davenport v. Cunningham et al

Filing 49

ORDER DENYING MOTION FOR RULE 56(F) CONTINUANCE re 44 Response to Motion filed by William Davenport signed by Magistrate Judge Karen L Strombom. (MET) cc: plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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WILLIAM DAVENPORT,

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Plaintiffs,
v.

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No. C10-5583 BHS/KLS

KELLY CUNNINGHAM, DAROLD
WEEKS, CATHY HARRIS, RANDALL
GRIFFITH, BARBARA BOARDMAN,
LINDA BRYANT, WILLIE
STODDARD, HENRY RICHARDS, and
UNIDENTIFIED MED DISPENSING
NURSES,

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ORDER DENYING MOTION FOR RULE
56(F) CONTINUANCE

Defendants.

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Before the Court is Plaintiff William Davenport’s “Opposition to States Motion for
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Summary Judgment.” ECF No. 44. Plaintiff does not rebut any arguments made in Defendants’

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motion for summary judgment nor does he produce any evidence in opposition. Instead, he

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argues that now is not the appropriate time for summary judgment as the Defendants have failed

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to comply with his discovery requests. Id. For the reasons set forth below, this argument is

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rejected.

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BACKGROUND

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Defendants sent responses to Plaintiff’s discovery requests to him. The responses were

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contained on a CD, which according to rules of the Special Commitment Center (SCC) must be

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scanned. Plaintiff rejected and sent back the CD to Defendants’ counsel because he objected to

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having the CD scanned by the SCC mailroom supervisor. ECF No. 45, p. 2. According to

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Plaintiff, he was told he could not have the CD because he does not own a computer. However,
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Plaintiff asserts that he was attempting to purchase a computer (which he expected to have by

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August 15, 2011), and requested that the summary judgment motions (the Court assumes

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Plaintiff is also referring to Defendant Griffith’s motion which has already been granted), be

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denied, that discovery be extended, and that Defendants be ordered to produce discovery. ECF

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No. 44, p. 4.
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Plaintiff has not filed a motion to produce any discovery and includes no certification that

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he has in good faith conferred or attempted to confer with the SCC Defendants’ counsel in an

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effort to secure the information or material without court intervention. Fed. R. Civ. P.

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37(a)(2)(B). More importantly, Plaintiff fails to demonstrate that there are specific facts he

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hopes to discover if granted a continuance that will raise a genuine issue of material fact. Rule

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56(f) of the Federal Rules of Civil Procedure provides:

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If a party opposing the motion [for summary judgment] shows by affidavit that,
for specified reasons, it cannot present facts essential to justify its opposition, the
court may:

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(1) deny the motion;

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(2) order a continuance to enable affidavits to be obtained, depositions to be
taken, or other discovery to be undertaken; or

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(3) issue any other just order.
A party seeking a continuance under Rule 56(f) must demonstrate that there are specific

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facts he hopes to discover if granted a continuance that will raise a genuine issue of material fact.

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Harris v. Duty Free Shoppers Ltd. Partnership, 940 F.2d 1272, 1276 (9th Cir.1991); Carpenter

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v. Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir.1991). “The burden is on the

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party seeking to conduct additional discovery to put forth sufficient facts to show that the

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evidence sought exists.” Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416 (9th Cir.1987). See

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also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir.2006); California

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v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (party opposing on Rule 56(f) grounds needs to

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state the specific facts he hopes to elicit from further discovery, that the facts sought exist and

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that the sought-after facts are essential to resisting the summary judgment motion); Hancock v.

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Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n. 1 (9th Cir.1986) (holding
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that the party opposing summary judgment “has the burden under Rule 56(f) to show what facts
he hopes to discover to raise an issue of material fact”).

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Plaintiff has detailed no facts that he hopes to discovery that are essential to resisting the

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summary judgment motion. His request for continuance of the summary judgment motion is not

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well taken.

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Accordingly, it is ORDERED:

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(1)

Plaintiff’s motion to compel discovery and/or continue the Defendants’ motion

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for summary judgment (ECF No. 44) is DENIED.
(2)

The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants.

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DATED this 19th day of September, 2011.
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A

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Karen L. Strombom
United States Magistrate Judge

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