Reed v. Department of Corrections et al

Filing 120

ORDER denying without prejudice 108 Motion for Summary Judgment as moot; denying without prejudice 113 Motion for Protective Order; granting 115 Request for Continuance; and denying without prejudice 118 Request for Attorney Fees; signed by Judge David W. Christel. (ERA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Charles V Reed,
Plaintiff,

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v.

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CASE NO. 3:16-cv-05993-BHSDWC
ORDER

Washington State Department of
Corrections et al.,

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Defendants.
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The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United
States Magistrate Judge David W. Christel. Plaintiff Charles V. Reed, proceeding in forma
pauperis, initiated this civil rights action on December 2, 2016. Dkt. 1, 6. Presently pending
before the Court is Defendants’ Second Motion for Summary Judgment (“Second Motion for
Summary Judgment”) (Dkt. 108) and Defendant’s Motion for Protective Order (“Motion for
Protective Order”) (Dkt. 113). Plaintiff responded, requesting a continuance of the Second
Motion for Summary Judgment until further discovery can be completed, Dkt. 115, and opposing

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1 the Motion for Protective Order on the basis that Plaintiff’s discovery requests are relevant and
2 proportional to the needs to the case, Dkt. 118.
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After a review of the Motions and the relevant record, Plaintiff’s request for a

4 continuance is granted (Dkt. 115), and the Second Motion for Summary Judgment (Dkt. 108) is
5 denied without prejudice as moot. The Motion for Protective Order (Dkt. 113) is denied without
6 prejudice.
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BACKGROUND

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In the Second Amended Complaint, Plaintiff alleges his constitutional rights were

9 violated when Defendants denied him treatment for his Hepatitis C. Dkt. 96 at 1. Plaintiff alleges
10 Defendants knew of his serious medical need and failed to provide available treatment, instead
11 allowing his Hepatitis C to progress into a more serious condition. Dkt. 96 at 1.
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Plaintiff initially filed this action on December 2, 2016. Dkt. 1. On September 25, 2017,

13 Defendants filed the First Motion for Summary Judgment. Dkt. 40. The undersigned
14 recommended granting the First Motion for Summary Judgment on the merits but declined to
15 make a recommendation as to whether Defendants were entitled to qualified immunity. Dkt. 57.
16 District Judge Benjamin H. Settle declined to adopt the Report and Recommendation and re17 referred the case to the undersigned for further proceedings. Dkt. 62. Judge Settle also appointed
18 pro bono counsel for Plaintiff. Id. The undersigned directed the parties to submit supplemental
19 briefing on the question of qualified immunity. Dkt. 65. Defendants filed their supplemental
20 brief, arguing they were entitled to qualified immunity. Dkts. 68-71. Through counsel, Plaintiff
21 filed a Motion for Leave to File Second Amended Complaint (“Motion to Amend”), Dkt. 74, and
22 a Motion to Amend Scheduling Order to Allow for Limited Discovery (“Motion for Limited
23 Discovery”), Dkt. 75. In his supplemental brief, Plaintiff sought additional time to conduct
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ORDER - 2

1 discovery before summary judgment. Dkt. 76. Defendants opposed both Motions, arguing the
2 Court should make a determination as to qualified immunity before granting leave for Plaintiff to
3 amend his complaint or reopening discovery. Dkts. 81, 82.
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On August 9, 2018, the undersigned entered a second Report and Recommendation,

5 recommending Defendants’ First Motion for Summary Judgment be granted as to qualified
6 immunity. Dkt. 87. Judge Settle adopted the recommendation in part, dismissing Plaintiff’s
7 claims regarding the promulgation of the Department of Corrections (“DOC”) protocol regarding
8 treatment of Hepatitis C. Dkt. 90. Judge Settle declined to adopt the Report and
9 Recommendation as to Defendants’ entitlement qualified immunity regarding their alleged
10 individual deliberate indifference and re-referred the First Motion for Summary Judgment to the
11 undersigned. Id.
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The undersigned then granted the Motion to Amend, directing Plaintiff to file a second

13 amended complaint, and granted the Motion for Limited Discovery. Dkt. 94. The undersigned
14 recommended the First Motion for Summary Judgment be denied as moot, based on the filing of
15 a second amended complaint, but allowed Defendants to re-file a dispositive motion based on the
16 allegations contained in the second amended complaint, which Judge Settled adopted. Dkts. 95,
17 101. On January 25, 2019, Plaintiff filed his Second Amended Complaint. Dkt. 96.
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On February 8, 2019, Defendants filed an Answer to the Second Amended Complaint.

19 Dkt. 100. On February 21, 2019, the parties entered a discovery plan. Dkt. 102. Discovery is to
20 be completed by August 22, 2019 and dispositive motions are due on or before September 23,
21 2019. Dkts. 102, 103. One month later, on March 20, 2019, Defendants filed the Second Motion
22 for Summary Judgment. Dkt. 108. On April 9, 2019, Defendants filed the Motion for Protective
23 Order. Dkt. 113.
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ORDER - 3

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DISCUSSION
I.

Second Motion for Summary Judgment (Dkt. 108)

In the Second Motion for Summary Judgment, Defendants move for summary judgment

4 on the issue of qualified immunity. Dkt. 108. Defendants argue Plaintiff fails to show he suffered
5 a deprivation of a constitutional or statutory right, and he fails to show the right allegedly
6 deprived was clearly established at the time of the alleged misconduct. Dkt. 108 at 2.
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In opposition, Plaintiff asserts the Second Motion for Summary Judgment is premature and

8 should be denied or continued while discovery takes place. Dkt. 115 at 1-3. Plaintiff states he
9 served interrogatories and requests for production on Defendants. Dkt. 116 at ¶ 10. In response to
10 Plaintiff’s discovery requests, Defendants did not produce any documents, objected to every
11 discovery request, and filed the Motion for Protective Order. Id.; Dkt. 113. Plaintiff states he has
12 not taken any depositions. Dkt. 116 at ¶ 11. As a result of the lack of discovery, Plaintiff asserts
13 nothing has changed since the Court’s prior ruling and Defendants have again filed another
14 motion for summary judgment based on qualified immunity. Dkt. 115 at 4.
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Plaintiff submits the affidavit of counsel, Danny Kelly-Stallings, which identifies the

16 relevant information sought. See Dkt. 116. In the declaration, Plaintiff’s counsel argues he needs
17 further discovery to determine: (1) whether Defendants knew of and disregarding risks to
18 Plaintiff’s health; (2) the extent of Plaintiff’s extrahepatic symptoms; and (3) why Plaintiff’s
19 condition was not monitored. Dkt. 116. Plaintiff’s counsel states Plaintiff has not conducted any
20 discovery on these facts to date because he was incarcerated and proceeding pro se during the
21 first round of discovery. Dkt. 116 at ¶ 16.
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In the Reply, Defendants argue they would be prejudiced if discovery is permitted. Dkt.

23 117 at 2-3. Defendants contend the qualified immunity defense would be “effectively lost
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1 without the Court ruling on whether any of the allegations in [Plaintiff’s] now amended
2 complaint can be disposed of prior to discovery.” Id. at 3-4. In the alternative, Defendants
3 contend any discovery permitted should be narrowly limited. Id. at 4.
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Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, “the court shall grant

5 summary judgment if the movant shows that there is no genuine dispute as to any material fact
6 and the movant is entitled to judgment as a matter of law.” However, Federal Rule of Civil
7 Procedure 56(d) “provides a device for litigants to avoid summary judgment when they have not
8 had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians Serv.,
9 314 F.3d 995, 1000 (9th Cir. 2002). Under Rule 56(d), if the nonmoving party “shows by
10 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its
11 opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain
12 affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R.
13 Civ. P. 56(d). In order to prevail under Rule 56(d), the party opposing summary judgment must
14 make “ ‘(a) a timely application which (b) specifically identifies (c) relevant information, (d)
15 where there is some basis for believing that the information sought actually exists.’ ” Emp'rs
16 Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox, 353 F.3d 1125, 1129 (9th Cir.
17 2004) (quoting VISA Int'l Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.
18 1986)). The Ninth Circuit has held a Rule 56(d) continuance “should be granted almost as a
19 matter of course unless the non-moving party has not diligently pursued discovery of the
20 evidence.” Burlington N. Santa Fe R.R. Co. v. The Assiniboine & Sioux Tribes of the Fort Peck
21 Reservation, 323 F.3d 767, 773–74 (9th Cir. 2003) (internal quotation marks and citations
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omitted).
The requirements under Rule 56(d) have been met. The Second Motion for Summary
Judgment is based on the argument Defendants are entitled to qualified immunity, and Plaintiff

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1 has not had the opportunity to discover information to justify his opposition. See Fed. R. Civ. P.
2 56(d). Plaintiff has met the requirement of showing by declaration he cannot present facts
3 essential to justify his opposition to the Second Motion for Summary Judgment. See Dkts. 115,
4 116. Plaintiff’s counsel states specific facts Plaintiff seeks to elicit through further discovery.
5 Dkt. 116. Plaintiff’s counsel states the facts are essential to opposing the Second Motion for
6 Summary Judgment because they would show whether Defendants were deliberately indifferent
7 to Plaintiff’s medical needs and whether they are entitled to qualified immunity. See id. He also
8 sufficiently demonstrates the specific facts exist by identifying specific witnesses and experts to
9 whom Plaintiff seeks to obtain the facts. See id. As Plaintiff has not received any response to his
10 discovery requests to date with respect to the claims in his Second Amended Complaint, he
11 cannot put forth any evidence to controvert the Second Motion for Summary Judgment. See id.
12 There is no evidence Plaintiff has failed to diligently pursue discovery.
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Moreover, Defendants previously moved for summary judgment on qualified immunity,

14 Dkt. 68-71, and the Court found additional evidence would be necessary to resolve this issue.
15 Dkts. 87, 90, 93, 94. Discovery does not close until August 22, 2019 and dispositive motions are
16 not due until September 23, 2019. Dkts. 102, 103.
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Based on the foregoing, the undersigned concludes Plaintiff has met the requirements of

18 Rule 56(d) to require further discovery prior to ruling on Second Motion for Summary Judgment.
19 Accordingly, the undersigned grants Plaintiff’s request for a continuance pursuant to Rule 56(d).
20 The Second Motion for Summary Judgment (Dkt. 108) is denied without prejudice as moot.
21 Defendants may to re-file their motion following the completion of discovery, on or before
22 September 23, 2019.
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ORDER - 6

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II.

Motion for Protective Order

Defendants also seek a protective order striking all pending discovery propounded by

3 Plaintiff and staying all future discovery while the Second Motion for Summary Judgment is
4 considered by the Court. Dkt. 113. In the alternative, Defendants move for the Court to state
5 which qualified immunity issues cannot be decided without additional discovery and limit any
6 required responses to only information needed for a decision on those issues. Id.
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In light of the fact the Second Motion for Summary Judgment has been denied as moot in

8 order for the parties to complete discovery, the posture of the case has changed, and therefore,
9 the Motion for Protective Order (Dkt. 113) is also denied without prejudice. The parties are
10 directed to meet and confer on the discovery disputes raised in the Motion for Protective Order.
11 Plaintiff’s request for attorney fees (Dkt. 118) is denied without prejudice.
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Dated this 8th day of May, 2019.

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David W. Christel
United States Magistrate Judge

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ORDER - 7