Opinion
No. C10-5583 BHS/KLS
09-19-2011
WILLIAM DAVENPORT, Plaintiffs, v. KELLY CUNNINGHAM, DAROLD WEEKS, CATHY HARRIS, RANDALL GRIFFITH, BARBARA BOARDMAN, LINDA BRYANT, WILLIE STODDARD, HENRY RICHARDS, and UNIDENTIFIED MED DISPENSING NURSES, Defendants.
ORDER DENYING MOTION FOR RULE 56(F) CONTINUANCE
Before the Court is Plaintiff William Davenport's "Opposition to States Motion for Summary Judgment." ECF No. 44. Plaintiff does not rebut any arguments made in Defendants' motion for summary judgment nor does he produce any evidence in opposition. Instead, he argues that now is not the appropriate time for summary judgment as the Defendants have failed to comply with his discovery requests. Id. For the reasons set forth below, this argument is rejected.
BACKGROUND
Defendants sent responses to Plaintiff's discovery requests to him. The responses were contained on a CD, which according to rules of the Special Commitment Center (SCC) must be scanned. Plaintiff rejected and sent back the CD to Defendants' counsel because he objected to having the CD scanned by the SCC mailroom supervisor. ECF No. 45, p. 2. According to Plaintiff, he was told he could not have the CD because he does not own a computer. However, Plaintiff asserts that he was attempting to purchase a computer (which he expected to have by August 15, 2011), and requested that the summary judgment motions (the Court assumes Plaintiff is also referring to Defendant Griffith's motion which has already been granted), be denied, that discovery be extended, and that Defendants be ordered to produce discovery. ECF No. 44, p. 4.
Plaintiff has not filed a motion to produce any discovery and includes no certification that he has in good faith conferred or attempted to confer with the SCC Defendants' counsel in an effort to secure the information or material without court intervention. Fed. R. Civ. P. 37(a)(2)(B). More importantly, Plaintiff fails to demonstrate that there are specific facts he hopes to discover if granted a continuance that will raise a genuine issue of material fact. Rule 56(f) of the Federal Rules of Civil Procedure provides:
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:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
A party seeking a continuance under Rule 56(f) must demonstrate that there are specific facts he hopes to discover if granted a continuance that will raise a genuine issue of material fact. Harris v. Duty Free Shoppers Ltd. Partnership, 940 F.2d 1272, 1276 (9th Cir.1991); Carpenter v. Universal Star Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir.1991). "The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists." Volk v. D.A. Davidson & Co, 816 F.2d 1406, 1416 (9th Cir.1987). See also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir.2006); California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (party opposing on Rule 56(f) grounds needs to state the specific facts he hopes to elicit from further discovery, that the facts sought exist and that the sought-after facts are essential to resisting the summary judgment motion); Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n. 1 (9th Cir.1986) (holding 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").
Plaintiff has detailed no facts that he hopes to discovery that are essential to resisting the summary judgment motion. His request for continuance of the summary judgment motion is not well taken.
Accordingly, it is ORDERED:
(1) Plaintiff's motion to compel discovery and/or continue the Defendants' motion for summary judgment (ECF No. 44) is DENIED.
(2) The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants.
Karen L. Strombom
United States Magistrate Judge