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Hunt v. Rodriguez

August 18, 2009

ZACKERY HUNT, PLAINTIFF,
v.
R. RODRIGUEZ, ET AL., DEFENDANTS



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, apparently an intermittent state prisoner, county inmate or parolee*fn1 proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is 1) defendant's motion for summary judgment, filed on February 24, 2009 (dkt # 67), to which plaintiff filed his opposition on April 15, 2009 (dkt # 80 and # 81), after which defendant filed a reply on April 23, 2009 (dkt # 85); 2) plaintiff's April 15, 2009 (dkt #79), request for a continuance and request (dkt # 82) for the court to order defendant to comply with the court's order, filed on January 26, 2009, to which defendant filed her opposition on April 23, 2009 (dkt # 84 and also at dkt # 85*fn2 ); 3) plaintiff's April 21, 2009 (dkt # 83), motion for a continuance and motion to compel in response to the court's order, filed on April 8, 2009, granting plaintiff a thirty-day extension of time either to file an opposition to the motion for summary judgment filed by defendant or to make the request showing for a continuance pursuant to Fed. R. Civ. P. 56(f), and plaintiff's May 1, 2009 (dkt # 86), motion again seeking a continuance, to which defendant filed an opposition on May 7, 2009 (dkt # 87).

By way of providing context to the current posture of the case, the court notes that the summary judgment motion is now pending because the undersigned vacated defendant's prior motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), because defendant's efforts within that motion to obtain judicial notice of public documents containing disputed facts and not actually judicially noticeable on a motion to dismiss, would have transmuted it impermissibly into one brought pursuant to Fed. R. Civ. P. 56. See Order, filed on Jan. 26, 2009; Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir. 2001). The court directed defendant therein to file a summary judgment motion within thirty days. Defendant filed the dispositive motion timely, pursuant to the order; defendant's answer was filed on Feb. 25, 2009 (dkt # 68).

Second Amended Complaint

As the court has previously set forth, by Order, filed on Jan. 26, 2009 (dkt # 64) (p. 2), on April 21, 2008, plaintiff filed a second amended complaint,*fn3 naming as the sole defendant Parole Agent R. Rodriguez of the San Jose Region II office. Second Amended Complaint (SAC), pp. 2-3. Defendant Rodriguez is plaintiff's parole agent, responsible for supervising plaintiff's parole and for discharging plaintiff from parole. Id., at 3. Although plaintiff had been discharged from parole as of April 17, 2005, for which plaintiff had signed a CDC 1515 form (a copy of which plaintiff does not attach to his complaint), defendant Rodriguez placed a parole hold on plaintiff on July 12, 2006, and thereafter charged plaintiff with "approx[imately]" two parole violations. Id., at 3-4. Defendant Rodriguez was deprived of his liberty for eight months, was exposed to prison riots, was unable to work, and deprived of his family's support due to the actions of defendant Rodriguez. [Id., at 4]. Plaintiff seeks money damages and declaratory relief in the form of a declaration that plaintiff's parole discharge date was April 17, 2005. Id., at 3.

Motions/Requests for a Continuance

The basis for federal jurisdiction in this case, as construed by this court, is that plaintiff alleges a violation of a substantive due process right. Plaintiff has filed various requests for a continuance, primarily on the basis that he needs access to further discovery in the form of a putative "contract" yet to be produced by defendant.

Fed. R. Civ. P. 56(f) provides,

If a party opposing the [summary judgment] motion 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.

Fed. R. Civ. P. 56(f).

Although the posture of this case is such that defendant's dispositive motion has come on prior to the issuance of a scheduling order,*fn4 setting forth, inter alia, a discovery deadline, defendant avers that she has responded to all of plaintiff's discovery requests. Indeed, plaintiff himself indicates that he had received defendant's discovery responses as of April 13, 2009. See plaintiff's motion for continuance & motion to compel, filed on April 21, 2009 (dkt # 83). Plaintiff in his filings apparently continues to seek a copy of his CDC 1515 parole agreement for a period of three years, as well as all Board of Parole Hearing (BPH) decisions and conclusions related to discharge reviews. See plaintiff's motions, filed on April 15, 2009 (dkt # 79, # 82), and on May 1, 2009 (dkt # 86). Defendant argues that none of the documents plaintiff seeks warrant a continuance because any of the BPH decisions and conclusions related to plaintiff's discharge reviews are irrelevant in light of the chronological history of plaintiff's incarceration, the chronology of, which is not in dispute, records plaintiff's parole holds, arrests, parole revocations, reincarceration and subsequent adjustments to his Maximum Controlling Discharge Date (CDD). Defendant's Opposition (Opp.), filed on April 23, 2009 (dkt # 84), pp. 3-4; defendant's Opp., filed on May 7, 2009 (dkt # 87), p. 7. Defendant, apparently no longer plaintiff's parole agent, maintains that she has produced all documents within her possession, custody and control and cannot be compelled to produce documents not in her possession. Defendant's Opp., filed on May 7, 2009 (dkt # 87), pp. 5-6. Defendant also objects to plaintiff's taking issue with the substantive responses defendant provided in response to plaintiff's interrogatories. Dkt # 87, pp. 4-5. Defendant is correct that plaintiff's objection, at dkt # 83 (pp. 2-3), to defendant's statement that the CDC 1515 is not a contract; that Cal. Penal Code ยง 3000(a) does not dictate a maximum parole period; and that parolees, ...


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