Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment. Plaintiff has not opposed defendants' motion, but has filed a number of other motions, including a motion for a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure.
In his complaint plaintiff alleges the following facts. In 2004, he was suffering from depression and hearing voices and was placed in the Correctional Treatment Center (CTC) at his prison, where he was prescribed medication. He was discharged from the CTC after a week, despite still being suicidal. After he was escorted back to his cell, he was given two pill bottles containing Prozac and Risperdal by an unidentified correctional officer, named as John Doe in plaintiff's complaint, in the presence of defendants Anthony and Sloss-Peck.*fn1 The following day, plaintiff overdosed on the medications given to him by the unidentified officer. Compl. at 4-5. Plaintiff claims that defendants Anthony, Sloss-Peck and John Doe acted with deliberate indifference to his serious medical condition, and seeks compensatory and punitive damages against them. Id. at 8.
As noted, plaintiff has filed a number of motions that are now pending before the court. SeeDoc. Nos. 104-113, 116. All but one of his motions are nearly identical to motions that this court ruled on in its April 29, 2009 order. See Doc. Nos. 104 (Motion to Appoint Counsel), 105 (Motion to Reinstate Discovery), 106 (Motion for Leave to Amend the Complaint), 107 (Motion for Leave to File a Supplemental Complaint), 108 (Motion for Order Modifying Pretrial Order), 109 (Motion in Limine for Exclusion of Evidence), 110 (Motion in Limine for Exclusion of Evidence), 111 (Motion for Approval for Judge to Allow Plaintiff to Get Declaration Via Witness Chris Burgess), 112 (Motion for a Petition for a Writ of Habeas Corpus Ad Testificandum Regarding Chris Burgess) and 113 (Motion for a Petition For Writ of Habeas Corpus Ad Testificandum Regarding Plaintiff's Presence). Plaintiff's one new motion is styled "Motion for 90 Day Extension of Time to Conduct Discovery." Doc. No. 116. Defendants have filed oppositions to plaintiff's requests to modify the scheduling order in which plaintiff seeks additional time to obtain a declaration in opposition to summary judgment from witness Burgess. SeeDoc. Nos. 117-119.
The court has previously denied plaintiff's motions to appoint counsel, to reopen discovery and modify the scheduling order, and his premature motion for a writ to issue for his attendance at trial. Since plaintiff's renewed motions addressing these same issues raise no new facts or arguments, the court will deny them for the same reasons explained in its April 29, 2009 order. The court has previously denied without prejudice plaintiff's motions to supplement or amend his complaint, motions in limine, and motion for a writ to allow witness Burgess to attend trial. Again, plaintiff's renewed motions addressing these issues contain no new facts or arguments. Plaintiff has already been instructed that his motions in limine and motion to bring his incarcerated witnesses to trial should be filed after the court issues its pretrial order, and that his motion to amend his complaint is premature until and unless he seeks to add by name the defendant currently identified in his complaint only as John Doe. Accordingly, the court again denies these motions without prejudice.
The court also previously denied without prejudice plaintiff's motion for an order allowing him to obtain a declaration from inmate witness Chris Burgess. The motion was denied because plaintiff did not then identify the information that he claimed the witness could provide nor did he describe how the information sought was relevant to his claims. Plaintiff's renewed request in this regard is tied to his one new motion, which requests a 90-day enlargement of time to conduct discovery under Fed. R. Civ. P. 56(f). SeeDoc. Nos. 111, 116. In this new motion, plaintiff argues that in order to oppose defendants' pending motion for summary judgment, he requires a court order to obtain a declaration from Burgess. Plaintiff also argues that he needs to conduct additional discovery to obtain the names of prison personnel who were working on the date that he was discharged from the treatment center. In addition, plaintiff states that he cannot oppose defendants' summary judgment motion because African Americans are currently on lockdown at the institution where he is confined and he does not have access to the law library. Plaintiff has submitted a sworn affidavit attesting to these facts. (Aff. Of Pl., Doc. No. 116 at 3.)
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:
(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). Seealso 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 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 she hopes to discover to raise an issue of material fact").*fn2
In his Rule 56(f) motion, plaintiff explains that he needs to obtain a declaration from an inmate named Chris Burgess, who was his cellmate at the time of the incident from which this lawsuit stemmed. As noted, plaintiff's complaint alleges that he was in his cell when an unidentified correctional officer gave him two bottles of medication in the presence of and with the knowledge of officers Anthony and Sloss-Peck. Compl. at 5. Defendants' motion for summary judgment is based in large part on the claims that "medications would not be given to the inmate when an inmate is being returned to his housing unit from CTC" and that "[n]or would an inmate be allowed to keep medications while on suicide watch precaution." (Defs.' Mot. For Summ. J. (Doc. No. 102) at 2.) Moreover, in moving for summary judgment in their favor, defendants claim that they were not aware that plaintiff was given any medications and that they would not have allowed plaintiff to possess medications. Id.
Granted, in his motion for a Rule 56(f) continuance plaintiff does not detail exactly what he believes his former cellmate Burgess will attest to regarding this incident. Nonetheless, plaintiff certainly implies that Burgess was an eyewitness to the events at issue. It seems apparent that plaintiff expects that Burgess' testimony will support his version of the facts rather than that of defendants. In other words, plaintiff believes that Burgess will testify in a manner that supports his position that an officer gave plaintiff bottles of medication, and that defendants Anthony and Sloss-Peck were aware of ...