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Ochotorena v. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 19, 2010

RICHARD A. OCHOTORENA, PLAINTIFF,
v.
DARREL G. ADAMS, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S RULE 56(F) MOTION (Doc. 60)

Plaintiff Richard A. Ochotorena ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed November 30, 2005, against Defendants Rodriguez, Lane, Adams, Reynoso, Curtiss, Duncan, Fambrough, Kalkis, and Astorga. Defendants Rodriguez, Lane, Adams, Reynoso, Curtiss, Duncan, Fambrough, and Kalkis have appeared in this action.

The Defendants who have appeared filed a motion for summary judgment on April 3, 2009. In response, Plaintiff filed an opposition and a motion for the Court to "trail summary judgment pending resolution of discovery motions." (Doc. 60.) The Court treats this as a motion pursuant to Federal Rule of Civil Procedure 56(f).

Discovery has yet to be completed in this matter. Summary judgment is disfavored where, as here, relevant evidence remains to be discovered. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). Plaintiff does not support his motion with a declaration setting forth the facts he believes exist that are necessary to oppose Defendants' morion and will preclude summary judgment. Employers Teamsters Local Nos. 175 and 505 Pension Trust Fund v. Clorox Company, 353 F.3d 1125, 1129-30 (9th Cir. 2004) (citation omitted). However, Plaintiff is proceeding pro se, and has yet to have the opportunity to complete discovery in this action. It is clear that Plaintiff is seeking further discovery in order to supplement his opposition with facts relevant to Defendants' motion for summary judgment. Therefore, Plaintiff's motion will be granted. Upon the close of discovery, Plaintiff will have twenty-one (21) days within which to serve and file a supplemental opposition. Defendants will then have seven (7) days within while to serve and file a supplemental reply, if any.

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff's Rule 56(f) motion, filed May 14, 2009, is GRANTED; and

2. The Court will issue an order setting the deadlines for filing of any supplemental opposition and reply at the completion of discovery.

IT IS SO ORDERED.

20100319

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