The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S RULE 56(f) MOTION WITHOUT PREJUDICE(Docket No. 100)
Plaintiff Matthew B. Cramer ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 6, 2010, Defendants Eric Heller ("Heller") and Clebo Wheatly ("Wheatly") filed a motion for summary judgment. (Doc. 92.) Heller and Wheatly assert that they are entitled to judgment as a matter of law because there are no genuine issues of material fact. (Doc. 92.)
On August 13, 2010, following Defendant Barrios' answer to Plaintiff's First Amended Complaint, the Court issued a Discovery Order opening discovery and setting discovery and pre-trial motion deadlines. (Doc. 118.)
On September 16, 2010, Defendant Barrios filed a motion for summary judgment asserting he is entitled to judgment as a matter of law because there are no genuine issues of material fact. (Doc. 127.) On January 24, 2011, Plaintiff filed an opposition to Defendant Barrios' motion for summary judgment (Doc. 140), to which Defendant Barrios replied on February 3, 2011 (Doc. 143).
A. Plaintiff's Contention That Defendants' Summary Judgment Motions Are Premature
1. Defendants Heller and Wheatly's Motion for Summary Judgment
In his opposition to Defendants Heller and Wheatly's motion for summary judgment, Plaintiff asserts that the motion is premature. (Doc. 100 at 6:3-5 ("In this instance, it seems to this plaintiff that the  moving party(ies) [sic] had prematurely submitted this motion for summary judgment."), 7:11-13 ("[P]laintiff has YET to be afforded any type of dis[covery] as a matter of [l]aw, and that in itself is [a] basis for defendants' [m]otion for summary judgment to be denied."), 16:9-11 ("Wherefore, Plaintiff contends that he has a right for discovery prior to summary judgment . . . .").)
As a result of the lack of discovery, Plaintiff asserts that Defendants are not yet aware of his current medical needs that have arisen due to the injury he received on March 3, 2008. (Doc. 100 at 12:14-20 ("This delay not only caused further injury, but this injury plaintiff [sic] has suffered with continual treatment, medical, vision issues, property loss, emotional, mental issues, and a host of other issues . . . . They have yet to view plaintiff's continual [m]edical needs at this or any other treatment.").) Plaintiff also points to evidence that he believes, if he were allowed to obtain through discovery, would defeat Defendants' motion for summary judgment including, missing video of the alleged assault, dental records, evidence that his glasses were broken during the assault, evidence of a mental condition following the assault, and continual treatment. (Doc. 100 at 7:14-18.) Plaintiff also complains that, although Defendant Wheatly filed a declaration in support of his motion for summary judgment stating that he, Wheatly, was not present at the Target store on the night of the alleged events (Doc. 96, ¶ 3), Plaintiff has been unable to conduct any discovery to determine which supervisor was actually present if Defendant Wheatly was not present (Doc. 100 at 16:24-27).
2. Defendant Barrios' Motion for Summary Judgment
With regard to Defendant Barrios, Plaintiff filed an opposition on January 24, 2011. (Doc. 140.) In his opposition, Plaintiff requests the following:
Plaintiff wants to point out with emphasis that Defendant Barrios's Motion to Summary [Judgment] mirrors Defendants' [sic] Wheatly and Heller['s] Motion for Summary [Judgment] which this Plaintiff fully responded and a copy x 2 was also served upon Defendant Barrios.
Plaintiff would request the Court note that the opposition to Wheatly's and Heller's Motion for Summary [Judgment] is indeed a mirror of opposition and the same exact opposition argument would apply. So Plaintiff would request the Court note and use the same ...