The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
ORDER GRANTING MOTION TO COMPEL AND MOTION FOR EXTENSION OF TIME
BEFORE THE COURT are Plaintiff's Motion to Compel Discovery (ECF No. 85) filed October 28, 2011 and Plaintiff's Motion for Extension of Time (ECF No. 89) filed November 10, 2011. Defendants have not responded to these motions.
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. The cognizable claims set forth Plaintiff's First Amended Complaint which remain are:
1. Excessive force/bystander liability against Defendants Mitchell, Rigney, and Whitlow resulting from incidents occurring on April 22, 2008 and April 27, 2008;
2. Failure to protect against Defendants Felker and Cate; and 3. Retaliation against Defendant McGuire.
The deadline for all discovery and the filing of motions to compel was October 1, 2011. Defendants filed a Motion for Summary Judgment (ECF No. 84) on October 31, 2011, which seeks dismissal of all the remaining claims on the merits. Plaintiff's response is currently due November 25, 2011. Plaintiff has been advised by the court and defense counsel of the requirements when opposing a motion for summary judgment.
Though Plaintiff's motions only request time for additional discovery, the court assumes Plaintiff also desire additional time to respond to the summary judgment motion. A litigant who wishes additional facts to oppose a summary judgment motion may request to do so under Rule 56 (d) (formerly Rule 56(f)), which provides: "If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order."
Fed.R.Civ.P. 56(d). Typically, when the parties have no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary judgment motion is likely to be an abuse of discretion.
Plaintiff's untimely Motion to Compel (filed just days before the filing of the Motion for Summary Judgment) indicates that at the time he filed his Motion, he had not yet received responses to his interrogatories from Defendants. Plaintiff claims to have served them on September 26 and September 27, 2011, less than the required forty-five days prior to the October 1, 2011 discovery deadline. ECF No. 73 at 1-2. As no response to either the Motion to Compel or Motion for ...