The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S RULE 56(D) MOTION AND GRANTING DEFENDANTS' MOTION TO STAY DISCOVERY (Docs. 42 and 50) ORDER OVERRULING OBJECTIONS, DISREGARDING REPLY AND EVIDENTIARY OBJECTIONS, GRANTING DEFENDANTS' REQUEST FOR THIRTY DAYS WITHIN WHICH TO FILE A REPLY, AND DENYING PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME AS MOOT (Docs. 54, 55, 60, and 62)
Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2009. This action is proceeding against Defendants Palmer, Rivera, and Lopez on Plaintiff's Eighth Amendment excessive force claim. Pending before the Court are several issues relating to Defendants' motions for summary judgment and to stay discovery, and Plaintiff's motion to defer consideration of the motion for summary judgment pending further discovery, summarized as follows.
On August 30, 2011, Defendants filed a motion for summary judgment, and on August 31, 2011, Defendants filed a motion seeking a stay of discovery pending resolution of their motion for summary judgment or, if denied, a thirty-day extension of time to respond to Plaintiff's discovery requests. On September 2, 2011, the Court partially granted Defendants' motion and stayed discovery pending Plaintiff's responses to the motions to stay and for summary judgment.
On September 9, 2011, prior to receipt of the September 2 order, Plaintiff filed (1) a motion seeking re-service of the motion for summary judgment and for sanctions and (2) a motion to compel and for sanctions. On September 19, 2011, the Court granted Plaintiff's motion for re-service, denied Plaintiff's motions to compel and for sanctions, and ordered Plaintiff to comply with the September 2 order within forty-five days. The same day, following electronic service of the order, Defendants filed a proof of re-service of their motion for summary judgment.
On September 23, 2011, Defendants filed a motion seeking an extension of time to file a reply, which the Court granted on September 27, 2011.
On September 30, 2011, Defendants filed evidentiary objections, and an opposition and a reply to Plaintiff's September 16 filing, which they construed as both a Rule 56(d) motion and an opposition to their motion for summary judgment. Plaintiff filed objections to Defendants' reply on October 6, 2011, and a response to their evidentiary objections.
On October 17, 2011, Plaintiff filed a motion seeking an extension of time to file his opposition to Defendants' motion for summary judgment, and on October 18, 2011, Plaintiff filed an opposition to the motion. Defendants filed objections to the opposition on October 24, 2011, and Plaintiff filed a response to their objections on November 7, 2011.
Turning first to Plaintiff's Rule 56(d) motion, "[i]f 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). Plaintiff bears the burden of specifically identifying relevant information, where there is some basis for believing that the information actually exists, and demonstrating that the evidence sought actually exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006).
The discovery phase of this litigation commenced on June 28, 2011, and Defendants filed a motion for summary judgment on August 30, 2011. Defendants argue that (1) Plaintiff's excessive force claim is barred by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997) and Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), because Plaintiff lost time credits and a finding in his favor would bring into question the length of his sentence, (2) the force used was reasonable under the circumstances, and (3) they are entitled to qualified immunity.
Plaintiff contends very generally that Defendants are delaying his receipt of discovery and he needs the responses to oppose their motion for summary judgment. Plaintiff also argues that he is seeking complaints filed against Defendant Palmer because he believes Palmer previously used excessive force against inmates, and he is seeking documentation or information regarding the employment-related consequences Defendants suffered following the incident.
Regarding the loss of time credits, Plaintiff has made no showing that he needs specific discovery to respond to this argument, and the Court notes that in his opposition, Plaintiff argues that he is serving a sentence life without the possibility of parole and he lost behavior/work credits, not time credits.*fn1 It is unclear what other information exists, is obtainable only through discovery, and, critically, is necessary to oppose the motion on this ground.
Regarding the other issues, this is an excessive force case and the issue is whether the force at issue was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995 (1992) (quotation marks omitted). The Court may not, on summary judgment, weigh the evidence or assess the credibility of witnesses, Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1035-36 (9th Cir. 2005), and to defeat judgment, Plaintiff need only show ...