ORDER ON PLAINTIFF'S RULE 56(d) MOTION (Doc. No. 91)
This is a civil rights lawsuits that stems from an encounter between Plaintiff Anthony Slama ("Slama") and two police officers of the Madera Police Department. *fn1 This Court previously granted summary judgment in favor of Defendants and closed the case.
On September 12, 2011, the Court adopted the Magistrate Judge's Findings and Recommendation, and granted Plaintiff's Rule 60 motion to vacate and reopen. The summary judgment orders were vacated and this case was reinstated on the grounds that Plaintiff's attorney essentially had abandoned him. The Court gave Slama sixty days in which to file oppositions to the summary judgment motions.
Slama was granted an extension of time and given until January 13, 2012, in which to file oppositions. Slama was then granted until February 27, 2012, in which to file either an opposition or a Rule 56(d) motion.
On February 29, 2012, Slama filed a Rule 56(d) motion. On March 22, 2012, the Defendants filed an opposition.
Plaintiff's Arguments Slama argues that additional discovery is appropriate under Rule 56(d). Slama identifies the following areas about which he seeks further discovery: (1) he was familiar with the area where he was stopped by the officers, and was not in the shadows; (2) the reasons why the officers approached Slama; *fn2 (3) why the defendants filed three motions, yet omitted key information (apparently about a lunch pail); (4) additional interactions that Slama had with non-defendant police officers in which he invoked his Fourth Amendment rights and protections; (5) obtaining the declarations of Andrew Slama, Connie Kincade, Mary Slama, and Chris Berra; *fn3 (6) the excessive force used (tasing while handcuffed and a choke hold); (7) the authenticity of several photos produced by defendants; and (8) additional cases/complaints, including the 2 or 3 cases mentioned in Sheklanian's deposition, of instances of excessive force for Monell purposes.
Defendants argue that granting relief under Rule 56(d) is not justified. In general, discovery is not proper because Slama already has depositions, can submit declarations, or fails to adequately identify what information would be obtained and how that information would defeat summary judgment. Also, with respect to the Monell claims, Slama relies on several potential excessive force cases. However, Slama does not have the expertise to evaluate any additional cases with respect to the merits of those cases. Finally, as part of his motion for reconsideration/Rule 60, Slama represented that he could show that Defendants are not entitled to summary judgment and that "[t]here is opposing papers in plaintiff's possession that can overcome this proposition."
Rule of Civil Procedure 56(d) provides "a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence." United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). Rule 56(d) reads:
(d) When Facts Are Unavailable to the Non-movant. If a non-movant shows by affidavit or declaration that, for sepcified 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 ...