Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on plaintiff's first amended complaint, filed October 8, 2010. Plaintiff claims that his rights under the Eighth Amendment were violated by deliberate indifference to his health and safety. This matter is before the court on plaintiff's motion pursuant to Fed. R. Civ. P. 56(d) to postpone consideration of defendants' pending motion for summary judgment until completion of discovery in this action. Plaintiff seeks postponement on the ground that there are several discovery matters still pending, including a motion to compel filed by plaintiff on December 13, 2011, two depositions by written questions, and three sets of interrogatories served by plaintiff on December 28, 2011. Defendants have not responded to plaintiff's motion.
Concurrently with this order, the court has resolved plaintiff's December 13, 2011 motion to compel. Resolution of that motion requires production by defendants of additional information with a ten day period set in that order.
By order filed October 4, 2011, plaintiff was granted leave to depose by written questions inmates William Sylvester and Sergio Soto. In his Rule 56(d) request, plaintiff states that he filed the proposed questions for these two inmates on October 26, 2011. The record in this action does not reflect the filing of those questions. Good cause appearing, plaintiff will be granted ten days from the date of this order to file proof that he timely mailed those proposed questions to the court. In the same ten day period, plaintiff shall inform the court whether he has received responses to the interrogatories that he represents were served on defendants on or about December 28, 2011.
In view of the foregoing, and good cause appearing, plaintiff's Rule 56(d) request will be granted. The court will set a briefing schedule for defendants' February 17, 2012 motion for summary judgment by subsequent order.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's March 7, 2012 Rule 56(d) motion is granted.
2. Plaintiff is granted ten days from the date of this order to file proof that he timely mailed proposed deposition questions to the court pursuant to the court's October 4, 2011 order. Failure to comply with this order will result in the denial of his previously granted request to depose inmates Sylvester and Soto by written questions.
3. Within ten days from the date of this order plaintiff shall inform the court in writing whether he has been served with responses to his December 28, 2011 interrogatories.
4. The court will set a briefing schedule for defendants' February 17, 2012 motion for summary judgment by subsequent order.
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