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Tony L. Burns v. Ofcr Kevin Barreto

March 30, 2012

TONY L. BURNS, PLAINTIFF,
v.
OFCR KEVIN BARRETO;
OFCR MARK SIMONSON OF THE BENICIA POLICE DEPT, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On February 23, 2012, plaintiff filed an ex parte request (Dkt. No. 47) seeking an extension of time in which to oppose defendants' motion for summary judgment.*fn1 Defendants' motion for summary judgment was previously set for a hearing to take place on March 15, 2012 (Minute Order, Feb. 10, 2012, Dkt. No. 48), and, as a result, plaintiff's opposition to the motion or statement of non-opposition was due on or before March 1, 2012.*fn2 See E. Dist. Local Rule 230(c). Plaintiff timely sought an extension of time or continuance of the hearing date and briefing schedule pursuant to Federal Rule of Civil Procedure 56(d),*fn3 so that he could obtain and review documents he claimed he needed to oppose defendants' motion for summary judgment. Defendants filed a lengthy opposition to plaintiff's ex parte request (Dkt. No. 51).

On February 29, 2012, the undersigned found that plaintiff's ex parte request was procedurally and substantively deficient under the applicable standard. (See Order, Feb. 29, 2012, Dkt. No. 52.) As noted in the February 29, 2012 order, Rule 56(d) permits a party opposing a motion for summary judgment to request an order deferring the time to respond to the motion and permitting that party to conduct additional discovery upon an adequate factual showing. Specifically, Rule 56(d) provides:

When Facts Are Unavailable to the Non-movant. 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). Interpreting previously numbered Rule 56(f), the Ninth Circuit Court of Appeals stated that "[t]o prevail under this Rule, parties opposing a motion for summary judgment must make (a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, the "burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Id. (citation and quotation marks omitted). Plaintiff had neither filed the appropriate affidavit, nor made the showing required under Rule 56(d) and the relevant case law. Nevertheless, the undersigned granted plaintiff leave to file an affidavit that attempted to make an appropriate showing under Rule 56(d), and also permitted defendants to respond to plaintiff's affidavit. (Order, Feb. 29, 2012, at 3.) The undersigned vacated the hearing date and briefing scheduling concerning defendants' motion for summary judgment.

On March 8, 2012, plaintiff filed an affidavit ("Affidavit") in support of his Rule 56(d) motion (Dkt. No. 53). Plaintiff's Affidavit begins by generally describing the nature of the items or facts plaintiff believes he needs to oppose the motion for summary judgment: "The items or facts needed to show, what is public and what is private property, what it is to have proable [sic] cause or no proable [sic] cause at all, what it is to have a warrant to search or no warrant, no consent no search. Also the use of verbal and physical coercion by the defendants." (Pl.'s Aff. at 1-2.) The Affidavit then lists five categories of documents or information sought, which are summarized as follows:

* A February 8, 2010 "incident report" concerning a traffic accident where defendants responded to the call, which plaintiff asserts will show that defendants knew "the difference between public private property" relative to the June 28, 2008 incident that underlies this action.*fn4

* Photographs showing the relationship between private and public property where the June 28, 2008 incident took place.

* Documents from "Main Gate Homeowners," again relating to the boundary between private and public property at the scene of the June 28, 2008 incident.

* "Documents on" consent, coercion, and warrantless searches that "plaintiff will need to generate."

* "[M]ore information from the Vallejo courts that will show plaintiff never committed or was ever cited for any vehicle violation, and the fact it doesnt [sic] exist." (See id. at 2-3.) Defendants filed a response in opposition to plaintiff's Affidavit ...


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