The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
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 complaint filed in March 2009 which specifically claims that defendants M. Wright, R. Haynes and D. Sisson used excessive force against plaintiff in violation of the Eighth Amendment to the United States Constitution during the course of a cell extraction occurring on September 17, 2008. Presently pending before the court are defendants' motion for summary judgment (see Dkt. No. 51.), plaintiff's motion to compel (see Dkt. No. 59.) and plaintiff's motion to stay the motion for summary judgment. (See Dkt. No. 60.) For the followings reasons, plaintiff's motion to compel and motion to stay the motion for summary judgment will be denied and it is recommended that defendants' motion for summary judgment be granted.
I. MOTION TO COMPEL & MOTION TO STAY MOTION FOR SUMMARY JUDGMENT
A discovery and scheduling order was set in this case in February 2011 after defendants filed their answer. The parties were given until June 10, 2011 to conduct discovery and to file any necessary motions to compel by that date. All pretrial motions (except motions to compel discovery which were due by June 10, 2011) were due by September 2, 2011. (See Dkt. No. 35.)
On June 2, 2011, plaintiff filed a "motion for extension of time to conduct discovery; receive the response to interrogatories as well as response from defendants to produce documents." (See Dkt. No. 40.) On August 8, 2011, the undersigned construed the June 2, 2011 motion as a motion to compel and the motion was granted. (See Dkt. No. 45.) Defendants were then given thirty days to serve their answers to plaintiff's discovery requests. The scheduling order was also amended giving the parties until October 21, 2011 to file all pretrial motions. (See id.) Defendants then sought and received an extension of time to complete and serve their discovery responses until September 19, 2011. (See Dkt. Nos. 46 & 47.)
Defendants then received an extension of time to file a dispositive motion until November 4, 2011. (See Dkt. Nos. 49 & 50.) Thereafter, defendants filed their motion for summary judgment on November 4, 2011. Plaintiff requested an extension of time to file a response to the motion to summary judgment. (See Dkt. No. 53.) Plaintiff's request was granted and he was given until January 18, 2012 to file an opposition to the motion for summary judgment. (See Dkt. No. 54.) After no opposition was filed by that date, plaintiff was ordered to file an opposition within thirty days of January 31, 2012. (See Dkt. No. 56.) Subsequently, in March 2012, plaintiff filed his opposition to defendants' motion for summary judgment. Defendants filed a reply to plaintiff's opposition on March 19, 2012.
On April 13, 2012, plaintiff's motion to compel and motion to stay the summary judgment motion were entered on the docket. (See Dkt. Nos. 59 & 60.) Each document had a certificate of service of January 1, 2012 and January 19, 2012 respectively. (See Dkt. No. 59 at p. 20 & Dkt. No. 60 at p. 4.) Pursuant to the prisoner mailbox rule, these documents are deemed to have been filed on January 1, 2012 and January 19, 2012 respectively. See Houston v. Lack, 487 U.S. 266, 276 (1988). Defendants filed oppositions to the motion to compel and the motion to stay the motion for summary judgment. (See Dkt. No. 61.)
As the procedural history indicates, the discovery deadline for filing a motion to compel had long since expired even after applying the requisite prisoner mailbox rule to plaintiff's motion to compel. The initial deadline of June 10, 2011 was extended until September 19, 2011 with all other pretrial motions eventually extended and due by November 4, 2011. (See Dkt. Nos 47 & 50.) Plaintiff admits receipt of defendants' responses to his discovery requests on September 22 or 23, 2011. (See Dkt. No. 59 at p. 2.) Accordingly, plaintiff's motion to compel was filed over three months after the discovery deadline (and over three months after he received defendants' responses to his discovery requests) and almost two months after dispositive motions were due. Plaintiff does not explain his inability to file the motion to compel within the applicable discovery deadline or even before dispositive motions were due. Accordingly, the motion to compel is untimely and will be denied.
Additionally, even if not untimely, the motion to compel would be denied as plaintiff's motion to compel suffers from procedural defects. Plaintiff alludes to various objections made by the defendants in their responses to his discovery requests but he does not attach a copy of defendants' responses to his motion to compel. Furthermore, his objections in his motion to compel are general and overarching. It is impossible to decipher exactly which discovery requests the court should compel defendants to answer. While recognizing that plaintiff is proceeding pro se, "the moving party must bear the burden of informing the Court of which discovery requests are the subject of the motion to compel, which of the responses are disputed, why the responses are deficient, why the objections are not justified, and why the information sought is relevant to the prosecution of this case." Robinson v. Adams, Civ. No. 08-1380, 2010 WL 1948252, at *2 (E.D. Cal. May 11, 2010) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (moving party bears the burden of showing that denial of discovery results in actual and substantial prejudice)) (other citations omitted). Plaintiff's motion to compel does not meet these requirements and will be denied.
Plaintiff's motion to stay the motion for summary judgment under Federal Rule of Civil Procedure 56(d) argues that there are facts that are unavailable to him as stated in the motion to compel. (See Dkt. No. 60 at p. 2.) Federal Rule of Civil Procedure 56(d) provides that, "[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."
Courts "have wide latitude in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of discretion." Cal. Ex. rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). In reviewing the motion, the moving party must show: "(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment." Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 825, 827 (9th Cir. 2008). "Failure to comply with these requirements is a proper ground for denying discovery and proceeding to summary judgment." Id. (internal quotation marks and citations omitted). As granting the motion to stay the motion for summary judgment would amount to reopening discovery, the court should also examine whether the "movant diligently pursued its previous discovery opportunities and if the movant can show how allowing additional discovery would have precluded summary judgment." Panatronic USA v. AT & T Corp., 287 F.3d 840, 846 (9th Cir. 2002). In this case, as outlined above, plaintiff did not diligently pursue his previous discovery opportunities. The motion to compel which forms the basis of plaintiff's Rule 56(d) motion was filed over three months after the close of discovery and almost two months after defendants filed their dispositive motion. Accordingly, plaintiff did not diligently pursue previous discovery opportunities. Therefore, the motion to stay the motion for summary judgment will be denied.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See FED. R. CIV. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 ...