The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO REOPEN DISCOVERY PURSUANT TO RULE 56 (Doc. 69.)
I. RELEVANT PROCEDURAL HISTORY
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by
Jawwaad Hasan ("Plaintiff"), a state prisoner proceeding pro se and in
forma pauperis. All parties to this action have voluntarily consented
to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §
636(c), and the case was assigned to the undersigned to conduct any
and all further proceedings in the case, including the trial and entry
of a final judgment. (Docs. 7, 14, 26.) This action now proceeds on
Plaintiff's original Complaint filed on March 17, 2008, against
defendant Correctional Officer B. Johnson ("Defendant") for use of
excessive force in violation of the Eighth Amendment.*fn1
(Doc. 1.) Discovery in this action was closed on December 1,
2011, and the deadline for filing pretrial dispositive motions has
expired. On May 15, 2012, Defendant filed a timely motion for summary
judgment, which is now pending. (Doc. 52.)
On August 10, 2012, Plaintiff filed a renewed motion to reopen discovery pursuant to Rule 56. (Doc. 69.) On October 1, 2012, Defendant filed an opposition to the motion. (Doc. 77 ¶V.)
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
Allegations in the Complaint The events at issue allegedly occurred at Corcoran State Prison ("CSP") in Corcoran, California, when Plaintiff was incarcerated there. Defendant Johnson was a correctional officer employed at CSP at the time of the events at issue.
Plaintiff alleges as follows in the Complaint. On March 22, 2006, Plaintiff was escorted to Administrative Segregation. Plaintiff was being placed in Administrative Segregation pending a disciplinary charge against him for threatening staff. (Compl., ¶12.) Plaintiff, in handcuffs, was escorted by Defendant Johnson and C/O Gonzalez. Id. Defendant Johnson, holding Plaintiff by the handcuffs, "without just cause, justification, provocation or good cause or reason, violently jerked the handcuffs, twisted them by the left side of the handcuffs, and thrusted plaintiffs' handcuffs upward thereby forcing plaintiff to walk on his toes." (Compl., ¶13.) Upon reaching the rotunda area, Defendant Johnson "grabbed plaintiff and violently propelled him across the rotunda slamming plaintiff into another wall, and continued to slam plaintiff into walls thereon opposite sides of the rotunda back and forth for several minutes. Plaintiff's head was slammed into the walls several times during this beating episode carried out by defendant Johnson." (Compl., ¶14.) Plaintiff seeks monetary damages as relief.
Eighth Amendment Excessive Force Claim
Plaintiff brings a claim against Defendant for use of excessive force in violation of the Eighth Amendment of the United States Constitution. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).
"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). "The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it." Id.
III. RENEWED MOTION TO REOPEN DISCOVERY - RULE 56
Pursuant to Federal Rule of Civil Procedure 56(d)(2), if Plaintiff shows by affidavit or declaration that for specified reasons he cannot present facts to oppose the motion for summary judgment, the Court may defer ruling on the motion to allow time for further discovery. In order to gain a continuance under Rule 56(d), Plaintiff must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. Tatum v. City and County of Sacramento, 441 F.3d 1090, 1100 (9th Cir. 2006); Tuvalu v. Woodford, No. CIV S-04-1724 RRB KJM P, 2007 WL 2900175, at 1-4 (E.D. Cal. Sept. 28, 2007). A court is within its discretion to deny such a request when the party seeking the continuance has not diligently pursued discovery previously. Qualls v. Blue Cross of California, 22 F.3d 839, 844 (9th Cir.1994).
Plaintiff previously filed a motion to reopen discovery on May 31, 2012. (Doc. 57.) Because Plaintiff failed to provide the declaration or affidavit required by Rule 56(d), the Court denied the motion without prejudice to renewal of the motion within thirty days, "submit[ting]an affidavit or declaration identifying the specific facts that further discovery would reveal, explaining why those facts would preclude summary judgment, discussing his diligence in pursuing discovery previously, and describing his efforts to obtain permission from prison officials to communicate with his witnesses." (Order, Doc. 62 at 4:19-22.) Plaintiff now renews the motion, requesting that the Court ...