ORDER DENYING MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE, DENYING MOTION TO COMPEL, SETTING DISCOVERY AND BRIEFING SCHEDULES AND DIRECTING ALL PARTIES TO CONSENT OR DECLINE TO PROCEED BEFORE MAGISTRATE JUDGE FOR ALL FURTHER PROCEEDINGS (Docket nos. 12, 33)
CLAUDIA WILKEN, District Judge.
Plaintiff, a state prisoner incarcerated at Pelican Bay State Prison, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, complaining about his conditions of confinement during the period of his incarceration as a pretrial detainee at the Santa Rita County Jail (SRCJ). Specifically, Plaintiff alleges (1) that from June 17, 2008 through December 13, 2010, Defendants held him in disciplinary lock-up without disciplinary charges or a hearing, and did not provide him with cleaning materials for his cell or with the requisite minimum of three hours of exercise a week, and (2) from March 2009 through December 2010, he routinely went for more than seventy-two hours without a shower. Plaintiff claims Defendants placed him in such adverse conditions of confinement not because of his conduct but, instead, in retaliation and at the request of the District Attorney. He claims the violation of his right to due process and that Defendants acted with deliberate indifference.
I. Summary Judgment
On October 5, 2012, Defendants filed a motion for summary judgment. Thereafter, Plaintiff moved for a stay of further proceedings because he was scheduled to be transferred to another prison. On November 20, 2012, the Court denied the stay but granted Plaintiff an extension of time to January 4, 2013, to file his opposition to the motion for summary judgment. On January 9, 2013, the Court received Plaintiff's opposition, in which he wrote that he had been transferred to Pelican Bay State Prison and had not yet received his legal property. He objected to several alleged factually inaccurate statements made by Defendants in support of their motion for summary judgment.
Defendants filed a reply and an objection to Plaintiff's factual assertions, arguing that they are inadmissible hearsay and improper opinion evidence. Plaintiff then filed a sur-reply and a motion to compel discovery. Defendants opposed the motion on the grounds that discovery has not yet opened in the case because there has been no case management conference order, Plaintiff has not made any formal discovery request and he has not attempted to meet and confer. Plaintiff responded that he sent Defendants requests for production of documents, to which they did not respond.
In the order of service in this case, the Court wrote: "Discovery may be taken in this action in accordance with the Federal Rules of Civil Procedure. Leave of the Court pursuant to Rule 30(a) (2) is hereby granted to Defendants to depose Plaintiff and any other necessary witnesses confined in prison." Docket no. 4 at 6:9-12. Consequently, no case management conference order is required and Plaintiff's discovery requests cannot be objected to on that ground.
Rule 56(d) of the Federal Rules of Civil Procedure provides a procedure by which a party may avoid summary judgment when such party has not had sufficient opportunity to discover affirmative evidence necessary to oppose the motion. See Garrett v. San Francisco , 818 F.2d 1515, 1518 (9th Cir. 1987). In particular, Rule 56(d) provides that a court may deny a summary judgment motion and permit the opposing party to conduct discovery where it appears that the opposing party, in the absence of such discovery, is unable to present facts essential to opposing the motion. Fed.R.Civ.P. 56(d). A pending discovery motion is sufficient to raise a question as to whether the party opposing summary judgment should be permitted additional discovery, even if no request under Rule 56(d) has been made. See Garrett , 818 F.2d at 1518.
The Ninth Circuit has made clear that in cases involving pro se prisoners, summary judgment is not favored when discovery requests for relevant evidence are pending. In particular, the Ninth Circuit has noted:
Under Rule 56(f), the court may postpone ruling on a summary judgment motion where the nonmoving party needs "additional discovery to explore facts essential to justify the party's apposition.'" Crawford-El v. Britton , 523 U.S. 574, 599 n.20 (1998) (quoting Fed. R. Civ. Pro. 56(f)). Though the conduct of discovery is generally left to a district court's discretion, summary judgment is disfavored where relevant evidence remains to be discovered, particularly in rases involving confined pro se plaintiffs. Klingele v. Eikenberry , 849 F.2d 409, 412 (9th 2ir. 1988); Harris v. Pate , 440 F.2d 315, 318 (7th Cir. 1971) (Stevens, J.) (observing that the combined disabilities of self-representation and confinement hinder a plaintiff's ability to gather evidence). Thus summary judgment in the face of requests for additional discovery is appropriate only where such discovery would be "fruitless" with respect to the proof of a viable claim. Klingele , 849 F.2d at 412.
Jones v. Blanas , 393 F.3d 918, 930 (9th Cir. 2004) (parallel citations omitted).
Here, Defendants have filed a motion for summary judgment and have objected to Plaintiff's evidence in opposition thereto as inadmissible hearsay and improper opinion evidence. The parties, however, have not conducted any discovery; consequently, Plaintiff has not been able to obtain evidence from Defendants that may be relevant to opposing their motion and proving his claims. Under such circumstances, the Court finds it proper to allow Plaintiff to conduct discovery before opposing Defendants' motion for summary judgment.
Accordingly, Defendants' motion for summary judgment is DENIED without prejudice to them filing a renewed motion for summary judgment after the parties have conducted discovery. See Fed.R.Civ.P. 56(d)(1). Plaintiff's motion to compel is DENIED without prejudice as premature.
The parties shall comply with the discovery and briefing schedules set forth in the ...