United States District Court, E.D. California
DALE A. DROZD, District Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action. Pending before the court are several of motions brought by plaintiff, which the court will address in turn.
Plaintiff is proceeding on an amended complaint against defendant Medina based upon the defendant's alleged failure to provide plaintiff with adequate medical care. Specifically, plaintiff alleges that while he was incarcerated at High Desert State Prison ("HDSP"), correctional officers engaged in excessive use of force against him, and defendant Medina failed to provide him with adequate medical care after that use of force incident. According to plaintiff, defendant Medina falsely reported that plaintiff refused medical care. Plaintiff further alleges that he was transferred to California State Prison, Corcoran, but upon his return to HDSP defendant Medina took him off of his prescribed pain medication for no reason. (Am. Compl. Attach. at 2.)
First, in response to defendant Medina's pending motion for summary judgment, plaintiff has filed two motions for relief pursuant to Federal Rule of Civil Procedure 56(d). In those motions, plaintiff contends that the court should allow him to conduct additional discovery in order to oppose defendant's summary judgment motion. He explains that he previously requested from the defendant certain documents, including his medical records and previously-filed inmate appeals concerning the defendant's conduct. According to plaintiff, however, the defendant failed to produce the requested documents. Instead, defense counsel told plaintiff that he could obtain any responsive documents from his Unit Health Care Record, which would be made available upon his request pursuant to normal institutional procedures. Plaintiff maintains that the court should require the defendant to produce the requested documents and notes that he has tried to obtain certain documents from CDCR staff but has been unable to do so. (Pl'.s Mot. Pursuant to Rule 56(d) at 1-2 & Exs. A & B (Doc. No. 134) & Pl.'s Mot. Pursuant to Rule 56(d) at 1-4 & Exs. K & M (Doc. No. 145)).
To obtain relief under Rule 56(d), the moving party must show:
(1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are "essential" to resist the summary judgment motion.
State of Cal. v. Campbell , 138 F.3d 772, 779 (9th Cir. 1998). Failure to comply with the rule's requirements "is a proper ground for denying discovery and proceeding to summary judgment." Id . See also Volk v. D.A. Davidson & Co. , 816 F.2d 1406, 1416 (9th Cir. 1987) ("The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists."); Hancock v. Montgomery Ward Long Term Disability Trust , 787 F.2d 1302, 1306 n. 1 (9th Cir.1986) (party opposing summary judgment "has the burden under Rule 56[d] to show what facts [he] hopes to discover to raise an issue of material fact.").
Here, plaintiff's motions fall short of making the requisite showing that he is entitled to relief under Rule 56(d). In particular, plaintiff has not explained what specific facts he hopes to discover and why these facts would preclude summary judgment in the defendant's favor. See Harris v. Duty Free Shoppers Ltd. P'ship , 940 F.2d 1272, 1276 (9th Cir.1991); Carpenter v. Universal Star Shipping, S.A. , 924 F.2d 1539, 1547 (9th Cir.1991).
Moreover, "[t]he district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past." Conkle v. Jeong , 73 F.3d 909, 914 (9th Cir. 1995). See also Nidds v. Schindler Elevator Corp. , 113 F.3d 912, 921 (9th Cir. 1997) (a party's failure to diligently pursue discovery in the past is sufficient reason for the court to deny further discovery). In his pending motions for relief under Rule 56(d), plaintiff broadly complains about defendant's conduct during discovery because he believes that defense counsel was required to turn over the documents plaintiff had requested. However, if plaintiff experienced difficulty obtaining responsive documents from the defendant after serving him with proper discovery requests, plaintiff needed to file a motion to compel during the five-month period allotted for discovery in this case. Plaintiff did not do so. Instead, as the court observed in its July 29, 2014 order, plaintiff only recently tried to file two motions to compel almost six months after the discovery deadline had passed in this case, demonstrating a lack of diligence on his part.
Finally, the court notes that it has conducted a cursory review of defendant's responses to plaintiff's discovery requests, and the defendant's responses appear adequate. Defense counsel is correct that the defendant is only required to produce documents that are in his "possession, custody or control." Fed.R.Civ.P. 34(a). "Control is defined as the legal right to obtain documents upon demand." United States v. Int'l Union of Petroleum & Indus. Workers , 870 F.2d 1450, 1452 (9th Cir. 1989). Plaintiff has not explained why he believes defendant Herrera, who is no longer employed at HDSP or any California prison, has control of plaintiff's medical records or the previously-filed inmate appeals plaintiff now seeks.
For all the foregoing reasons, the court will deny plaintiff's Rule 56(d) motions. In the interest of justice, the court will grant plaintiff a final sixty days to file an opposition to defendant's motion for summary judgment. This is more than adequate time in the court's view for plaintiff to prepare and file an opposition in support of his single medical care claim against defendant Medina. During this final sixty days, plaintiff may utilize the available prison procedures to access his own medical records and previously-filed inmate appeals if he so desires. In addition, plaintiff may draft his own declaration signed under penalty of perjury explaining the material facts he believes preclude summary judgment in defendant's favor. The court strongly cautions plaintiff that this court will not further delay consideration of the defendant's motion for summary judgment. Furthermore, if plaintiff fails to file an opposition to the pending motion for summary judgment as ordered, his failure may be deemed a statement of non-opposition and result in a recommendation that defendant's motion for summary judgment be granted.
Also pending before the court are plaintiff's two motions for appointment of counsel and a motion for appointment of an expert. As to plaintiff's motions for appointment of counsel, as the court previously advised plaintiff, the United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court , 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 ...