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Leer v. Goulart

United States District Court, N.D. California

April 22, 2015

RIKKI T. LEER, Plaintiff,
v.
SAN MATEO COUNTY SHERIFF'S DEPUTY J. GOULART, Defendant.

ORDER DENYING PLAINTIFF'S RULE 56(D) MOTION; AND GRANTING HIS REQUEST FOR A SECOND EXTENSION OF TIME TO FILE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DONNA M. RYU, Magistrate Judge.

Plaintiff filed the instant pro se civil rights action pursuant to 42 U.S.C. ยง 1983. Both parties have consented to magistrate judge jurisdiction, and this matter has been assigned to the undersigned Magistrate Judge.

Pending before the court are Defendant's Motion for Summary Judgment, as well as Plaintiff's "Application for Extension of Time to File Rule 56(f) [Motion], " which is construed as a motion for an order pursuant to Rule 56(d) for an extension of time to oppose Defendant's Motion for Summary Judgment. Dkts. 16, 21.

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.[1] See Garrett v. City & Cnty. of 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 Rule 56(d) motion requires the moving party to 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., on Behalf of Cal. Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). A proper Rule 56(d) motion must contain more than a list of desired documents; it must specify what particular facts those requested documents will reveal if obtained and why those facts are necessary to oppose the summary judgment motion effectively.

Here, Plaintiff's Rule 56(d) motion is not well-taken. First, Plaintiff claims he needs a continuance to "write witnesses and/or write to prisoners in CDCR." Dkt. 21 at 1. However, Plaintiff has not stated what facts such interviews-with unnamed witnesses/prisoners-will reveal and why those facts are necessary to avoid summary judgment in this case. Furthermore, Plaintiff claims he has also filed a " Pitchess Motion, "[2] presumably in state superior court, in an effort to "gather[] corroborating facts that [Defendant] J. Goulart has had excessive force [complaints], within his internal affairs file and Citizen's complaints." Id. at 2. The Court finds that any such discovery would be futile in opposing Defendant's motion for summary judgment. A party cannot oppose a summary judgment motion with inadmissible evidence. See e.g., Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988) (district court erred in considering hearsay in ruling on summary judgment motion); Fed.R.Civ.P. 56(e). Evidence of past wrongs to show action in conformity therewith, as Plaintiff seeks to establish in this case, is inadmissible. Fed.R.Evid. 404. Plaintiff does not state how any such complaints against Defendant could potentially reveal facts relevant to the determination of the instant pending motion for summary judgment. Although Plaintiff is free to request this information in discovery from Defendant, Plaintiff's discovery requests are limited to relevant information under Federal Rule of Civil Procedure 26. Accordingly, Plaintiff's Rule 56(d) motion is DENIED.

In any event, Plaintiff also requests a second extension of time in which to file his opposition to Defendant's Motion for Summary Judgment up to and including May 15, 2015. Having read and considered Plaintiff's request, and good cause appearing,

IT IS HEREBY ORDERED that Plaintiff's request for a second extension of time is GRANTED. The time in which Plaintiff may file his opposition to Defendant's Motion for Summary Judgment will be extended up to and including May 15, 2015.

Defendant shall file a reply brief no later than fourteen (14) days after the date Plaintiff's opposition is filed.

This Order terminates Docket No. 17.

IT IS SO ORDERED.


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