United States District Court, E.D. California
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR
EXTENSION OF TIME; AND (2) DENYING PLAINTIFF'S MOTION
REQUESTING MORE TIME FOR DISCOVERY (ECF Nos. 29, 30)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. This matter proceeds on Plaintiff's original
complaint against Defendant Nurse A. Manasrah on an Eighth
Amendment medical indifference claim.
February 7, 2017, Defendant filed a motion for summary
judgment. Plaintiff now moves for an extension of time to
file an opposition to Defendant's motion. (ECF No. 29.)
He also moves for additional time to conduct discovery
pursuant to Federal Rule of Civil Procedure
“56(f).” (ECF No. 30.) The Court construes this
latter motion as one brought pursuant to Rule
56(d) ‘provides a device for litigants to avoid summary
judgment when they have not had sufficient time to develop
affirmative evidence.'” Atigeo LLC v. Offshore
Ltd., 2014 WL 1494062, at *3 (W.D. Wash. Apr. 16, 2014)
(quoting United States v. Kitsap Physicians Serv.,
314 F.3d 995, 1000 (9th Cir. 2002)). Federal Rule of Civil
Procedure 56(d) provides, “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may” defer considering the motion, deny the
motion, allow time to obtain affidavits or declarations to
take discovery, or “issue any other appropriate
order.” Fed.R.Civ.P. 56(d). Rule 56(d) requires the
nonmovant to show “(1) it has set forth in affidavit
form 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 822, 827 (9th Cir.
2008) (holding that the district court did not abuse its
discretion in denying a continuance where the facts sought
through further discovery were only “generically
relevant” and the nonmoving party failed to show how
the evidence was “essential” to oppose summary
judgment). The party requesting a continuance must explain
how the specific facts that it seeks would preclude summary
judgment. Tatum v. City & Cty. of S.F., 441 F.3d
1090, 1100-01 (9th Cir. 2006) (citing California v.
Campbell, 138 F.3d 772, 779 (9th Cir.
1998)). The Ninth Circuit's general rule is
that “[a] continuance of a motion for summary judgment
for purposes of discovery should be granted almost as a
matter of course unless the non-moving party has not
diligently pursued discovery of the evidence.”
Atigeo, 2014 WL 1494062, at *3.
proffers two reasons in support of his motion to conduct
additional discovery to oppose Defendant's motion for
summary judgment. First, he claims that additional time is
needed because he is proceeding in pro per and only recently
learned what an interrogatory was. Next, he claims that he
now “sees that he has a lot of work to do in the
preparation of his Opposition Motion, ” including
researching applicable law and gathering evidence.
review, the undersigned concludes that Plaintiff is not
entitled to relief under Rule 56(d). His motion is not
accompanied by an affidavit setting forth the specific facts
he hopes to elicit from discovery, and he fails to explain
how the sought-after facts are essential to oppose summary
judgment. As for Plaintiff's pro per status, it is true
that the Ninth Circuit has repeatedly cautioned that pro se
litigants must be treated with liberality. See,
e.g., Waters v. Young, 100 F.3d 1437, 1441 (9th
Cir. 1996) (“As a general matter, this court has long
sought to ensure that pro se litigants do not unwittingly
fall victim to procedural requirements that they may, with
some assistance from the court, be able to satisfy.”)
Nonetheless, pro se litigants must follow the same rules of
procedure that govern other litigants. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on
other grounds, Lacey v. Maricopa County, 693 F.3d
896 (9th Cir. 2012) (en banc). “Ignorance of court
rules does not constitute excusable neglect, even if the
litigant appears pro se.” Swimmer v. IRS, 811
F.2d 1343, 1345 (9th Cir. 1987), abrogated on other grounds
by Briones v. Riviera Hotel & Casino, 116 F.3d
379, 382 (9th Cir. 1997). Finally, Plaintiff has not
demonstrated diligence in seeking any discovery during the
open discovery period.
it is HEREBY ORDERED that:
1. Plaintiff's motion for extension of time (ECF No. 29)
is GRANTED. Plaintiff shall file his opposition within thirty
days from the date of this Order; and
2. Plaintiff's motion for additional time to conduct
discovery (ECF No. 30) is DENIED.
 Rule 56(d) does not provide the relief
that Plaintiff seeks. Instead, it authorizes a court to grant
summary judgment independent of a motion.
 On December 1, 2010, Federal Rule of
Civil Procedure 56(f) was renumbered and is now Federal Rule
of Civil Procedure 56(d). The advisory committee's notes
to Rule 56 regarding the 2010 amendments state that
“[s]ubdivision (d) carries forward without substantial
change the provisions of former subdivision (f).”
Fed.R.Civ.P. 56 advisory committee's notes. Thus, the
cited authorities ...