Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Daniels v. STU Sherman

United States District Court, E.D. California

April 27, 2017

NORMAN GERALD DANIELS III, Plaintiff,
v.
STU SHERMAN, Defendant.

          ORDER DENYING PLAINTIFF'S FOURTH MOTION TO COMPEL [ECF No. 102]

         Plaintiff Norman Gerald Daniels III is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's fourth motion to compel, filed March 22, 2017. Defendant filed an opposition on April 12, 2017.

         I. BACKGROUND

         On November 30, 2015, the Court issued the discovery and scheduling order, mandating that all discovery be completed by July 29, 2016. (ECF No. 47.) The Court also ordered that discovery requests must be served at least forty-five days after the discovery was served. (Id.) The purpose of this was to allow the parties enough time to review discovery responses and, if necessary, draft a motion to compel further responses on or before July 29, 2016. (Id.) Thus, pursuant to the November 30, 2015, order the last day to serve written discovery was June 10, 2016. (Id.)

         The Court has previously denied Plaintiff's three motions to compel. (See ECF Nos. 77, 85, 99.) Plaintiff has now filed his fourth motion to compel and requests that Defendant Sherman respond to ten sets of requests for production served in February 2017.

         II. DISCUSSION

         In the present motion, Plaintiff moves Defendant Sherman to respond to Plaintiff's ten sets of requests for production served in February 2017. Plaintiff contends that Defendant Sherman's Rand notice submitted with his motion for summary judgment advised Plaintiff that he could seek discovery to oppose the motion. Plaintiff also submits that he served the discovery requests on Defendant Sherman pursuant to Federal Rule of Civil Procedure 56(d).

         Rule 56(d) provides that “[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: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). In seeking relief under Rule 56(d), Plaintiff bears the burden of specifically identifying relevant information, where there is some basis for believing that the information actually exists, and demonstrating that the evidence sought actually exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quotation marks and citation omitted); Getz v. Boeing Co., 654 F.3d 852, 867-68 (9th Cir. 2011); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006). A Rule 56(d) affidavit must identify “the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Tatum v. City and County of San Francisco, 441 F.3d at 1100.

         Plaintiff essentially contends that he has not had an opportunity to pursue discovery and he should now be able to conduct discovery in order to respond to Defendant's motion for summary judgment. Defendant argues that Plaintiff's motion should be denied because: “(1) the deadline for written discovery was June 10, 2016; (2) the motion to compel deadline was July 29, 2016; and (3) therefore, both Plaintiff's requests for production, served in February 2017, and this motion to compel, are untimely.” (Opp'n at 2:11-13.) Defendant further argues that in order for Plaintiff to invoke Rule 56(d) he must demonstrate that he diligently pursued discovery. Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir. 2004); Chance v. Pac-Tel Teletrac, Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001)).

         As an initial matter and contrary to Plaintiff's claim, the Rand notice is not an invitation to conduct additional discovery. Rather, the purpose of the Rand notice is to provide inmate litigants with fair notice of the requirements of Rule 56. Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). The Rand notice did not provide Plaintiff an opportunity to serve additional discovery after the time frame set forth in the Court's scheduling order. While the notice did advise Plaintiff that “[i]f additional discovery is needed to oppose summary judgment, Local Rule 260(b) requires you to ‘provide a specification of the particular facts on which discovery is to be had or the issues on which discovery is necessary.'” (Rand Not. at 3:1-3, ECF No. 87-14.) Thus, in order to seek to compel further discovery, after the expiration deadline set forth in the scheduling order, Plaintiff must receive court permission to do so.

         As explained in the prior orders, pursuant to the Court's discovery and scheduling order all written discovery requests were to be served at least forty-five days prior to the discovery deadline of July 29, 2016. (Order ¶¶ 2, 7, ECF No. 47.) Accordingly, all written discovery requests had to be served by June 10, 2016, to comply with the July 29, 2016, deadline. (Id.) In the present motion, Plaintiff contends:

Enclosed in exhibit A, is a letter from the Defendant stating that I do not have the ability to request discovery, when contrary to this fact, I am allowed to ask for such discovery under Federal Rules of Court, Local rule 260, and Rule 56(d)(2)), in where I am allowed to request such documentation, affidavits, etc, in order to show substantive facts, and also to disprove any statements made by the defense. It is well established that, mere testimony or oral arguments cannot be substantive, but coupled with evidence, will make a showing of facts enough to show an argument, and cause of action might exist.
I had made several requests for such discovery to the defendant in order to obtain relevant not knowing that I needed to petition the Court for such information.
I have now fouled myself once again due to my disability when I listened to another person for direction because I cannot read or write effectively. I have attempted to do the best I can with the limited resources I have ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.