United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION FOR DISCOVERY AND FOR
CONTINUANCE OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(DOCS. 35, 42)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
proceeds in this action on claims under the Eighth Amendment
against Defendants for deliberate indifference to his serious
medical needs when, allegedly despite the existence of
medical orders, Plaintiff was not allowed to have a lower
bunk. Defendants filed a motion for summary judgment on the
merits of Plaintiff's claims and on the basis that
Plaintiff's allegations fail to state a claim which he
may pursue under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc.
35.) Though Plaintiff has filed an opposition, (Doc. 39), he
recently filed a motion to postpone consideration of
Defendants' motion for summary judgment to be allowed to
conduct discovery per Rule 56(d) of the Federal Rules of
Civil Procedure. (Doc. 42.) Discovery has yet to be opened.
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); 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).
requests to be allowed to conduct discovery as to whose
responsibility it is to make an entry in SENTRY when an
inmate is assigned a Medical Duty Status (MDS). Plaintiff
also desires to identify the procedure correctional
counselors are to follow if an inmate shows them a valid MDS
indicating that he requires a lower bunk as well as the
policies and/or procedures that apply to the Medical
Department when an inmate is given an MDS accommodation
chrono. Plaintiff states that, in their motion, Defendants
rely solely on the date in SENTRY for having reassigned him
to an upper bunk. Plaintiff questions the authenticity and
accuracy of the SENTRY entries because many do not reflect
start and stop dates. The Court does not agree that discovery
as to the person responsible for entering the data into
SENTRY bears on the issues raised. However, discovery as to
the authenticity of the SENTRY documents submitted and the
procedures the defendants were obligated to follow when
documents provided by an inmate differs from the entries in
SENTRY, may bear on the issues raised. Accordingly, the Court
1. Plaintiff's motion to postpone consideration of
Defendants' motion for summary judgment and to be allowed
to conduct discovery, filed on August 28, 2019 (Doc. 42), is
GRANTED; 2. Discovery is permitted by both sides as to the
authenticity of the SENTRY documents submitted and the
procedures the defendants were obligated to follow if the
plaintiff provided them documentation that differed from the
entries in SENTRY. This may include depositions of the
parties, if needed.
3. The Clerk of the Court is directed to issue a Discovery
and Scheduling Order.
4. Regardless of the dates set forth in the Discovery and
Scheduling Order, if Plaintiff discovers evidence he feels is
relevant to establish a triable issue of fact to defeat
Defendants' motion for summary judgment he may file a new
oppositionon or before December 15, 2019.
5. If Plaintiff files a new opposition to Defendants'
motion for summary judgment, Defendants may file a new
reply within seven days from the date
Plaintiff's new opposition is filed. Defendants'
motion for summary judgment will thereafter be deemed
submitted. L.R. 230 (l).
 In this event, Plaintiff's
opposition to Defendants' motion for summary judgment,
filed on August 18, 2019 (Docs. 38, 39, 40), will be stricken
from the record. Hence, any new opposition Plaintiff files
should be full and complete.
 Similarly, in this event,
Defendants' prior reply, filed on August 26, 2019 (Doc.
41), will be ...