Davall v. Cordero

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, CDCR #AW-8294, Case No.: 3:20-cv-1968-JLS-KSC 12 Plaintiff, REPORT AND RECOMMENDATION 13 v. FOR ORDER DENYING PLAINTIFF’S MOTION FOR 14 A. CORDERO; D. WHITE; WHITMAN, SUMMARY JUDGMENT WITHOUT 15 Defendants. PREJUDICE 16 [Doc. No. 35] 17 18 Plaintiff Joseph Davall (“plaintiff”) is proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights 20 under the United States Constitution by denying his request to be housed in a single cell. 21 See generally Doc. No. 1. Before the Court is plaintiff Joseph Davall’s (“plaintiff”) Motion 22 for Summary Judgment (“Motion” or “Mot.”). Doc. No. 35. Defendant Whitman1 23 (“defendant” or “Whitman”) opposes the Motion (“Opposition” or “Opp.”, Doc. No. 47), 24 and plaintiff filed a reply (“Reply”). Doc. No. 51. Pursuant to 28 U.S.C. § 636(b)(1) and 25 Civil Local Rule 72.1, the undersigned Magistrate Judge submits this Report and 26 27 1 Defendant White was previously dismissed from this Action. Doc. No. 4. Defendant A. Cordero has not 28 1 Recommendation to United States District Judge Janis L. Sammartino. For the reasons 2 stated below, the Court RECOMMENDS that plaintiff’s Motion be DENIED 3 WITHOUT PREJUDICE as premature and that defendant’s request for relief pursuant to 4 Federal Rule of Civil Procedure 56(d) be GRANTED. 5 I. PROCEDURAL HISTORY 6 Plaintiff filed his Complaint on October 5, 2020. Doc. No. 1. On January 19, 2021, 7 after the District Court denied plaintiff’s motion for a preliminary injunction, Whitman 8 moved to dismiss the Complaint. Doc. No. 22. On May 21, 2021, before the District Court 9 had ruled on Whitman’s motion to dismiss, plaintiff filed the instant Motion. Doc. No. 35. 10 Given the pendency of the motion to dismiss, the District Court stayed briefing on the 11 Motion. Doc. No. 36. On June 1, 2021, the District Court issued an order granting in part 12 and denying in part Whitman’s motion to dismiss plaintiff’s Complaint. Doc. No. 37. 13 Whitman answered the Complaint on June 15, 2021, to which plaintiff filed a “Reply” on 14 July 1, 2021. Doc. Nos. 38, 41. The District Court lifted the stay of briefing as to the 15 Motion, and referred the Motion to the undersigned for report and recommendation, by 16 order dated July 7, 2021. Doc. No. 42. Whitman’s Opposition and plaintiff’s Reply were 17 timely filed thereafter. On June 24, 2021, before the District Court’s order lifting the 18 briefing stay, the undersigned issued a Scheduling Order requiring that fact discovery be 19 completed by November 5, 2021, and that dispositive motions be filed no later than March 20 11, 2022, after the parties had completed fact and expert discovery. See Doc. No. 39. On 21 August 5, 2021, the undersigned granted Whitman’s motion for leave to take plaintiff’s 22 deposition pursuant to Rule 30(a)(2)(B). Doc. No. 48. 23 Citing Federal Rule of Civil Procedure 56(d), Whitman requests the Court “either 24 deny [p]laintiff’s [M]otion … because it is premature, or allow [her] seventy-five days to 25 conduct discovery and file an opposition.” Opp. at 1. Whitman states she requires 26 additional time to develop evidence – specifically, plaintiff’s deposition and possibly an 27 expert’s opinion – to oppose the Motion. Id. at 1-2. Plaintiff opposes this request, stating 28 that defendant is “gaming the system” to create delay. Reply at 4. 1 II. DISCUSSION 2 Rule 56(d) “provides a device for litigants to avoid summary judgment when they 3 have not had sufficient time to develop affirmative evidence.” United States v. Kitsap 4 Phys. Svc., 314 F.3d 995, 1000 (9th Cir. 2002). Under the Rule, where a party opposing 5 summary judgment “shows by affidavit or declaration that, for specified reasons, it cannot 6 present facts essential to justify its opposition,” the Court may: “(1) defer considering the 7 [summary judgment] motion or deny it; (2) allow time to obtain affidavits or declarations 8 or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d)(1)-(3). 9 Rule 56(d) is designed to address “premature” summary judgment motions, where the 10 nonmoving party has not had a fair opportunity to conduct discovery prior to filing its 11 opposition. See Celotex Corp v. Catrett, 477 U.S. 317, 326 (1986). Where “a summary 12 judgment motion is filed so early in the litigation, before a party has had any realistic 13 opportunity to pursue discovery relating to its theory of the case, district courts should 14 generally grant any Rule 56[(d)] motion fairly freely.” Burlington N. Santa Fe R.R. Co. v. 15 Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). 16 The Court finds that defendant has satisfied the requirements of Rule 56(d). 17 Whitman’s Opposition is accompanied by her counsel’s declaration, in which counsel 18 identifies the discovery that is necessary to oppose the Motion – specifically, testimony 19 from plaintiff and other witnesses and document discovery – and explains how that 20 discovery bears on the issues presented in the Motion. See Doc. No. 47-1 at 1-2. The 21 Court rejects plaintiff’s contention that Whitman has had “more than enough time” to 22 obtain this discovery. Reply at 1. Whitman only recently answered the Complaint,2 and 23 while her counsel’s declaration indicates she has obtained documents from some 24 nonparties, there is no reason for the Court to believe that the necessary depositions and 25 26 27 2 Plaintiff states that Whitman filed her answer in January 2021, misconstruing her motion to dismiss as 28 1 document discovery could or should have been completed by now. Indeed, the Court’s 2 Scheduling Order permits discovery to continue for several more weeks. 3 The Court also rejects plaintiff’s assertion that Whitman should not be allowed time 4 to take his deposition because it is unfair “to allow a seasoned attorney to question a pro 5 se litigant to defendant’s favor.” Reply at 2. Plaintiff does not cite any authority that 6 excuses him from participating in discovery by virtue of his pro se status. To the contrary, 7 plaintiff is expected to comply with the Federal Rules of Civil Procedure, this District’s 8 Local Rules, and the undersigned’s Chambers’ Rules. See Sanchez v. Rodriguez, 298 9 F.R.D. 460, 470 (C.D. Cal. 2014) (“pro se status does not excuse intentional 10 noncompliance with discovery rules and court orders”). 11 The Court also finds that no prejudice would result to plaintiff from the denial of his 12 Motion without prejudice to his ability to move again at a later stage of the litigation. This 13 case is in the early stages of discovery and there is ample time before the March 11, 2022 14 deadline for dispositive motions for the parties to file motions for summary judgment. 15 Allowing the parties time to proceed with discovery and develop the evidence will serve 16 judicial economy and facilitate resolution of any dispositive motion on a more complete 17 record. See Fed. R. Civ. P. 1 (“These rules … should be construed, administered, and 18 employed by the court and the parties to secure the just, speedy, and inexpensive 19 determination of every action and proceeding.”). Accordingly, the undersigned 20 RECOMMENDS that Whitman’s request for Rule 56(d) relief be GRANTED and 21 Plaintiff’s Motion be DENIED WITHOUT PREJUDICE. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// l RECOMMENDATION AND ORDER 2 Based on the foregoing, the Court RECOMMENDS that Defendant’s request for 3 || relief under Rule 56(d) [Doc. No. 47] be GRANTED and Plaintiff's Motion for Summary 4 || Judgment [Doc. No. 35] be DENIED WITHOUT PREJUDICE. 5 IT IS HEREBY ORDERED that any party may file written objections with the 6 ||Court and serve a copy on all parties on or before September 20, 2021. The document 7 ||should be captioned “Objections to Report and Recommendation.” 8 IT IS HEREBY FURTHER ORDERED that any reply to the objections shall be 9 served and filed on or before September 30, 2021. 10 The parties are advised that failure to file objections within the specified time may 11 || waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153 (9th 12 1991). 13 |} IT IS SO ORDERED. 14 Dated: August 24, 2021 A y /; ) 15 WU LA SSS 16 Hori. Karen S. Crawford United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28