United States District Court, D. Arizona
Eileen S. Willett, United States Magistrate Judge
This is a civil rights action filed by pro se prisoner Sherman Terrell Pruitt (“Plaintiff”) pursuant to 42 U.S.C. § 1983. There are six Defendants: (i) Dr. Kenneth Merchant; (ii) Nurse Practitioner Lawrence Ende; (iii) Registered Nurse Renae Furar; (iv) Nurse Practitioner Susan Thompson; (v) Dr. Orson Anderson; and (vi) Arizona Department of Corrections’ Director Charles L. Ryan. (Doc. 12 at 17). Plaintiff alleges that Defendants violated his Eighth Amendment rights under the U.S. Constitution by acting deliberately indifferent to his serious medical needs in relation to certain prostate and skin conditions. (Id. at 2-15).
Four motions filed by Plaintiff are currently pending: (i) two motions captioned as “Motion for Enlargement” (Docs. 73 and 74); (ii) “Motion for Rule 56 and Declaration” (Doc. 62); and (iii) “Motion for the Appointment of Expert Witnesses and Memorandum in Support and Declaration” (Doc. 80). The Court has reviewed the motions and issues its orders as set forth herein.
A. Plaintiff’s “Motion for Enlargement” (Doc. 73)
In his Motion filed on March 3, 2016, Plaintiff “requests the Court to grant him an extension of thirty days to respond to Defendants Ende, Merchant, Furar, Thompson, and Anderson’s responses to his First Request for Production of Documents.” (Doc. 73 at 1). Plaintiff states that he “would like the chance to try and resolve the discovery dispute with the Defendants . . . .” (Id.). The Court construes Plaintiff’s Motion as a request to extend the discovery deadline, which expired on January 15, 2016. (Doc. 47 at 2).
Modification of the Scheduling Order requires a showing of “good cause.” See Fed. R. Civ. P. 16(b). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If a pretrial schedule cannot be met despite the diligence of the party seeking an extension of time, the Court may modify its scheduling order. See Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (good cause means scheduling deadlines cannot be met despite party’s diligence). Carelessness is not good cause for the extension of discovery deadlines. Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry should end.” Id. (citations omitted). Moreover, where a motion is made to extend a deadline after the deadline has expired, the movant must show excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B).
The Court’s April 20, 2015 Scheduling Order gave the parties approximately seven months to complete discovery (until November 16, 2015). (Doc. 24 at 2). The discovery deadline was subsequently extended to January 15, 2016. (Doc. 47 at 2). One day before the discovery deadline, Petitioner filed a First Request for Production of Documents. (Doc. 51). “Common sense dictates that any requests for discovery must be made in sufficient time to allow the opposing party to respond before the termination of discovery[.]” Adobe Systems Inc. v. Christenson, No. 2:10-cv-00422-LRH-GWF, 2011 WL 1322529, * 2 (D. Nev. April 5, 2011) (quoting Northern Indiana Pub. Serv. Co. v. Colorado Westmoreland, Inc., 112 F.R.D. 423 (N.D. Ind. 1986)); see also Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003) (discovery “requests must be served at least thirty days prior to a completion of discovery deadline”; otherwise, the requests are untimely). On March 10, 2016, Plaintiff filed his Second Requests for Production of Documents (Docs. 77, 78, 79).
Plaintiff does not offer a reason for his delay in conducting discovery. The record does not reflect that reasons beyond Plaintiff’s control caused Plaintiff’s failure to serve his discovery requests at least thirty days prior to the discovery deadline. Plaintiff’s failure to conduct discovery earlier in the case constitutes a lack of diligence and is not excusable neglect. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993) (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect”). The Court denies Plaintiff’s “Motion for Enlargement” (Doc. 73).
B. Plaintiff’s “Motion for Rule 56 and Declaration” (Doc. 62)
On January 25, 2016, Defendants Merchant, Ende, Furar, and Thompson filed a Motion for Summary Judgment (Doc. 52). On February 1, 2016, Defendant Ryan filed a “Motion for Summary Judgment and Joinder in Codefendants’ Motion for Summary Judgment” (Doc. 55). On February 1, 2016, Defendant Anderson filed a Motion for Summary Judgment (Doc. 57). The Court issued orders notifying Plaintiff of the requirements for his responses to the Motions for Summary Judgment. (Docs. 54, 59, and 60). On February 25, 2016, Plaintiff filed a “Motion for Enlargement” (Doc. 69) seeking an extension of at least forty-five days to respond to Defendants Merchant, Ende, Furar, and Thompson’s Motion for Summary Judgment. The Court granted Plaintiff’s “Motion for Enlargement” and ordered that Plaintiff file his Response to Defendants’ Motion for Summary Judgment (Doc. 52) no later than March 31, 2016. (Doc. 71). To date, Plaintiff has not responded to any of the three Motions for Summary Judgment that have been filed in this case.
Pending before the Court is Plaintiff’s “Motion for Rule 56 and Declaration” (Doc. 62),  in which Plaintiff requests that the Court “pursuant to Federal Rules of Civil Procedure, Rule 56(f) . . . deny, or at least stay” Defendants Merchant, Ende, Furar, and Thompson’s Motion for Summary Judgment. The Court construes Plaintiff’s Motion as a motion for a Fed.R.Civ.P. 56(d) continuance. To justify a continuance of a motion for summary judgment pursuant to Fed.R.Civ.P. 56(d), the moving party must show that “(1) it has set forth in affidavit form the 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). Denial of a Rule 56(d) motion is proper if the movant fails to comply with the requirements of Rule 56(d) or if the movant has failed to conduct discovery diligently. See, e.g., United States v. Kitsap Physicians Service, 314 F.3d 995, 1000 (9th Cir. 2002) (“Failure to comply with [the requirements of Rule 56(d)] is a proper ground for denying relief.”); Pfingston v. Ronan Engineering Co., 284 F.3d 999, 1005 (9th Cir. 2002) (“The failure to conduct discovery diligently is grounds for the denial of a Rule 56[d] motion.”); Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot complain if it fails diligently to pursue discovery before summary judgment”); Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985) (ruling that district court properly denied the plaintiffs’ Rule 56(d) motion because the “[f]ailure to take further depositions apparently resulted largely from plaintiffs’ own delay”).
Plaintiff has had sufficient opportunity to conduct discovery in this case. As discussed, the Court’s April 20, 2015 Scheduling Order originally gave the parties approximately seven months to complete discovery, but the deadline was later extended to January 15, 2016. Hence, the parties had approximately nine months to complete discovery. Plaintiff waited until one day before the deadline to propound his First Request for Production of Documents. Plaintiff waited until almost two months after the discovery deadline to propound his Second Requests for Production of Documents (Docs. 77, 78, 79). Plaintiff's lack of diligence in conducting discovery supports the denial of Plaintiff’s Motion (Doc. 62). See Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (explaining that a district court may deny relief under Rule 56(d) if the party opposing summary judgment has failed to diligently pursue discovery). However, the Court remains mindful that “summary judgment is disfavored where relevant evidence remains to be discovered, particularly in cases involving confined pro se plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (citing Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). Thus, in an abundance of caution, the Court will review the merits of Plaintiff’s Motion.
In replying to Defendants Merchant, Ende, Furar, and Thompson’s Response (Doc. 70) to his Rule 56(d) Motion, Plaintiff asserts that the discovery requests in his Second Request for Production of Documents are necessary for his response to the Motion for Summary Judgment. (Doc. 83 at 4). However, Plaintiff does not (i) articulate the specific facts that Plaintiff hopes to elicit from the discovery requests; (ii) show that the facts sought exist; and (iii) show that the sought-after facts are essential to oppose summary judgment. Plaintiff therefore has failed to show that his Second Requests for Production of Documents justify a Rule 56(d) continuance. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (stating that “[i]n making a Rule 56[d] motion, a party opposing summary judgment must make clear what information is sought and how it would preclude summary judgment”) (citation and internal quotation marks omitted). Moreover, in response to Plaintiff’s First Request for Production of Documents, Defendant Ryan has produced (i) Plaintiff’s ...