United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge
August 30, 2019, Defendant Powers filed a Motion for Summary
Judgment (Doc. 34). The Court issued an Order advising
Plaintiff that he must respond to the Motion for Summary
Judgment no later than October 9, 2019. (Doc. 36). On
September 27, 2019, Plaintiff filed a “Motion for
Extension of Time, ” which explains that Plaintiff
“needs to have full discovery and to have it before the
Plaintiff will be able to show evidence in opposition to
Defendant's Motion for Summary Judgment . . . .”
(Doc. 39 at 3). Plaintiff reiterates his need for discovery
in his Response (Doc. 51) to the Motion for Summary Judgment.
justify a continuance of a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 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”).
Defendant Powers correctly notes that Plaintiff's Motion
for Extension (Doc. 39) is not supported by an affidavit or
declaration as required by Rule 56(d), the Court does not
find that denial of the Motion is warranted on that basis
alone because (i) Plaintiff has adequately identified the
evidence he hopes to elicit during discovery in order to
oppose summary judgment and (ii) documents drafted by pro se
prisoners are held to less strict standards than those
drafted by attorneys. See, e.g., Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (the Ninth
Circuit has “held consistently that courts should
construe liberally motion papers and pleadings filed by pro
se inmates and should avoid applying summary judgment rules
strictly”). The discovery deadline is currently set for
February 28, 2020. (Doc. 40 at 2). The Court does not find
that Plaintiff has failed to diligently pursue discovery.
Further, 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)). The Court will grant
Plaintiff's Motion for Extension (Doc. 39).
pending before the Court is Defendant Powers'
“Motion to Stay” (Doc. 48). No. response has been
filed and the time to do so has passed. See LRCiv
7.2(i). For good cause shown, the Court will grant the Motion
on the foregoing, IT IS ORDERED granting
Plaintiffs “Motion for Extension of Time” (Doc.
IS FURTHER ORDERED setting January 15,
2020 as the deadline for completing discovery
concerning the exhaustion of administrative remedies issue.
IS FURTHER ORDERED withdrawing Defendant Powers'
Motion for Summary Judgment (Doc. 34) as prematurely filed.
The deadline for re-filing a motion for summary judgment
based on a failure to exhaust administrative remedies is
February 14, 2020.
IS FURTHER ORDERED granting Defendant Powers'
“Motion to Stay” (Doc. 48).
IS FURTHER ORDERED staying discovery unrelated to
the exhaustion of administrative remedies issue and other
deadlines set forth in the Court's Scheduling Order ...