1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 20-CV-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER (1) OVERRULING Plaintiff, 13 PLAINTIFF’S OBJECTIONS, vs. (2) ADOPTING REPORT AND 14 RECOMMENDATION IN ITS A. CORDERO; D. WHITE; 15 ENTIRETY, AND (3) DENYING WHITMAN, WITHOUT PREJUDICE 16 Defendants. PLAINTIFF’S MOTION FOR 17 SUMMARY JUDGMENT
18 (ECF Nos. 35, 53) 19 20 21 Presently before the Court is Plaintiff Joseph Davall’s Motion for Summary 22 Judgment (“Mot.,” ECF No. 35), as well as Defendant Whitman’s opposition thereto 23 (“Opp’n,” ECF No. 47), and Plaintiff’s reply in support thereof (ECF No. 51). Also before 24 the Court is Magistrate Judge Karen S. Crawford’s Report and Recommendation (“R&R,” 25 ECF No. 53) advising the Court to deny Plaintiff’s Motion without prejudice, as well as 26 Plaintiff’s Objections to the R&R (“Objs.,” ECF No. 57). Having carefully considered 27 Plaintiff’s Complaint (“Compl.,” ECF No. 1), Magistrate Judge Crawford’s R&R, the 28 Parties’ arguments, and the law, the Court OVERRULES Plaintiff’s Objections, 1 ADOPTS the R&R in its entirety, and DENIES WITHOUT PREJUDICE Plaintiff’s 2 Motion. 3 BACKGROUND 4 Magistrate Judge Crawford’s R&R contains a thorough, detailed, and accurate 5 recitation of the relevant facts and procedural history. See R&R at 2. This Order 6 incorporates by reference the background as set forth therein. 7 LEGAL STANDARDS 8 I. Report and Recommendation 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 11 a de novo determination of those portions of the report or specified proposed findings or 12 recommendations to which objection is made,” and “may accept, reject, or modify, in 13 whole or in part, the findings or recommendations made by the magistrate judge.” 28 14 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 15 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 16 objection, the Court “need only satisfy itself that there is no clear error on the face of the 17 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 18 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 19 II. Summary Judgment 20 “[A] party may file a motion for summary judgment at any time until 30 days after 21 the close of all discovery.” Fed. R. Civ. P. 56(b). However, under Rule 56(d), the Court 22 may defer or deny ruling on a summary judgment motion where the non-moving party 23 shows by affidavit or declaration that, “for specified reasons, it cannot present facts 24 essential to justify its opposition.” In addition, Rule 56(d) provides that the Court may 25 allow time to obtain affidavits or declarations or to take discovery; or issue any other 26 appropriate order. “The requesting party must show: (1) it has set forth in affidavit form 27 the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) 28 the sought-after facts are essential to oppose summary judgment.” Family Home & Fin. 1 Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). District 2 courts should grant a Rule 56(d) motion “fairly freely” where a summary judgment motion 3 is filed before a party has had a realistic opportunity to pursue discovery relevant to its 4 theory of the case. Burlington N. Santa Fe R. Co. v. Assinboine & Sioux Tribes of Fort 5 Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). Continuance of a motion for 6 summary judgment for the purposes of discovery should be granted almost as a matter of 7 course unless the non-moving party has not diligently pursued discovery of the evidence. 8 Id. 9 ANALYSIS 10 Plaintiff’s Complaint under the Civil Rights Act, 42 U.S.C. § 1983, asserts a claim 11 that Defendant violated his rights under the Eighth Amendment by not permanently 12 housing him in a single cell. See generally Compl. Plaintiff moved for summary judgment, 13 arguing that “[t]his is not an individual unique problem, it is a class problem. Prison 14 officials are well aware that sex offenders are assaulted in the cell.” Mot. at 3. As to the 15 facts specific to Plaintiff alleged in the Complaint, Plaintiff claims that Defendant “argues 16 about circumstance of incidents. Importantly, however, Defendant offers no alternative 17 narrative[.]” Id. at 6. In her opposition to the Motion, Defendant does not address any of 18 Plaintiff’s substantive legal claims but instead requests more time to conduct discovery 19 pursuant to Federal Rule of Civil Procedure 56(d). Opp’n at 1. Defendant seeks additional 20 time to depose Plaintiff and argues that Plaintiff’s motion for summary judgment is 21 premature, as Plaintiff moved for summary judgment before Defendant answered 22 Plaintiff’s Complaint and before the Court issued a scheduling order. Id. Magistrate Judge 23 Crawford’s R&R finds that Defendant has satisfied the requirements of Rule 56(d) and 24 recommends that the Court deny without prejudice Plaintiff’s Motion. R&R at 5. 25 In Plaintiff’s Objections, he argues that Defendant has failed to meet the 26 requirements of Rule 56(d) because Defendant “has failed to specify what if any facts 27 essential to her defense are missing.” Objs. at 1. Plaintiff claims that “Rule 56 does not 28 require the non moving party to depose her witness.” Id. (citing Celotex Corp. v. Catrett, 1 477 U.S. 317 (1986)). Additionally, Plaintiff “rejects the contention that respondent has 2 not had enough time for discovery.” Id. Plaintiff claims that Defendant “has had close to 3 a year already and the fact that [Defendant] waited till now is only evidence of intentional 4 delay of summary judgment.” Id. Plaintiff claims Magistrate Judge Crawford “was in 5 error to ignore the bulk of Rule 56 and consider only section (d).” Id. at 2. Additionally, 6 Plaintiff argues Magistrate Judge Crawford “misinterpreted the holding of the Celotex 7 case.” Id. Plaintiff reasserts that he has met his burden on summary judgment. Id. 8 The Court reviews de novo those portions of Magistrate Judge Crawford’s R&R to 9 which Plaintiff objects and reviews for clear error the remainder of the R&R. 10 First, Plaintiff objects to the R&R’s finding that Defendant has set forth specific 11 facts that she hopes to elicit from further discovery. See Objs. at 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 20-CV-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER (1) OVERRULING Plaintiff, 13 PLAINTIFF’S OBJECTIONS, vs. (2) ADOPTING REPORT AND 14 RECOMMENDATION IN ITS A. CORDERO; D. WHITE; 15 ENTIRETY, AND (3) DENYING WHITMAN, WITHOUT PREJUDICE 16 Defendants. PLAINTIFF’S MOTION FOR 17 SUMMARY JUDGMENT
18 (ECF Nos. 35, 53) 19 20 21 Presently before the Court is Plaintiff Joseph Davall’s Motion for Summary 22 Judgment (“Mot.,” ECF No. 35), as well as Defendant Whitman’s opposition thereto 23 (“Opp’n,” ECF No. 47), and Plaintiff’s reply in support thereof (ECF No. 51). Also before 24 the Court is Magistrate Judge Karen S. Crawford’s Report and Recommendation (“R&R,” 25 ECF No. 53) advising the Court to deny Plaintiff’s Motion without prejudice, as well as 26 Plaintiff’s Objections to the R&R (“Objs.,” ECF No. 57). Having carefully considered 27 Plaintiff’s Complaint (“Compl.,” ECF No. 1), Magistrate Judge Crawford’s R&R, the 28 Parties’ arguments, and the law, the Court OVERRULES Plaintiff’s Objections, 1 ADOPTS the R&R in its entirety, and DENIES WITHOUT PREJUDICE Plaintiff’s 2 Motion. 3 BACKGROUND 4 Magistrate Judge Crawford’s R&R contains a thorough, detailed, and accurate 5 recitation of the relevant facts and procedural history. See R&R at 2. This Order 6 incorporates by reference the background as set forth therein. 7 LEGAL STANDARDS 8 I. Report and Recommendation 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 11 a de novo determination of those portions of the report or specified proposed findings or 12 recommendations to which objection is made,” and “may accept, reject, or modify, in 13 whole or in part, the findings or recommendations made by the magistrate judge.” 28 14 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 15 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 16 objection, the Court “need only satisfy itself that there is no clear error on the face of the 17 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 18 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 19 II. Summary Judgment 20 “[A] party may file a motion for summary judgment at any time until 30 days after 21 the close of all discovery.” Fed. R. Civ. P. 56(b). However, under Rule 56(d), the Court 22 may defer or deny ruling on a summary judgment motion where the non-moving party 23 shows by affidavit or declaration that, “for specified reasons, it cannot present facts 24 essential to justify its opposition.” In addition, Rule 56(d) provides that the Court may 25 allow time to obtain affidavits or declarations or to take discovery; or issue any other 26 appropriate order. “The requesting party must show: (1) it has set forth in affidavit form 27 the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) 28 the sought-after facts are essential to oppose summary judgment.” Family Home & Fin. 1 Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). District 2 courts should grant a Rule 56(d) motion “fairly freely” where a summary judgment motion 3 is filed before a party has had a realistic opportunity to pursue discovery relevant to its 4 theory of the case. Burlington N. Santa Fe R. Co. v. Assinboine & Sioux Tribes of Fort 5 Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). Continuance of a motion for 6 summary judgment for the purposes of discovery should be granted almost as a matter of 7 course unless the non-moving party has not diligently pursued discovery of the evidence. 8 Id. 9 ANALYSIS 10 Plaintiff’s Complaint under the Civil Rights Act, 42 U.S.C. § 1983, asserts a claim 11 that Defendant violated his rights under the Eighth Amendment by not permanently 12 housing him in a single cell. See generally Compl. Plaintiff moved for summary judgment, 13 arguing that “[t]his is not an individual unique problem, it is a class problem. Prison 14 officials are well aware that sex offenders are assaulted in the cell.” Mot. at 3. As to the 15 facts specific to Plaintiff alleged in the Complaint, Plaintiff claims that Defendant “argues 16 about circumstance of incidents. Importantly, however, Defendant offers no alternative 17 narrative[.]” Id. at 6. In her opposition to the Motion, Defendant does not address any of 18 Plaintiff’s substantive legal claims but instead requests more time to conduct discovery 19 pursuant to Federal Rule of Civil Procedure 56(d). Opp’n at 1. Defendant seeks additional 20 time to depose Plaintiff and argues that Plaintiff’s motion for summary judgment is 21 premature, as Plaintiff moved for summary judgment before Defendant answered 22 Plaintiff’s Complaint and before the Court issued a scheduling order. Id. Magistrate Judge 23 Crawford’s R&R finds that Defendant has satisfied the requirements of Rule 56(d) and 24 recommends that the Court deny without prejudice Plaintiff’s Motion. R&R at 5. 25 In Plaintiff’s Objections, he argues that Defendant has failed to meet the 26 requirements of Rule 56(d) because Defendant “has failed to specify what if any facts 27 essential to her defense are missing.” Objs. at 1. Plaintiff claims that “Rule 56 does not 28 require the non moving party to depose her witness.” Id. (citing Celotex Corp. v. Catrett, 1 477 U.S. 317 (1986)). Additionally, Plaintiff “rejects the contention that respondent has 2 not had enough time for discovery.” Id. Plaintiff claims that Defendant “has had close to 3 a year already and the fact that [Defendant] waited till now is only evidence of intentional 4 delay of summary judgment.” Id. Plaintiff claims Magistrate Judge Crawford “was in 5 error to ignore the bulk of Rule 56 and consider only section (d).” Id. at 2. Additionally, 6 Plaintiff argues Magistrate Judge Crawford “misinterpreted the holding of the Celotex 7 case.” Id. Plaintiff reasserts that he has met his burden on summary judgment. Id. 8 The Court reviews de novo those portions of Magistrate Judge Crawford’s R&R to 9 which Plaintiff objects and reviews for clear error the remainder of the R&R. 10 First, Plaintiff objects to the R&R’s finding that Defendant has set forth specific 11 facts that she hopes to elicit from further discovery. See Objs. at 1. Based on the Court’s 12 de novo review, the Court finds that Defendant has complied with the procedural 13 requirements of Rule 56(d) by submitting the declaration of Lyndsay Crenshaw. Ms. 14 Crenshaw’s declaration identified the following specific facts that Defendant seeks from 15 further discovery: (1) “prison policy regarding the assignment of permanent single-cell 16 status”; and (2) “prison policy regarding the classification of prisoners, and how they are 17 assigned housing.” Crenshaw Decl. ¶ 2, ECF No. 47-1. The Court finds that Defendant 18 has sufficiently set forth what she hopes to elicit from further discovery. The defenses that 19 Defendant wishes to pursue could play an important role in defending Plaintiff’s Eighth 20 Amendment claim. 21 Plaintiff is correct that Rule 56 does not require Defendant to depose Plaintiff; 22 however, depositions are a common mechanism for parties to develop factual support for 23 claims and defenses. As the Supreme Court stated in Celotex: 24 Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary 25 judgment motion to be opposed by any of the kinds of 26 evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would 27 normally expect the nonmoving party to make the showing to 28 which we have referred. 1 Celotex Corp., 477 U.S. at 324. Although a deposition is not required, it is contemplated 2 by the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 30, and Defendant was granted 3 leave to depose Plaintiff, ECF No. 48. Further, this Court upheld Magistrate Judge 4 Crawford’s order granting Defendant leave to take Plaintiff’s deposition over Plaintiff’s 5 objections. See ECF No. 58. As Plaintiff’s claims relate to incidents he experienced, it is 6 reasonable for Defendant to want to depose Plaintiff and use this evidentiary material to 7 oppose summary judgment. 8 Next, Plaintiff claims that Defendant’s request is “evidence of intentional delay.” 9 Objs. at 1. The Court finds no merit in Plaintiff’s argument that Defendant has intentionally 10 delayed this proceeding. At the time Plaintiff filed the Motion for Summary Judgment, 11 Defendant had not yet served her answer. At the time Defendant filed her opposition to 12 the Motion, the Parties had not yet started discovery. Plaintiff’s assertion that “Defendant 13 has had close to a year already,” Objs. at 1, is false. Although Plaintiff initiated this action 14 on October 5, 2020, the Court first had to screen and serve Plaintiff’s Complaint. 15 Defendant then filed a motion to dismiss Plaintiff’s Complaint. The Court did not issue a 16 scheduling order until after the Court ruled on the motion to dismiss. Therefore, no 17 discovery took place until after Defendant filed her answer on June 15, 2021. No issue 18 exists as to whether Defendant has been diligent in pursuing discovery because prior to 19 filing her Opposition, Defendant had not had a realistic opportunity to pursue discovery 20 relevant to her theory of the case. Burlington N. Santa Fe R. Co., 323 F.3d at 773. The 21 Court finds that the better course of action is to permit Defendant the opportunity to take 22 discovery as to these issues before having to oppose Plaintiff’s Motion for Summary 23 Judgment. Gallagher & Kennedy PA v. City of Phoenix, No. 2:16-CV-4447-DAE, 2019 24 WL 13032292, at *18 (D. Ariz. Mar. 8, 2019) (denying motion for summary judgment 25 based on Rule 56(d) when “discovery has not yet begun and a scheduling order for such 26 has not yet been filed”); Moore v. Hubbard, No. CIVS06-2187 FCDEFBP, 2009 WL 27 688897, at *1 (E.D. Cal. Mar. 13, 2009), report and recommendation adopted, No. 28 CIVS062187FCDEFBP, 2009 WL 902240 (E.D. Cal. Mar. 31, 2009) (“Plaintiff’s 1 [summary judgment] motion is premature, as discovery has not yet begun, defendants have 2 not yet filed an answer and the court has yet to issue a discovery and scheduling order.). 3 Finally, Plaintiff’s reliance on Celotex is misplaced. The Supreme Court held that 4 that the party opposing summary judgment was not “railroaded” by a premature motion for 5 summary judgment when the movant filed for summary judgment a year after the case 6 commenced—crucially, after the parties had conducted discovery. Celotex Corp., 477 U.S. 7 at 326. The Court stated that “the plain language of Rule 56(c) mandates the entry of 8 summary judgment, after adequate time for discovery and upon motion, against a party 9 who fails to make a showing sufficient to establish the existence of an element essential to 10 that party’s case, and on which that party will bear the burden of proof at trial.” Celotex 11 Corp., 477 U.S. at 322 (1986) (emphasis added). Here, there has not been adequate time 12 for discovery. The facts in Celotex are clearly distinguishable from the present action. No 13 discovery had occurred in this case when Plaintiff filed his motion for summary judgment. 14 In fact, Defendant’s motion to dismiss was still pending and Defendant had not yet filed 15 an answer. Additionally, the Celotex Court stated that “Rule 56 must be construed with 16 due regard . . . for the rights of persons opposing such claims and defenses[.]” Celotex 17 Corp., 477 U.S. at 327. The Court will not require Defendant to defend on the merits 18 claims she has not had a fair opportunity to explore in discovery. Although the Court 19 appreciates Plaintiff’s desire to resolve this case quickly, it is in the interest of fairness and 20 judicial economy to consider Plaintiff’s claims once the Parties have had the opportunity 21 to adequately develop the record. 22 CONCLUSION 23 In light of the foregoing, the Court OVERRULES Plaintiff’s Objections (ECF No. 24 57), ADOPTS Magistrate Judge Crawford’s R&R (ECF No. 53), and DENIES 25 WITHOUT PREJUDICE Plaintiff’s Motion for Summary Judgment (ECF No. 35). 26 /// 27 /// 28 /// 1 Because Plaintiff's Motion is denied without prejudice, Plaintiff may again bring his 2 || Motion once the relevant depositions and production have occurred. 3 IT IS SO ORDERED. 4 || Dated: November 9, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7