Hausauer v. Mesa, City of

• Court: District Court, D. Arizona
• Decided: September 10, 2021
• Docket: 2:20-cv-00653
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jeffery T Hausauer, No. CV-20-00653-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 City of Mesa, et al.,

13 Defendants. 14 15 In this action, pro se Plaintiff Jeffrey T. Hausauer (“Plaintiff”) alleges that, after he 16 was involved in an automobile accident in April 2019, six members of the Mesa Police 17 Department arrived at the scene, prevented medical personnel from proving assistance to 18 him, threatened him with weapons, and forced the driver of the vehicle that had hit him to 19 get back into her car and drive over him “several more times.” (Doc. 7.) Although the 20 Court recognized that these allegations were “improbable,” it declined to dismiss the 21 complaint at the pleading stage. (Doc. 21 at 7-11.) 22 In the Rule 26(f) report, both sides agreed (with one exception not applicable here) 23 that the fact discovery period should extend until July 31, 2021. (Doc. 28 at 9.) The Court 24 accepted the parties’ agreement on this point and set July 31, 2021 as the fact-discovery 25 deadline in the Rule 16 scheduling order. (Doc. 31 at 2.) Notwithstanding this, it appears 26 that Plaintiff took no steps to pursue discovery before the deadline expired. (Doc. 35 at 2 27 [“To date, plaintiff has not disclosed a single document, and he has not conducted any 28 discovery in this case.”].) 1 Now pending before the Court is the defendants’ motion for summary judgment. 2 (Doc. 35.) In response, Plaintiff has filed what appears to be a combined opposition to the 3 defendants’ motion and Rule 56(d) request for leave to pursue additional discovery before 4 responding. (Doc. 42.) Both motions are addressed below. 5 I. Motion For Summary Judgment 6 A. Legal Standard 7 “The court shall grant summary judgment if [a] movant shows that there is no 8 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 9 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 10 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 11 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 12 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 13 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 14 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 15 improper where divergent ultimate inferences may reasonably be drawn from the 16 undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted). 17 A party moving for summary judgment “bears the initial responsibility of informing 18 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 20 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “In 22 order to carry its burden of production, the moving party must either produce evidence 23 negating an essential element of the nonmoving party’s claim or defense or show that the 24 nonmoving party does not have enough evidence of an essential element to carry its 25 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 26 F.3d 1099, 1102 (9th Cir. 2000). “If . . . [the] moving party carries its burden of production, 27 the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103. 28 “If the nonmoving party fails to produce enough evidence to create a genuine issue 1 of material fact, the moving party wins the motion for summary judgment.” Id. There is 2 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 4 significantly probative, summary judgment may be granted.” Id. at 249-50 (citations 5 omitted). At the same time, the evidence of the non-movant is “to be believed, and all 6 justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for 7 summary judgment, the judge must view the evidence presented through the prism of the 8 substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary judgment 9 inquiry as to whether a genuine issue exists will be whether the evidence presented is such 10 that a jury applying that evidentiary standard could reasonably find for either the plaintiff 11 or the defendant.” Id. at 255. 12 B. Discussion 13 The summary judgment analysis in this case is straightforward. In their motion, the 14 defendants contend that both of Plaintiff’s remaining claims against them—(1) a § 1983 15 claim premised on deliberate indifference to medical needs, in violation of the Fourteenth 16 Amendment, and (2) a state-law claim for assault and battery (Doc. 21 at 6-7)—necessarily 17 fail because “none of the defendant-officers touched, harmed, threatened, or endangered 18 the plaintiff in any way” and “none of the defendant-officers interacted with the plaintiff 19 in any way at the accident scene.” (Doc. 35 at 8, emphasis omitted.) Each defendant has 20 also provided a declaration confirming the absence of any harm, threats, or interaction. 21 (Docs. 36-1, 36-2, 36-3, 36-4, 36-5, 36-6.)1 22 In his response, Plaintiff objects to the defendants’ declarations on the ground that 23 1 The Court notes that the defendants submitted a separate statement of facts in 24 support of their summary judgment motion. (Doc. 36.) This approach was improper under the scheduling order: “Local Rule of Civil Procedure 56.1 is suspended, except for 25 subsection (d). The Court will decide summary judgment motions under Federal Rule of Civil Procedure 56 only. In other words, the parties may not file separate statements of 26 facts or separate controverting statements of facts, and instead must include all facts in the motion, response, or reply itself. All evidence to support a motion or response that is not 27 already part of the record must be attached to the briefs.” (Doc. 31 at 5.) Nevertheless, because the defendants’ declarations themselves were attached to the separate statement, 28 and the declarations are clearly sufficient to meet the defendants’ initial burden of production, the Court will overlook this procedural misstep. 1 they are “Not Notarized.” (Doc. 42 at 4-5.) As the defendants correctly explain in their 2 reply (Doc. 43 at 5-6), this objection is unavailing—because the declarations were signed 3 under penalty of perjury, they are properly before the Court. See, e.g., Goldman, Antonetti, 4 Ferraiuoli, Axtmayer & Hertellv v. Medfit Int’l, Inc., 982 F.2d 686, 689 (1st Cir. 1993) 5 (citing 28 U.S.C. § 1746). 6 Because the defendants’ declarations are properly before the Court, and because the 7 declarations are sufficient to meet the defendants’ initial burden of production, the burden 8 shifted to Plaintiff to “produce evidence to support [his] claim.” Nissan Fire & Marine, 9 210 F.3d at 1103. Plaintiff failed to do so—he did not attach any evidence to his response 10 (not even a declaration avowing to the facts alleged in the complaint).2 Thus, the 11 defendants are entitled to summary judgment. 12 II. Plaintiff’s Rule 56(d) Request 13 In his response to the defendants’ summary judgment motion, Plaintiff includes a 14 “Motion to Extend Discovery,” a “Motion[] . . . to Order City of Mesa to Allow Plaintiff 15 Pre-Deposition Contact with its Employees,” and a “Motion[] . . . to Order the Defense to 16 Depose All Witnesses.” (Doc. 42.) Liberally construed, these requests seem to amount to 17 a request under Rule 56(d) of the Federal Rules of Civil Procedure for leave to pursue 18 additional discovery before responding to the defendants’ summary judgment motion. 19 This request is denied for three independent reasons. First, it is untimely. “A motion 20 under Rule 56(d) should be made before the close of discovery.” Miyares v. City of New 21 York, 2013 WL 3940816, *2 n.3 (S.D.N.Y. 2013). Here, as noted, fact discovery closed 22 on July 31, 2021 (which is the deadline that Plaintiff originally requested). Although the 23 motion states that Plaintiff was hospitalized for two days in February 2021 due to 24

25 2 Under Ninth Circuit law, if a plaintiff “is pro se, [the court] must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions 26 and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that 27 the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Here, although Plaintiff is proceeding pro se, he has never 28 attested under penalty of perjury, in any of his filings in this case (Docs. 1, 7, 19, 24, 25, 39, 40, 42), that the factual allegations in the complaint (Doc. 7) are true and correct. 1 pneumonia and COVID-19 symptoms, and further states in vague fashion that Plaintiff is 2 awaiting hip replacement surgery (which has not yet been scheduled), no explanation is 3 provided for why Plaintiff waited until after the close of the discovery period to seek relief. 4 Cf. Gonzalez v. Garibay, 2012 WL 12875366, *4 (S.D. Cal. 2012) (“Since Garibay’s 5 motion was not filed until two-and-a-half months after discovery ended, . . . . the Court 6 DENIES Gonzalez’s untimely and unsupported request for relief under Rule 56(d).”). This 7 omission is particularly noteworthy because the Court remarked, when denying an earlier 8 (but still untimely) request by Plaintiff to reopen discovery, that he had not provided any 9 “discussion of the discovery-related steps, if any, he took before he began experiencing the 10 asserted health complications” and had not identified “the specific discovery-related steps 11 that [he] was prevented from completing . . . due to his health complications.” (Doc. 41.) 12 Second, the motion is procedurally deficient. Rule 56(d) provides that “[i]f a 13 nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present 14 facts essential to justify its opposition, the court may: (1) defer considering the motion or 15 deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue 16 any other appropriate order.” Id. (emphasis added). Put another way, a “party seeking to 17 delay summary judgment for further discovery . . . . must show that: (1) it has set forth in 18 affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought 19 exist; and (3) the sought-after facts are essential to oppose summary judgment.” Stevens 20 v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (cleaned up) (emphasis added) 21 (emphasis omitted). Here, Plaintiff has failed to submit the required affidavit or 22 declaration. This, alone, precludes relief. Brae Transp., Inc. v. Coopers & Lybrand, 790 23 F.2d 1439, 1443 (9th Cir. 1986) (“[Rule 56(d)] requires affidavits setting forth the 24 particular facts expected from the movant’s discovery. Failure to comply with the 25 requirements . . . is a proper ground for denying discovery and proceeding to summary 26 judgment.”). 27 Third, even if the Court were to overlook this procedural deficiency and treat the 28 motion as Plaintiff’s declaration, relief would still be unwarranted. The motion makes no effort to identify the additional facts Plaintiff believes he would uncover through the requested discovery processes (such as recovering video footage from Home Depot, see 3|| Doc. 42 at 6) and makes no effort to explain why those unspecified missing facts are 4|| essential for opposing the defendants’ summary judgment arguments. Such a showing is a prerequisite to relief under Rule 56(d). See, e.g., Ohno v. Yasuma, 723 F.3d 984, 1013 6|| n.29 (9th Cir. 2013) (“[I]t is not enough to rely on vague assertions that discovery will 7\| produce needed, but unspecified, facts.) (internal quotation marks omitted); Margolis v. || Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (“In 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.”) (internal quotation marks omitted); 2 Gensler, Federal 11 || Rules of Civil Procedure, Rules and Commentary, Rule 56, at 173 (2021) (“A general or 12} conclusory assertion that additional discovery is needed will not suffice.”). 13 Accordingly, IT IS ORDERED that: 14 (1) The defendants’ motion for summary judgment (Doc. 35) is granted. 15 (2) Plaintiff's motion to extend discovery (Doc. 42) is denied. 16 (3) The Clerk shall enter judgment accordingly and terminate this action. 17 Dated this 10th day of September, 2021. 18 19 Lom ee” 20 f CC —— Dominic W. Lanza 71 United States District Judge 22 23 24 25 26 27 28

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