Montar-Morales v. Pickering

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Plaintiff, Case No. C20-776-TSZ-MLP 10 v. ORDER 11 JON P. PICKERING, et al., 12 Defendants. 13 This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff Domingo Montar-Morales 14 (“Plaintiff”), proceeding pro se, is a state prisoner who is currently confined at the Monroe 15 Correctional Complex (“MCC”). Currently before the Court is Plaintiff’s “Motion for an 16 Extension of Time to Respond to Defendant’s Motion to Dismiss” (“Plaintiff’s Motion”). (Dkt. 17 # 42.) 18 Plaintiff’s Motion requests an extension of time to respond to Defendant Bisson’s 19 pending Motion for Summary Judgment (dkt. # 39) (“Defendant’s Motion), or that Defendant’s 20 Motion be stayed, until Plaintiff has obtained previously requested documents and records from 21 the Washington Department of Corrections (“DOC”). (Dkt. # 42 at 1.) Plaintiff argues that his 22 sought records and documents contain necessary information that he requires to oppose 23 1 Defendant’s Motion.1 (Id. at 2-3.) Specifically, Plaintiff outlines that his sought records include: 2 (1) a copy of his release schedule that Defendant Bisson allegedly followed in allowing Plaintiff 3 and Inmate Vazquez out of their cells; (2) a copy of any and all grievances received by the 4 grievance coordinator at MCC from January 1, 2016, through December 31, 2017, concerning

5 fighting and violence amongst inmates at MCC; (3) a copy of any and all documents relating to 6 Plaintiff’s prior request for protective custody between May 5, 2015, and July 27, 2017; and (4) a 7 copy of any and all documents, including classification documents, related to Plaintiff and 8 Inmate Vazquez’s “STG affiliations.” (Id.) Defendant Bisson did not file a response to Plaintiff’s 9 Motion. 10 Federal Rule of Civil Procedure 56(d) allows the Court to deny or continue a motion for 11 summary judgment if the defending party establishes that it is unable to properly defend against 12 the motion. Fed. R. Civ. P. 56(d). Under Rule 56(d), a party’s request must be: “(a) a timely 13 application which (b) specifically identifies (c) relevant information, (d) where there is some 14 basis for believing that the information sought actually exists.” Emp’rs Teamsters Local Nos.

15 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004). The movant 16 “must make clear what information is sought and how it would preclude summary judgment.” 17 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). 18 Here, the Court finds that an extension of Plaintiff’s time to respond to Defendant’s 19 Motion is reasonable. This Court has previously documented Plaintiff’s efforts in seeking to 20

21 1 Plaintiff’s Motion seeks reliefs pursuant to Rule 56(f) (Dkt. # 42 at 1.) However, Plaintiff’s request for an extension of time to respond to Defendant’s Motion is more appropriately considered under Rule 56(d) 22 after the 2010 amendments to the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to 23 justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”). 1 obtain information from DOC based on a previous extension of time request to complete 2 discovery and a previous request to serve additional interrogatories. (See dkt. ## 32, 38; see also 3 dkt. # 42, Ex. A at 4-9, Ex. B at 5-6.) Based on the Court’s review of exhibits submitted with 4 Plaintiff’s Motion, it appears that Plaintiff still has yet to receive his requested information from

5 DOC. (See dkt. # 42, Ex. A at 4-5.) Plaintiff’s most recent correspondence with DOC from 6 November 2021 indicates that DOC intends to produce the remainder of Plaintiff’s requested 7 documents by December 29, 2021. (Id. at 4.) In addition, it appears Plaintiff sent separate 8 correspondence regarding an incomplete production from October 25, 2021. (Id. at 1-3.) The 9 Court therefore finds good cause to delay the adjudication of Defendant’s Motion pursuant to 10 Rule 56(d) because Plaintiff’s request for an extension is timely, identifies relevant information 11 he has yet to receive, and because there is a sufficient likelihood that such information exists and 12 will be produced by DOC. 13 Accordingly, this Court hereby ORDERS: 14 (1) Plaintiff’s Motion (dkt. # 42) is GRANTED.

15 (2) Defendant’s Motion (dkt. # 39) is RE-NOTED on the Court’s calendar for 16 consideration on February 4, 2022. Plaintiff’s response brief to Defendant’s Motion is due on 17 January 31, 2022, and Defendant’s reply brief is due on the noting date. 18 (3) The Clerk is directed to send copies of this Order to the parties and to the 19 Honorable Thomas S. Zilly. 20 Dated this 29th day of November, 2021. 21 A United States Magistrate Judge 23