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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DOMINGO MONTAR-MORALES, 9 Plaintiff, Case No. C20-776-TSZ-MLP 10 v. ORDER 11 JON P. PICKERING, et al., 12 Defendants. 13
14 I. INTRODUCTION 15 This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff Domingo Montar-Morales 16 (“Plaintiff”), proceeding pro se and in forma pauperis, is a state prisoner who is currently 17 confined at the Monroe Correctional Complex (“MCC”). This matter is before the Court on 18 Plaintiff’s: (1) motion for extension of time (dkt. # 44); and (2) motion to compel (dkt. # 46). 19 Defendant Corrections Officer Bisson (“Defendant”), the sole remaining Defendant in this 20 matter, filed a response to Plaintiff’s motion to compel (dkt. # 51) but did not file a response to 21 his motion for extension of time. 22 Having considered the parties’ submissions, the governing law, and the balance of the 23 record, the Court hereby ORDERS that: (1) Plaintiff’s motion for extension of time (dkt. # 44) is 1 GRANTED; and (2) Plaintiff’s motion to compel (dkt. # 46) is DENIED, as further explained 2 below. 3 II. DISCUSSION 4 A. Motion for Extension of Time
5 Plaintiff’s motion for extension of time requests a 60-day extension to respond to 6 Defendant Bisson’s pending Motion for Summary Judgment (dkt. # 39) (“Defendant’s Motion”) 7 because Plaintiff has yet to receive requested documents and records from the Washington 8 Department of Corrections’s (“DOC”) Public Records Unit.1 (Dkt. # 44 at 1.) This is the second 9 extension of time Plaintiff has sought on such basis (dkt. # 42), and this Court previously granted 10 Plaintiff’s first extension request (dkt. # 43). Plaintiff argues that his sought records contain 11 necessary information he requires to oppose Defendant’s Motion pursuant to Fed. R. Civ. P. 12 56(d), that DOC requires additional time to produce his sought records, and that he additionally 13 requires an extension due to limited law library access at the MCC and a COVID-19 diagnosis. 14 (Dkt. # 44 at 1-2.) Defendant Bisson did not file a response to Plaintiff’s motion for extension of
15 time. 16 Federal Rule of Civil Procedure 56(d) allows the Court to deny or continue a motion for 17 summary judgment if the defending party establishes that it is unable to properly defend against 18 the motion. Fed. R. Civ. P. 56(d). Under Rule 56(d), a party’s request must be: “(a) a timely 19 application which (b) specifically identifies (c) relevant information, (d) where there is some 20
1 Per his motion to compel, Plaintiff outlines his sought records include: (1) a copy of his release schedule 21 prepared by Program Manager Michael Walker for the MCC lower tier A-pod in June 2017; (2) a copy of any and all grievances received by the grievance coordinator at MCC from January 1, 2016, through 22 December 31, 2017, concerning fighting and violence amongst inmates at MCC; (3) a copy of any and all documents relating to Plaintiff’s prior request for protective custody between May 5, 2015, and July 27, 23 2017; and (4) a copy of any and all documents, including classification documents, related to Plaintiff and Inmate Vazquez’s “STG affiliations.” (Dkt. # 46 at 1-2; see also dkt. # 43 at 2.) 1 basis for believing that the information sought actually exists.” Emp’rs Teamsters Local Nos. 2 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004). The movant 3 “must make clear what information is sought and how it would preclude summary judgment.” 4 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998).
5 Here, the Court finds an extension of Plaintiff’s time to respond to Defendant’s Motion is 6 appropriate. This Court previously documented Plaintiff’s efforts in seeking to obtain 7 information from the DOC based on his previous extension requests, first motion to compel, and 8 a prior request to serve additional interrogatories. (See dkt. ## 32, 38, 43.) Per a declaration 9 submitted by DOC Legal Liaison Shari Hall, DOC indicates it intends to produce the remainder 10 of Plaintiff’s requested records by February 10, 2022. (Dkt. ## 45 at 4; 52 at ¶ 8.) Pursuant to 11 Rule 56(d), the Court finds that Plaintiff’s request for an extension is timely and identifies 12 relevant information, and that there is a sufficient likelihood such information exists and will be 13 produced by DOC. Moreover, it appears Plaintiff needs additional time due to limited law library 14 access at the MCC and his recent COVID-19 diagnosis. (See dkt. # 44 at 1-2.) Therefore, based
15 on Plaintiff’s motion for extension of time and that opposing counsel has no opposition, the 16 Court finds good cause to delay the adjudication of Defendant’s Motion by an additional 60 17 days. 18 B. Motion to Compel 19 Next, Plaintiff moves the Court for an order compelling Defendant to produce his above 20 requested records due to the DOC’s alleged delayed production. (Dkt. # 46 at 1.) Plaintiff argues 21 DOC has consistently misinterpreted, delayed, and denied his previous requests for the records 22 from August 23, 2021, and October 25, 2021. (Id. at 2.) On August 3, 2021, this Court denied 23 Plaintiff’s first motion to compel seeking the requested records. (Dkt. # 32 at 4-6.) 1 Defendant Bisson filed a response arguing Plaintiff’s motion to compel should be denied 2 because DOC has been responsive to his requests. (Dkt. # 51 at 2-3.) To that end, Ms. Hall’s 3 declaration submits that DOC informed Plaintiff there were no records responsive to his request 4 for a copy of his “release schedule” on February 2, 2022. (Dkt. # 52 at ¶ 5.) Ms. Hall further
5 submits that Plaintiff’s request for “grievances, reports from officers of fights, 6 records/documents of medical conditions due to fights” was previously not provided due to 7 Plaintiff’s failure to remit payment for the production, and that due to his failure to pay, that 8 specific request was considered closed as of September 1, 2021. (Id. at ¶ 6.) Ms. Hall notes that 9 DOC provided Plaintiff with records pursuant to his request for “incident reports, serious 10 infractions, separates, facility prohibitions, and all letters re: [Plaintiff]” on January 26, 2022. (Id. 11 at ¶ 7.) Finally, Ms. Hall notes DOC provided Plaintiff with records responsive to his request for 12 “records related to fights or violence, policies to staff, documents related to release schedules, 13 protective custody request records, names of DOC staff, and STG records re: [Plaintiff] and 14 Javier Velasquez, DOC # 370614” in productions on October 20, 2021, on December 9, 2021,
15 and that a third production is forthcoming no later than February 10, 2022. (Id. at ¶ 8.) 16 Federal Rule of Civil Procedure 37(a) allows a party to move for disclosure or discovery 17 to be compelled. A party served with a discovery request under Rule 34 is required to produce, 18 or allow inspection of, responsive items “in the responding party’s possession, custody, 19 or control.” Fed. R. Civ. P. 34(a)(1).
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DOMINGO MONTAR-MORALES, 9 Plaintiff, Case No. C20-776-TSZ-MLP 10 v. ORDER 11 JON P. PICKERING, et al., 12 Defendants. 13
14 I. INTRODUCTION 15 This is a 42 U.S.C. § 1983 prisoner civil rights action. Plaintiff Domingo Montar-Morales 16 (“Plaintiff”), proceeding pro se and in forma pauperis, is a state prisoner who is currently 17 confined at the Monroe Correctional Complex (“MCC”). This matter is before the Court on 18 Plaintiff’s: (1) motion for extension of time (dkt. # 44); and (2) motion to compel (dkt. # 46). 19 Defendant Corrections Officer Bisson (“Defendant”), the sole remaining Defendant in this 20 matter, filed a response to Plaintiff’s motion to compel (dkt. # 51) but did not file a response to 21 his motion for extension of time. 22 Having considered the parties’ submissions, the governing law, and the balance of the 23 record, the Court hereby ORDERS that: (1) Plaintiff’s motion for extension of time (dkt. # 44) is 1 GRANTED; and (2) Plaintiff’s motion to compel (dkt. # 46) is DENIED, as further explained 2 below. 3 II. DISCUSSION 4 A. Motion for Extension of Time
5 Plaintiff’s motion for extension of time requests a 60-day extension to respond to 6 Defendant Bisson’s pending Motion for Summary Judgment (dkt. # 39) (“Defendant’s Motion”) 7 because Plaintiff has yet to receive requested documents and records from the Washington 8 Department of Corrections’s (“DOC”) Public Records Unit.1 (Dkt. # 44 at 1.) This is the second 9 extension of time Plaintiff has sought on such basis (dkt. # 42), and this Court previously granted 10 Plaintiff’s first extension request (dkt. # 43). Plaintiff argues that his sought records contain 11 necessary information he requires to oppose Defendant’s Motion pursuant to Fed. R. Civ. P. 12 56(d), that DOC requires additional time to produce his sought records, and that he additionally 13 requires an extension due to limited law library access at the MCC and a COVID-19 diagnosis. 14 (Dkt. # 44 at 1-2.) Defendant Bisson did not file a response to Plaintiff’s motion for extension of
15 time. 16 Federal Rule of Civil Procedure 56(d) allows the Court to deny or continue a motion for 17 summary judgment if the defending party establishes that it is unable to properly defend against 18 the motion. Fed. R. Civ. P. 56(d). Under Rule 56(d), a party’s request must be: “(a) a timely 19 application which (b) specifically identifies (c) relevant information, (d) where there is some 20
1 Per his motion to compel, Plaintiff outlines his sought records include: (1) a copy of his release schedule 21 prepared by Program Manager Michael Walker for the MCC lower tier A-pod in June 2017; (2) a copy of any and all grievances received by the grievance coordinator at MCC from January 1, 2016, through 22 December 31, 2017, concerning fighting and violence amongst inmates at MCC; (3) a copy of any and all documents relating to Plaintiff’s prior request for protective custody between May 5, 2015, and July 27, 23 2017; and (4) a copy of any and all documents, including classification documents, related to Plaintiff and Inmate Vazquez’s “STG affiliations.” (Dkt. # 46 at 1-2; see also dkt. # 43 at 2.) 1 basis for believing that the information sought actually exists.” Emp’rs Teamsters Local Nos. 2 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004). The movant 3 “must make clear what information is sought and how it would preclude summary judgment.” 4 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998).
5 Here, the Court finds an extension of Plaintiff’s time to respond to Defendant’s Motion is 6 appropriate. This Court previously documented Plaintiff’s efforts in seeking to obtain 7 information from the DOC based on his previous extension requests, first motion to compel, and 8 a prior request to serve additional interrogatories. (See dkt. ## 32, 38, 43.) Per a declaration 9 submitted by DOC Legal Liaison Shari Hall, DOC indicates it intends to produce the remainder 10 of Plaintiff’s requested records by February 10, 2022. (Dkt. ## 45 at 4; 52 at ¶ 8.) Pursuant to 11 Rule 56(d), the Court finds that Plaintiff’s request for an extension is timely and identifies 12 relevant information, and that there is a sufficient likelihood such information exists and will be 13 produced by DOC. Moreover, it appears Plaintiff needs additional time due to limited law library 14 access at the MCC and his recent COVID-19 diagnosis. (See dkt. # 44 at 1-2.) Therefore, based
15 on Plaintiff’s motion for extension of time and that opposing counsel has no opposition, the 16 Court finds good cause to delay the adjudication of Defendant’s Motion by an additional 60 17 days. 18 B. Motion to Compel 19 Next, Plaintiff moves the Court for an order compelling Defendant to produce his above 20 requested records due to the DOC’s alleged delayed production. (Dkt. # 46 at 1.) Plaintiff argues 21 DOC has consistently misinterpreted, delayed, and denied his previous requests for the records 22 from August 23, 2021, and October 25, 2021. (Id. at 2.) On August 3, 2021, this Court denied 23 Plaintiff’s first motion to compel seeking the requested records. (Dkt. # 32 at 4-6.) 1 Defendant Bisson filed a response arguing Plaintiff’s motion to compel should be denied 2 because DOC has been responsive to his requests. (Dkt. # 51 at 2-3.) To that end, Ms. Hall’s 3 declaration submits that DOC informed Plaintiff there were no records responsive to his request 4 for a copy of his “release schedule” on February 2, 2022. (Dkt. # 52 at ¶ 5.) Ms. Hall further
5 submits that Plaintiff’s request for “grievances, reports from officers of fights, 6 records/documents of medical conditions due to fights” was previously not provided due to 7 Plaintiff’s failure to remit payment for the production, and that due to his failure to pay, that 8 specific request was considered closed as of September 1, 2021. (Id. at ¶ 6.) Ms. Hall notes that 9 DOC provided Plaintiff with records pursuant to his request for “incident reports, serious 10 infractions, separates, facility prohibitions, and all letters re: [Plaintiff]” on January 26, 2022. (Id. 11 at ¶ 7.) Finally, Ms. Hall notes DOC provided Plaintiff with records responsive to his request for 12 “records related to fights or violence, policies to staff, documents related to release schedules, 13 protective custody request records, names of DOC staff, and STG records re: [Plaintiff] and 14 Javier Velasquez, DOC # 370614” in productions on October 20, 2021, on December 9, 2021,
15 and that a third production is forthcoming no later than February 10, 2022. (Id. at ¶ 8.) 16 Federal Rule of Civil Procedure 37(a) allows a party to move for disclosure or discovery 17 to be compelled. A party served with a discovery request under Rule 34 is required to produce, 18 or allow inspection of, responsive items “in the responding party’s possession, custody, 19 or control.” Fed. R. Civ. P. 34(a)(1). In the Ninth Circuit, “[a] party may be ordered to produce a 20 document in the possession of a non-party entity if that party has a legal right to obtain the 21 document or has control over the entity who is in possession of the document.” Campos-Eibeck 22 v. C R Bard Inc., 2020 WL 835305, at *2 (S.D. Cal. Feb 20, 2020) (internal quotations and 23 citation omitted). 1 As noted in the Court’s previous order denying Plaintiff’s first motion to compel, 2 Plaintiff’s sought discovery is not in the possession, custody, or control of Defendant Bisson, and 3 therefore, his request is still properly directed at DOC. (See dkt. # 32 at 5-6.) Based on the 4 Court’s review of the record, it is clear DOC has been responsive to Plaintiff’s requests and that
5 he still remains in the process of receiving records. (Dkt. # 52 at ¶¶ 3-8.) Accordingly, Plaintiff’s 6 motion to compel is denied. 7 III. CONCLUSION 8 For the foregoing reasons, the Court hereby ORDERS: 9 (1) Plaintiff’s motion for extension of time (dkt. # 44) is GRANTED, and Plaintiff’s 10 motion to compel discovery (dkt. # 46) is DENIED. 11 (2) Defendant’s Motion (dkt. # 39) is RE-NOTED on the Court’s calendar for 12 consideration on April 8, 2022. Plaintiff’s response brief to Defendant’s Motion is due on April 13 4, 2022, and Defendant’s reply brief is due on the noting date. 14 (3) The Clerk is directed to send copies of this Order to the parties and to the
15 Honorable Thomas S. Zilly. 16 Dated this 4th day of February, 2022. 17 A 18 MICHELLE L. PETERSON United States Magistrate Judge 19
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