1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 CLAUDE CARR, ) Case No. 1:17-cv-01769-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT BE DENIED, WITHOUT

14 TED PRUITT, ) PREJUDICE, PURSUANT TO RULE 56(D) ) 15 Defendant. ) (ECF Nos. 56, 58) ) 16 )

17 Plaintiff Claude Carr is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for summary judgment, filed on April 17, 20 2020. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding on a claim against Ted Pruitt (“Defendant”) for deliberate 24 indifference in violation of the Eighth Amendment. (ECF Nos. 14, 15.) More specifically, Plaintiff 25 alleges that on June 21, 2016, while he was performing his job as a waste manager in the Prison 26 Industry Authority food and beverage shop, supervisor Ted Pruitt compelled Plaintiff to manual lift 27 and stack bags of compacted plastic weighing between 90 to 150 pounds onto pallets without the aid 28 of compacting machinery. Plaintiff performed under threat of discipline and termination. This violated 1 state and federal guidelines, laws, policies, regulations and practices and procedures for maintaining a 2 safe working environment. As a result, Plaintiff sustained injuries to his back, neck, and genital areas, 3 requiring ongoing medical treatment, and continued severe pain, suffering and discomfort. 4 Defendant filed an answer on November 13, 2018. (ECF No. 22.) 5 After an unsuccessful settlement conference, the Court issued an amended discovery and 6 scheduling order on September 4, 2019, setting the discovery deadline of March 23, 2020. (ECF No. 7 46.) 8 On March 24, 2020, at Defendant’s request, the Court extended the discovery deadline to June 9 23, 2020, and the dispositive motion deadline to September 2, 2020. (ECF No. 55.) 10 As previously stated, on April 17, 2020, Plaintiff filed a motion for summary judgment. (ECF 11 No. 56.) Defendant filed an opposition on May 11, 2020. The Court deems the matter submitted and 12 suitable for resolution without the filing of a reply by Plaintiff. 13 II. 14 DISCUSSION 15 Any party may move for summary judgment, and the Court shall grant summary judgment if 16 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 17 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. 18 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed 19 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including 20 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials 21 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot 22 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 23 The Court may consider other materials in the record not cited to by the parties, but it is not required 24 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 25 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 26 Rule 56(d) of the Federal Rules of Civil Procedure provides a procedure by which a party may 27 avoid summary judgment when such party has not had sufficient opportunity to discover affirmative 28 evidence necessary to oppose the motion. See Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1 1987). In particular, Rule 56(d) provides that a court may deny a summary judgment motion and 2 permit the opposing party to conduct discovery where it appears that the opposing party, in the 3 absence of such discovery, is unable to present facts essential to opposing the motion. Fed. R. Civ. P. 4 56(d). A pending discovery motion is sufficient to raise a question as to whether the party opposing 5 summary judgment should be permitted additional discovery, even if no request under Rule 56(d) has 6 been made. See Garrett, 818 F.2d at 1518. 7 The Ninth Circuit has made clear that in cases involving pro se prisoners, summary judgment 8 is not favored when discovery requests for relevant evidence are pending. In particular, the Ninth 9 Circuit has noted: 10 Under Rule 56(f) [ (the predecessor to current Rule 56(d)) ], the court may postpone ruling on a summary judgment motion where the nonmoving party needs “additional discovery to 11 explore ‘facts essential to justify the party’s opposition.’ ” Crawford-El v. Britton, 523 U.S. 574, 599 n.20 (1998) (quoting Fed. R. Civ. Pro. 56(f)). Though the conduct of discovery is 12 generally left to a district court’s discretion, summary judgment is disfavored where relevant 13 evidence remains to be discovered, particularly in cases involving confined pro se plaintiffs. Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988); Harris v. Pate, 440 F.2d 315, 318 14 (7th Cir. 1971) (Stevens, J.) (observing that the combined disabilities of self-representation and confinement hinder a plaintiff’s ability to gather evidence). Thus summary judgment in the 15 face of requests for additional discovery is appropriate only where such discovery would be 16 “fruitless” with respect to the proof of a viable claim. Klingele, 849 F.2d at 412.

17 Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (parallel citations omitted and brackets added). 18 Here, Plaintiff has filed a motion for summary judgment. Defendant contends that further fact 19 discovery is necessary to oppose Plaintiff’s motion. Defendant submits that Plaintiff’s 20 videoconference deposition was set for March 16, 2020. (ECF No. 58, Ex. A ¶ 9.) However, the 21 Friday before the deposition was set to occur, Defendant received a call from the litigation coordinator 22 at the institution where Plaintiff was housed requesting that the deposition be cancelled. (Id.) The 23 institution did not want the court reporter to enter onto prison grounds due to the potential of spreading 24 the COVID-19 virus. (Id.) Therefore, the deposition was cancelled, and it has not yet been re-set due 25 to the COVID-19 pandemic. (Id.) Defendant indicates that on April 1, 2020, Plaintiff has propounded 26 discovery requests, including requests for interrogatories, set three, and requests for production of 27 documents, set three. The responses are due on or before May 15, 2020. 28 1 Defendant sets forth the following information to be identified through discovery: (1) 2 Plaintiff’s activities in connection with the alleged injuries; (2) whether other inmates who worked in 3 the shop were available to assist Plaintiff; (3) whether Plaintiff asked for assistance before 4 endeavoring to lift the compacted items; (4) how Plaintiff has concluded the weight of the items he 5 lifted; and (5) the extent of Plaintiff’s injuries before lifting the compacted materials. (ECF No. 58, 6 Ex. A ¶ 17.) Discovery in this action does not close until June 23, 2020. 7 Defendant therefore requests a continuance to conduct discovery. Given the circumstances, 8 the Court finds that Defendant has shown good cause to allow an opportunity to conduct Plaintiff’s 9 deposition and conduct further discovery. See Anderson v. Liberty Lobby Inc.,477 U.S. 242, 250 n.5 10 (1986); see also Buzayan v. City of Davis, No. 2:06-CV-01576-MCE, 2011 WL 13370466, at *1 (E.D. 11 Cal. July 11, 2011) (delaying motion for partial summary judgment from July 17, 2011 to October 20, 12 2011 to allow four depositions to be taken); Marti v. Padilla, No. 1:07-CV-0066-JMR, 2011 WL 13 319621, at *2 (E.D. Cal. Jan. 28, 2011) (granting extension to file response to motion for summary 14 judgment to permit review of forthcoming discovery). Therefore, because Defendant has not had a 15 sufficient opportunity to discovery information essential to his opposition, Plaintiff’s motion for 16 summary judgment should be denied, without prejudice, as premature. 17 III. 18 RECOMMENDATIONS 19 Based on the foregoing, it is HEREBY RECOMMENDED that: 20 1. Plaintiff’s motion for summary judgment be denied, without prejudice, as premature 21 pursuant to Federal Rule of Civil Procedure 56(d); and 22 2. Plaintiff may re-file a renewed motion for summary judgment after the parties have 23 concluded discovery, if he so desires. See Fed. R. Civ. P. 56(d)(1). 24 These Findings and Recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 26 days after being served with these Findings and Recommendations, the parties may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” The parties are advised that failure to file objections within the wOoOe 4:.f FUME EMAL YAR MUO OI ee YY VI

1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 2 || 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991 3 4 IS SO ORDERED. Al (ee 5 |! Dated: _ May 19, 2020 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28