United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CHRISTOPHER ELDEN WHITE,

Plaintiff,

v.

DR. JOHN KASAWA, primary care

physician; et. al, 

Defendants. /

No. C 08-3781 SI (pr)

ORDER STAYING DISCOVERY AND

EXTENDING DEADLINES

In this pro se prisoner’s civil rights action, plaintiff complains that defendants were

deliberately indifferent to his serious medical needs. Defendants filed a motion for summary

judgment in which they argued, among other things, that they were entitled to qualified

immunity. Plaintiff then moved for a Rule 56(f) continuance of the motion for summary

judgment so he could do additional discovery. Defendants then moved for a stay of discovery.

A. The Summary Judgment Motion Will Not Be Continued For Discovery

Under limited circumstances, consideration of a summary judgment motion may be

delayed so that a non-movant may gather evidence for his opposition. The court may deny or

continue a motion to enable affidavits to be obtained, depositions to be taken, or other discovery

to be undertaken "[i]f a party opposing the motion shows by affidavit that, for specified reasons,

it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(f). The party

requesting the continuance must "identify by affidavit the specific facts that further discovery

Case 3:08-cv-03781-SI Document 27 Filed 01/27/10 Page 1 of 5
United States District Court

For the Northern District of California

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would reveal, and explain why those facts would preclude summary judgment." Tatum v. City

and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

A denial or continuance of the motion for summary judgment is not appropriate here

because plaintiff does not make the requisite showing. Plaintiff does not identify a particular

document or piece of evidence that is essential to his opposition but instead wants discovery in

hopes of finding something that might help him ward off summary judgment. His several

purported discovery needs are now considered. 

Plaintiff states he wants to do discovery "regarding the unamed (sic) doctor mentioned

in the defendant's declaration." Motion For Extension Of Time Pursuant To Rule 56(f), p. 2.

The "unnamed doctor" in the declaration apparently is the cardiologist, but his identity is hardly

a secret as he is identified as Dr. David Puro in the cardiologist's report attached to the

declaration. See Kasawa Decl., ¶ 23 and Exh. A at 49-50. Plaintiff does not describe the

specific facts that further discovery regarding Dr. Puro would reveal and how that would

preclude summary judgment.

Plaintiff also states that he needs discovery of "statements made regarding the actions of

the treating nurse practitioner (Bey) and certain orders she made." Motion For Extension Of

Time Pursuant To Rule 56(f), p. 4. Nurse practitioner Bey is not a defendant in this action and

plaintiff already has his medical records. Plaintiff does not describe the specific facts that further

discovery in this area would reveal and how that would preclude summary judgment.

Plaintiff next states that he needs to do further discovery to refute the allegation that he

was a non-insulin dependent diabetic when he arrived at Salinas Valley State Prison. Id. at 5.

He does not explain why it matters whether he was insulin-dependent or non-insulin-dependent

diabetic but if the difference matters, plaintiff is out of custody and should be able to obtain

information about whether he is insulin-dependent or non-insulin-dependent from a medical care

provider who currently cares for his diabetes-related problems or from a medical care provider

who cared for the problems before he went to prison. Additionally, plaintiff appears to

disbelieve defendants' assertion that he had "hypoglycemia and that this is the reason for the

plaintiff being cut off of insulin and placed on oral medication," and argues that defendants "fail

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to provide any discoverable evidence to support his claim." Id. at 5. This argument is

unpersuasive. Dr. Kasawa's declaration explains that medicines were adjusted in response to

plaintiff's blood glucose readings. Plaintiff's insulin was reduced and then eliminated, and oral

medicines for diabetes were adjusted in response to low blood sugar readings at certain times.

See Kasawa Decl., ¶¶ 3-16. Dr. Kasawa's declaration explains that in addition to contending

with low blood sugar readings at certain times, the medical staff was also addressing the high

blood sugar readings that plaintiff was experiencing at other times by also adjusting the

medicines. The medical records attached to Dr. Kasawa's declaration show numerous blood

sugar readings, numerous mentions of hypoglycemia, and numerous adjustments of various

diabetes medicines. Plaintiff is wrong in his contention that he has not been provided any

discoverable evidence to support the defendants' position vis-a-vis his insulin and other diabetic

medications: he has been provided with Kasawa's declarations and his own medical records.

Plaintiff will need to produce evidence to overcome defendants' showing that there were sound

medical reasons for the decisions they made, but that evidence does not have to come from

defendants. Plaintiff could, for example, find his own expert to explain why the defendants'

course of action was medically unacceptable. 

Plaintiff also contends that he has not received all of his requested discovery material

from defendant Carnes, but does not identify what particular discovery is outstanding and how

that discovery would enable him to avoid summary judgment being granted in defendants' favor.

Plaintiff contends that, as to Dr. Lee, "more discovery is need[ed] as to those policy and

procedures within the (CDCR)." Plaintiffs' Motion For An Extension Of Time Pursuant To Rule

56(f), White Decl., p. 2. However, plaintiff admitted elsewhere that he has already received in

discovery the Chronic Care Program policy guidelines, Chapter 1; diabetes mellitus chronic care

program chapter 3; and several portions of the Salinas Valley State Prison operational procedure

manual. See Plaintiff's Opposition To Defendants' Motion For Stay Of Discovery, pp. 5-6.

Plaintiff does not describe the specific facts that further discovery in this area would reveal and

how that would preclude summary judgment.

Plaintiff has not shown that a continuance should be granted because he has not shown

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that evidence exists that will (not merely might) enable him to present facts essential to justify

his opposition to summary judgment. See Tatum, 441 F.3d at 1100; Chance v. Pac-Tel Teletract,

Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). Although there is authority for the proposition

that Rule 56(f) motions should be granted "fairly freely" when the summary judgment motion

is made early in the case, Burlington Northern Santa Fe Railroad Co. v. Assiniboine and Sioux

Tribes Of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003), that case did not involve

a qualified immunity question, and therefore did not consider the special rule regarding stays of

discovery pending resolution of the qualified immunity question. Requiring discovery which

has only the possibility of eventually leading to evidence that might enable plaintiff to avoid

summary judgment would undermine the purpose of qualified immunity, which provides

"immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is

erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Additionally, plaintiff has received some discovery, e.g., interrogatory responses and copies of

his medical records, and he was not precluded by defendants from retaining his own expert. The

court stresses that this is not a case where a stay stands between plaintiff and known helpful

evidence; instead, this is a case where plaintiff wants to engage in routine discovery that may

or may not lead to helpful evidence. For all these reasons, the Rule 56(f) motion is DENIED.

(Docket # 20.)

B. Discovery Is Stayed

Defendants have moved to stay discovery pending a ruling on their motion for summary

judgment that raises the qualified immunity defense. Plaintiff has opposed the motion. The U.S.

Supreme Court has made it abundantly clear that a district court should stay discovery until the

threshold question of qualified immunity is settled. See Crawford-El v. Britton, 523 U.S. 574,

598 (1998); Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987); Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The motion to stay discovery is GRANTED. (Docket # 21.) All

discovery is stayed until the court rules on the motion for summary judgment. 

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C. New Deadlines

In light of the stay of discovery and denial of plaintiff’s Rule 56(f) motion, plaintiff now

should understand that he will not receive any more discovery before he must file his opposition

to the motion for summary judgment. The court sets the following new deadlines for briefing

on defendants' motion for summary judgment. 

1. Plaintiff must file and serve on defense counsel his opposition to the motion

for summary judgment no later than March 1, 2010. No extension of time will be permitted on

this deadline because plaintiff will have had more than six months to consider defendants’

motion by the time his newly extended deadline arrives. Plaintiff also is reminded that, because

he is now out of custody, the prisoner mailbox rule does not apply to him; his filings must arrive

at the courthouse (not merely be given to prison officials) by the deadline.

2. Defendants must file and serve their reply brief (if any) in support of their

motion no later than March 15, 2010. 

IT IS SO ORDERED.

Dated: January 27, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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