United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

REGINALD B. DeJOHNETTE,

Plaintiff,

 v.

SUSAN HUBBARD, et al.,

Defendants. _______________________________ 

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No. C 08-4844 MMC (PR) 

ORDER DENYING PLAINTIFF’S

MOTIONS FOR RULE 56(f)

CONTINUANCE, RULE 35

PHYSICAL EXAMINATION, AND

PRELIMINARY INJUNCTION;

SCHEDULING OPPOSITION TO

DEFENDANTS’ MOTION TO

DISMISS

(Docket Nos. 35, 38, 41, 43, 44)

On October 22, 2008, plaintiff, a California prisoner proceeding pro se, filed the

above-titled civil rights action under 42 U.S.C. § 1983, alleging deliberate indifference to his

serious medical needs by prison and medical officials at Salinas Valley State Prison

(“SVSP”). On September 4, 2009, defendants moved to dismiss the complaint under the

unenumerated portion of Federal Rule of Civil Procedure 12(b), on the ground plaintiff has

not exhausted his administrative remedies and, alternatively, under Rule 12(b)(6) on the

ground plaintiff’s allegations fail to state a claim upon which relief may be granted. 

According to the briefing schedule set in the order of service, plaintiff’s opposition to

defendants’ motion was due thirty days after defendants filed their motion. Now pending

before the Court are plaintiff’s motion for a continuance to file his opposition, under Rule

56(f), and motion for a court order for a physical examination, under Rule 35. Also before

Case 3:08-cv-04844-MMC Document 46 Filed 06/29/10 Page 1 of 6
United States District Court

For the Northern District of California

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the Court is plaintiff’s motion for a preliminary injunction. Defendants have opposed the

motions. 

A. Motions for Continuance and Court-Ordered Physical Examination

As noted, plaintiff has moved for a Rule 56(f) continuance to file his opposition to

defendants’ motion to dismiss. Specifically, plaintiff states he is seeking to conduct

discovery in order to raise a triable issue with respect to whether defendants acted with

deliberate indifference to his serious medical needs. In furtherance thereof, plaintiff asks the

Court to order he be given a physical examination by an internist at the University of

California, and that the date of his opposition to the motion to dismiss be continued until he

has received the internist’s written report; additionally, plaintiff seeks discovery to dispute

the veracity of a medical report on which defendants rely and which states plaintiff has

refused proffered medical treatment and, due to his “high level of paranoia and manic

behavior,” he is unlikely to receive “treatment, testing or medication” for his Hepatitis C. 

(Mot. to Dismiss at 13:3-7.) 

Rule 56(f) is a subsection of the rules governing summary judgment motions and

provides, in relevant part:

Should it appear from the affidavits of a party opposing the motion [for

summary judgment] that the party cannot for reasons stated present by affidavit

facts essential to justify the party’s opposition, the court may refuse the

application for judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or may make such

other order as is just.

Fed. R. Civ. P. 56(f). 

As noted, defendants have filed a motion to dismiss. Consequently, Rule 56(f) is not

applicable to the instant proceedings. Nor, as set forth below, is plaintiff’s request for a

continuance to conduct discovery prior to filing an opposition to such motion warranted. 

As an initial matter, plaintiff has not shown the type of factual development he seeks

is relevant to the issue of whether certain of plaintiff’s claims are unexhausted. In particular,

the only evidence plaintiff must present to successfully oppose such motion is evidence that

shows either that the claims are exhausted or that some legally-recognized exception to

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exhaustion applies. As was explained to plaintiff in the Court’s order of service: 

In the event defendants file an unenumerated motion to dismiss under Rule

12(b), plaintiff is hereby cautioned as follows:

The defendants have made a motion to dismiss pursuant to Rule 12(b) of the

Federal Rules of Civil Procedure, on the ground you have not exhausted your

administrative remedies. The motion will, if granted, result in the dismissal of

your case. When a party you are suing makes a motion to dismiss for failure to

exhaust, and that motion is properly supported by declarations (or other sworn

testimony) and/or documents, you may not simply rely on what your complaint

says. Instead, you must set out specific facts in declarations, depositions,

answers to interrogatories, or documents, that contradict the facts shown in the

defendant’s declarations and documents and show that you have in fact

exhausted your claims. If you do not submit your own evidence in opposition,

the motion to dismiss, if appropriate, may be granted and the case dismissed.

(Order, filed April 6, 2009, at 4:19-5:2 (footnote omitted).)

Additionally, the court’s review of a motion to dismiss under Rule 12(b)(6) is limited

to the contents of the complaint, see Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55

(9th Cir. 1994), including documents physically attached to the complaint or documents on

which the complaint necessarily relies and whose authenticity is not contested. See Lee v.

County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Consequently, a pro se plaintiff

who has alleged well-pleaded facts supporting a claim for relief “can simply rest on the

assumed truthfulness and liberal construction afforded his complaint.” See Curtis v.

Bembenek, 48 F.3d 281, 287 (7th Cir. 1995). 

Next, plaintiff has not shown he is entitled to a court order for a physical examination

pursuant to Rule 35, which provides in relevant part:

The court where the action is pending may order a party whose mental or

physical condition – including blood group – is in controversy to submit to a

physical or mental examination by a suitably licensed or certified examiner.

Fed. R. Civ. P. 35(a)(1). The order may be made only on motion for good cause shown. Id.

35(a)(2)((A). 

In response to plaintiff’s motion, defendants argue that plaintiff’s physical condition is

not in controversy in the instant action because it is undisputed that plaintiff suffers from

Hepatitis C. Rather, defendants submit, the only question at issue is whether defendants

acted with deliberate indifference to plaintiff’s serious medical needs by failing to properly

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Together with his motion, plaintiff has filed a motion for leave to exceed the court’s

twenty-five page limit. The motion will be granted.

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treat his illness. Although plaintiff argues his current physical condition is in controversy

because his claims include an allegation of physical injury resulting from defendants’

inadequate medical care, the Court, given the pendency of defendants’ motion to dismiss the

complaint on procedural grounds, need not at this time resolve the parties dispute as to the

propriety of an order under Rule 35.

Accordingly, plaintiff’s motions for a Rule 56(f) continuance and for a court-ordered

physical examination under Rule 35 will be denied without prejudice to refiling if plaintiff’s

complaint survives defendants’ motion to dismiss and defendants thereafter file a motion for

summary judgment. Plaintiff will, however, be granted one further extension of time to file

opposition to defendants’ motion to dismiss. 

B. Motion for Preliminary Injunction1

At the time plaintiff initially filed his motion for a preliminary injunction, he was

incarcerated at the California State Prison, Los Angeles County (“LAC”). By way of such

motion, plaintiff sought an order restraining prison officials at LAC from seizing plaintiff’s

legal mail, as well as orders directing that a medical hold be placed on plaintiff pending

resolution of his motion for a Rule 35 physical examination, that prison officials at LAC

provide him with prescription glasses, that his medical plan be restored, and that he not be

subjected to retaliation. Subsequently, plaintiff was transferred back to SVSP, the location at

which the claims in the instant action arose and where he currently resides. Plaintiff

thereafter wrote this Court, stating he believes prison officials at SVSP will continue to

retaliate against him by housing him in “the hole” and failing to provide him with access to

his legal property. He seeks an order that he be “housed properly” and that SVSP prison

officials give him his legal and other property. (Notice of Change of Address (Docket No.

44) at 5). 

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest.”

Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008). 

At the outset, the Court notes that plaintiff’s earlier request for preliminary injunctive

relief, made by plaintiff while he was incarcerated at LAC, is now moot, as plaintiff no

longer is incarcerated at such facility. Further, with respect to the more recent request,

specifically, that the Court direct he be moved from “the hole” at SVSP back to the general

population, in order to facilitate his access to his legal property for purposes of litigating the

instant action, plaintiff has made no showing as to a likelihood of irreparable harm if such

request is not granted.

Additionally, the Court finds that, at this stage of the proceedings, plaintiff has not

shown he is likely to succeed on the merits of his claim that defendants acted with deliberate

indifference to his serious medical needs by failing to properly treat him for Hepatitis C. In

particular, the evidence before the Court at this time shows that during the approximately

fifteen-month period wherein plaintiff was under the medical care of the defendants to the

instant action, i.e., from May 2007 through August 2008, he was seen by his primary

physician and numerous medical specialists on at least twenty-six occasions. (Defs.’ Opp.

Mot. Prelim. Inj. at 5.) While such evidence is not conclusive of defendants’ subjective state

of mind as to plaintiff’s treatment, it is highly probative thereof and gives rise to a reasonable

inference that defendants did not act with deliberate indifference to plaintiff’s serious

medical needs. Further, as plaintiff has not yet opposed defendants’ motion to dismiss the

complaint on procedural grounds, there is no evidence presently before the Court that

suggests defendants will not prevail on such motion.

Accordingly, plaintiff’s motion for a preliminary injunction will be denied.

CONCLUSION

For the reasons stated above, the Court orders as follows:

1. Plaintiff’s motion for a Rule 56(f) continuance is hereby DENIED. 

2. Plaintiff’s motion for a Rule 35 court-ordered physical examination is hereby

DENIED.

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3. Plaintiff’s motion to exceed the twenty-five page limit is hereby GRANTED. 

4. Plaintiff’s motion for a preliminary injunction is hereby DENIED.

5. Plaintiff is hereby afforded an extension of time to file opposition to defendants’

motion to dismiss.

 (a) Within thirty (30) days of the date this order is filed, plaintiff shall file with the

court and serve on defendants his opposition to defendants’ motion to dismiss.

 (b) Defendants shall file a reply brief no later than fifteen (15) days after plaintiff’s

opposition to the motion to dismiss is filed. 

 (c) The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the Court so orders at a later date. 

This order terminates Docket Nos. 35, 38, 41, 43 and 44.

 IT IS SO ORDERED.

DATED: June 29, 2010 _________________________

MAXINE M. CHESNEY

United States District Judge

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