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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

G. MICHAEL STRAUSS,

Plaintiff,

v.

DONNA HAMILTON, et al.,

Defendants.

Case No. C05-5772FDB

ORDER DENYING PLAINTIFF’S

MOTION TO OPEN DISCOVERY

AND DENY OR STAY

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

This Civil Rights action has been referred to United States Magistrate Judge Karen L.

Strombom pursuant to 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Currently pending on the

court’s docket for consideration on May 12, 2006, is defendants’ motion for summary judgment. 

(Dkt. # 16). Before the court today is plaintiff’s motion to open discovery and deny or stay

defendants’ motion for summary judgment. (Dkt. # 18). Having considered the motion, response of

defendants, plaintiff’s reply, and the balance of the record, the court finds that plaintiff’s motion

should be DENIED.

Rule 56(f) permits continuance of a motion for summary judgment only where the moving

party shows by affidavit that the party cannot present facts essential to justify the party’s opposition

and states the reasons therefore. Fed.R.Civ.P. 56(f). The moving party has the burden to set forth

sufficient facts to show that the evidence sought exists. Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir.

1995). The moving party must demonstrate that “additional discovery would uncover specific facts

Case 3:05-cv-05772-FDB Document 21 Filed 05/11/06 Page 1 of 2
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26 ORDER - 2

which would preclude summary judgment.” See Maljack Prods., Inc. v. Good Times Home Video

Corp., 81 F.3d 881, 888 (9th Cir. 1996). Denial of a Rule 56(f) application is proper where it is clear

that the evidence sought is almost certain nonexistent or is the object of pure speculation. Terrell v.

Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).

Plaintiff alleges that Defendant Hamilton violated his rights by taking steps to expedite the

delivery of a package of pleadings addressed to her before it entered the U.S. Mail. Defendants

admit in their answer that Defendant Hamilton took steps to expedite the delivery of a package of

pleadings plaintiff addressed to her before it entered the U.S. Mail. Therefore, the facts are not in

dispute. The only question left for determination is whether Defendant Hamilton’s action constituted

a constitutional violation which caused harm to plaintiff. 

Plaintiff states that it would be improper to grant summary judgment without first allowing

discovery and that given more time to conduct discovery, genuine issues of material fact will be

found. Plaintiff fails, however, to allege violation of a constitutional right as required by 42 U.S.C. §

1983, and fails to show how discovery will produce evidence that will establish such a violation. 

Plaintiff also fails to set forth with particularly the information he hopes to gain through additional

discovery. Plaintiff has presented no evidence that discovery will uncover facts that, even if

established, would preclude summary judgment.

Plaintiff’s motion to open discovery and deny or stay defendant’s motion for summary

judgment (Dkt. # 18) is DENIED.

DATED this 11th day of May, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:05-cv-05772-FDB Document 21 Filed 05/11/06 Page 2 of 2