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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

LEWIS JOHN #341735,

Plaintiff,

v.

DEPUTY MARK C. BERRY, DEPUTY

KRISTAIN NORDSTROM, DEPUTY

HARDESTY,

Defendants.

CASE NO. C05-5694RJB-KLS

ORDER ADOPTING REPORT

AND RECOMMENDATION

AND DISMISSING CASE

The Court, having reviewed defendants’ converted motion for summary judgment (Dkt. 24 and

31), the Report and Recommendation of United States Magistrate Judge Karen L. Strombom, objections

to the Report and Recommendation (Dkt. 46), and the remaining record, does hereby find and ORDER:

(1) The Court adopts the comprehensive and well-reasoned Report and Recommendation.

(2) In his motion to dismiss the summary judgment motion (Dkt. 38) and in his objections to

the Report and Recommendation (Dkt. 46), plaintiff contends that he should be afforded the

opportunity to conduct discovery before the motion for summary judgment is considered by

the court. Fed.R.Civ.P. 56(f) provides as follows:

When Affidavits are Unavailable. Should it appear from the affidavits of a party

opposing the motion 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.

Case 3:05-cv-05694-RJB Document 48 Filed 12/18/06 Page 1 of 2
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ORDER

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In order to continue a summary judgment motion under Fed.R.Civ.P. 56(f), a party so

requesting must show that he or she diligently pursued previous discovery opportunities,

and must also show how allowing additional discovery would preclude summary judgment.

Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir.1994). Plaintiff has

made no showing that or how allowing discovery would preclude summary judgment; he

merely states that he has a legal right to conduct discovery before summary judgment is

granted. Significantly, plaintiff provided no affidavits or declarations executed by himself 

to contradict the evidence submitted by defendants regarding being hit on the head with the

flashlight and being required to walk to the patrol car with an injured knee; he has not

shown how discovery would have been necessary to allow him to obtain such evidence. 

Further, as noted by defendants in their response to plaintiff’s objections, plaintiff had nine

months from filing this complaint to conduct discovery; the documents plaintiff apparently

requests would not assist him in meeting his burden under Fed.R.Civ.P. 56 because those

documents at most would reflect on credibility of certain defendants. See Dkt. 47. 

Accordingly, the court should not refuse the application for judgment or order a

continuance.

(3) Defendants’ motion for summary judgment (Dkt. 24 and 31) is GRANTED.

(4) Plaintiff’s complaint and all remaining motions currently pending before the Court hereby

are DISMISSED.

(5) The Clerk is directed to send copies of this Order to plaintiff, defendants’ counsel and

Magistrate Judge Karen L. Strombom.

DATED this 18th day of December, 2006.

ARobert J. Bryan

United States District Judge 

Case 3:05-cv-05694-RJB Document 48 Filed 12/18/06 Page 2 of 2