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ORDER RE: REQUEST FOR DISCOVERY

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. CASE,

Plaintiff,

v.

TERI HANSEN, et al.,

Defendants.

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CASE NO. C05-2073-JCC-MAT

ORDER RE: REQUEST FOR

DISCOVERY AND TO EXTEND

DEADLINE 

The Court construes plaintiff’s objections to the Court’s February 5, 2007 Minute Order

as a motion for reconsideration and as a request for an additional extension of time to respond to

defendants’ pending motion for summary judgment. (See Dkt. 42.) Before addressing the merits

of those requests, the Court finds that a recitation of the history of this case would be helpful.

Plaintiff lodged his complaint on December 14, 2005, while being held as a pretrial

detainee at the King County Department of Adult and Juvenile Detention, Regional Justice Center

(RJC) in Kent, Washington. (Dkt. 1.) All three defendants named in plaintiff’s complaint are

current or former employees of the RJC. On July 7, 2006, plaintiff was convicted and sentenced

for the crime of Murder in the Second Degree in King County Superior Court. (See Dkt. 33.)

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ORDER RE: REQUEST FOR DISCOVERY

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The Court set a May 30, 2006 deadline for completion of discovery and a July 3, 2006

deadline for the filing of dispositive motions. (Dkt. 16.) Following a request from defendants, the

Court extended the dispositive motion deadline by four weeks, to July 31, 2006. (Dkts. 19 & 21.)

Defendants timely filed a motion for summary judgment on that date, setting a noting date for

consideration of their motion on August 25, 2006. (Dkt. 22.)

On August 28, 2006, the Court received a letter from plaintiff in which he indicated he had

received defendants’ summary judgment motion on August 1, 2006, but was subsequently

transferred to the Washington Corrections Center in Shelton, Washington on August 8, 2006.

(Dkt. 25.) He averred that he was only allowed to keep one box of his legal materials in his cell

and had since been denied regular access to the remaining eight boxes. The Court thereafter

granted plaintiff’s request for an extension and renoted defendants’ summary judgment motion for

consideration on September 29, 2006. (Dkt. 28.)

With a letter dated September 21, 2006, plaintiff informed the Court that he had again been

transferred, to the Washington State Penitentiary in Walla Walla, Washington, and remained

without access to his legal materials. (Dkt. 29.) The Court granted plaintiff’s request for a second

extension. (Dkt. 32.) However, the Court found itself unable to renote defendants’ summary

judgment motion until it received further information regarding plaintiff’s access to his legal

materials and directed defendants to address this issue. In response, defendants indicated they had

no control over petitioner once he left their custody and that they had no objection to an extension

of the deadline for consideration of their dispositive motion. (Dkt. 33.) The Court subsequently

renoted defendants’ summary judgment motion for consideration on January 12, 2007. (Dkt. 34.)

In a letter dated January 2, 2007, plaintiff submitted another request for an extension.

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ORDER RE: REQUEST FOR DISCOVERY

AND TO EXTEND DEADLINE 

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(Dkt. 36.) He requested an extension to February 9, 2007, and indicated he was then still

restricted to keeping one out of his now ten boxes total of legal materials in his cell. He assured

the Court he would submit a response by no later than February 5, 2007. The Court granted this

third request for an extension, renoting defendants’ summary judgment motion for consideration

on February 9, 2007, but indicating that no further extensions would be granted. (Dkt. 38.)

With a letter dated January 27, 2007, plaintiff requested another extension. (Dkt. 39.) He

sought a continuance under Federal Rule of Civil Procedure 56(f), seeking to conduct additional

discovery and to obtain other evidence. He indicated his access to his documents was improving

and sought forty-five days to conduct discovery and to respond to defendants’ motion. The

Court, upon realizing plaintiff drafted this request prior to receiving the last Order granting an

extension and upon concluding that a response to the summary judgment motion would be helpful,

granted plaintiff an additional fourteen days to respond to the motion and set a final noting date

of February 23, 2007. (Dkt. 40.) The Court did not address plaintiff’s request for a Rule 56(f)

continuance.

By letter dated February 7, 2007, plaintiff informed the Court that he had been moved for

a third time, on February 6, 2007, to the Airway Heights Corrections Center in Airway Heights,

Washington. (Dkt. 41.) Shortly thereafter, plaintiff filed the motion currently under consideration,

requesting review of the Court’s decision to grant a fourth extension, but failing to address his

request for Rule 56(f) discovery. (Dkt. 42.) He indicates in his motion that, as of February 20,

2007, he has only one box of legal materials in his possession, but no documents pertaining to this

case.

Now, taking the above history and plaintiff’s current motion into consideration, the Court

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ORDER RE: REQUEST FOR DISCOVERY

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finds and concludes as follows:

(1) The Court construes plaintiff’s motion as a request for reconsideration on the issue

of a Rule 56(f) continuance. Because the Court did not specifically address this issue in its Order

granting plaintiff a fourth extension, it does so now.

Rule 56(f) permits a party to request a continuance to conduct further discovery in order

to obtain evidence to oppose a summary judgment motion. The rule provides:

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.

Fed. R. Civ. P. 56(f). Summary dismissal is generally disfavored “where relevant evidence remains

to be discovered.” Klingele v. Eikenberry, 849 F.3d 409, 412 (9th Cir. 1988). However, a party

opposing a summary judgment motion must “show that additional discovery would uncover

specific facts which would preclude summary judgment.” Maljack Prods., Inc. v. Goodtimes

Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996). Also, a Rule 56(f) request may be denied

if the party requesting a continuance did not seek discovery diligently. See, e.g., Mackey v.

Pioneer Nat’l Bank, 867 F.2d 520, 523-24 (9th Cir. 1989) (“A movant cannot complain if it fails

diligently to pursue discovery before summary judgment.”; upholding refusal of Rule 56(f) request

where movant had been granted an additional month to conduct discovery)

In this case, while plaintiff points to facts he asserts would preclude summary judgment

in an affidavit in support of his motion (see Dkt. 39, Attach. 1), there is no indication he diligently

pursued discovery in this case. In fact, plaintiff concedes in his motion that he failed to pursue

discovery prior to the expiration of the discovery deadline and the filing of defendants’ summary

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ORDER RE: REQUEST FOR DISCOVERY

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judgment motion. ( See Dkt. 42 at 1.) Given that the May 31, 2006 deadline for completing

discovery expired more than two months prior to plaintiff’s transfer from the RJC, he cannot rely

on any of the delays caused by his transfers to support an assertion of diligence. Moreover, the

Court notes that, despite having requested and received three prior extensions of the deadline to

respond to defendants’ summary judgment motion, plaintiff waited until his fourth request – some

eight months after the discovery deadline had expired – to request a continuance for discovery.

Because it cannot be said that plaintiff diligently pursued discovery in this matter, his request for

a Rule 56(f) continuance is DENIED.

(2) As reflected above, plaintiff indicates in his motion that, as of February 20, 2007,

he lacked access to any of his legal materials pertinent to this case. The Court, therefore, also

construes this motion as a request for an additional extension.

While mindful of the difficulties associated with plaintiff’s transfers to and within the

Washington State Department of Corrections, the Court notes the four previous extensions

granted by this Court in order to accommodate any such difficulties. It is apparent that, within

that extended time period, plaintiff has had time to prepare a response to defendants’ motion.

(See, e.g., Dkt. 36 (January 2, 2007 letter, following a three and a half month extension, in which

plaintiff assured the Court he would submit a response by February 5, 2007) and Dkt. 39, Attach.

1 (affidavit in support of Rule 56(f) motion providing relatively detailed responses to arguments

raised in defendants’ summary judgment motion.)) The Court also notes both the public’s interest

in expeditious resolution of litigation and this Court’s inherent power to control its docket. See

generally Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (“District courts

have the inherent power to control their dockets and in the exercise of that power they may

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ORDER RE: REQUEST FOR DISCOVERY

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impose sanctions including, where appropriate, dismissal of a case.”) However, given plaintiff’s

latest transfer and in the continuing interest of obtaining a response to defendants’ motion, the

Court GRANTS plaintiff a fifth and final extension of the deadline to respond. Moreover, as

described below, the Court will forward plaintiff copies of the relevant documents filed in this

Court in order to ensure he has the basic documents necessary to allow for a response.

(3) Defendants’ motion for summary judgment and dismissal (Dkt. 22) is hereby

renoted for consideration on March 30, 2007, with plaintiff’s response due no later than March

26, 2007 and defendants’ reply due no later than March 30, 2007. These deadlines will not be

extended.

(4) The Clerk is directed to send copies of this Order to plaintiff, to counsel for

defendants, and to the Honorable John C. Coughenour. The Clerk is further directed to

forward to plaintiff a copy of his complaint with all attached documents (Dkt. 6), a copy of

defendants’ motion for summary judgment and dismissal with all associated declarations

and attachments (Dkts. 22-24), and plaintiff’s affidavit in support of his motion for a Rule

56(f) continuance (Dkt. 39, Attach. 1).

DATED this 28th day of February, 2007.

A

Mary Alice Theiler

United States Magistrate Judge 

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