(PC) Baca v. Biter ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK BACA, Case No. 1:15cv1916-DAD-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. GRANT PLAINTIFF’S MOTION TO DEFER RULING ON THE DEFENDANTS’ 14 MARTIN BITER, ET. AL., RESPECTIVE SUMMARY JUDGMENT MOTIONS1 (Doc. No. 186) 15 Defendants. DEFENDANTS’ RESPECTIVE MOTIONS FOR 16 SUMMARY JUDGMENT BE DEFERRED (Doc. Nos. 169, 170) 17 OBJECTIONS WITHIN FOURTEEN DAYS 18 19 Pending before the Court are motions for summary judgment filed on behalf of 20 Defendants Dr. Jonathan Akanno and Dr. F. Igbinosa (Doc. No. 169) and on behalf of J. Bal, M. 21 Bparai, L. Carmichael, J. Carick, Larry Dielo, E. Dos Santos, R. Kanan, D. Ralston, G. Song, S. 22 Tharratt, A Vasudeva. (Doc. No. 170). Plaintiff filed a response to the defendants’ respective 23 motions for summary judgment seeking deferral or denial of defendants’ respective motions 24 under Rule 56(d) of the Federal Rules of Civil Procedure and Local Rule 260(b). (Doc. No. 186). 25 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 28 1 For the reasons set forth below, the undersigned recommends the court grant plaintiff’s motion 2 and defer ruling on the pending motions for summary judgment. 3 I. FACTS AND BACKGROUND 4 Plaintiff, a prisoner incarcerated in the California Department of Corrections and 5 Rehabilitation (“CDCR”), initiated this action by filing a 42 U.S.C. § 1983 Civil Rights 6 Complaint on December 28, 2015. (Doc. No. 1). On February 7, 2017, the court appointed 7 counsel for plaintiff. (Doc. No. 12). Plaintiff is proceeding on his Third Amended Complaint, 8 which alleges Eighth and Fourteenth Amendment violations stemming from defendants’ alleged 9 failure to timely provide medical treatment for plaintiff’s Hepatitis-C virus. (Doc. No. 29). More 10 specifically, plaintiff specifies that he incurred damages due to the delay in treatment caused by: 11 (1) the refusal of individual doctors at CDCR to properly treat him and (2) CDCR practices and 12 policies that intentionally and knowingly denied him necessary treatment. (Doc. No. 29 at 1). As 13 relief, plaintiff sought declaratory and injunctive relief, along with general, specific, and punitive 14 damages. (Id. at 11-12). In 2019, during the pendency of this case, plaintiff received medical 15 treatment for his Hepatitis-C virus and is now cured. The parties concede plaintiff’s request for 16 injunctive relief is now moot and only his claim for damages remain. (See Doc. Nos. 169-1 at 7; 17 Doc. 172 at 2; and Doc. No. 179 at 2). 18 Following the filing of defendants’ respective summary judgment motions on May 21, 19 2020, the parties jointly stipulated to continue the hearing date for the summary judgment 20 motions on the basis that Dr. Akanno’s deposition was essential for plaintiff to be able to respond 21 to defendants’ respective motions. (Doc. No. 172 at 2). Indeed, all counsel concurred “that it 22 would be inequitable to compel the plaintiff to respond to the motions without the deposition 23 testimony of Dr. Akanno.” (Id. at ¶ 3). On October 7, 2020, the court ordered the parties to file a 24 joint statement concerning the motions for summary judgment. (Doc. No. 178). In the joint 25 statement, plaintiff again stated that Dr. Akanno’s deposition was “of vital importance” and 26 reiterated that it would be “inappropriate to proceed with the dispositive motions” until Dr. 27 Akanno’s deposition could take place. (Doc. No. 179 at 2). Defendants responded that they 28 1 have no opposition to plaintiff taking Dr. Akanno’s deposition but opposed any “further delay on 2 the dipositive motion scheduling.” (Id.). 3 On February 12, 2020, the court held a hearing in this matter concerning the pending 4 motions.2 (Doc. No. 185). Plaintiff’s counsel expressed his frustration that despite taking 5 depositions of CDCR’s officials identified by defendants as having knowledge of who was 6 involved in developing the policies and practices regarding treatment of Hepatitis C, the 7 depositions failed to identify said individuals with such knowledge. Plaintiff’s counsel reiterated 8 that Dr. Akanno, who treated plaintiff, would be in position to identify the names of these 9 individuals. At the hearing, the court extended the time for plaintiff to respond to the defendants’ 10 respective summary judgment motions. On March 12, 2021, plaintiff filed the instant motion, 11 seeking deferral or denial of defendants’ respective motions under Fed. R. Civ. P. 56(d) and Local 12 Rule 260(b). Consistent with past pleadings and his representations before this court, plaintiff 13 attests that he requires the deposition of Dr. Akanno before he can properly respond to the 14 defendants’ respective motions for summary judgment. (Doc. No. 186 at 2). Plaintiff further 15 states that Dr. Akanno’s deposition will likely identify additional parties who will be named as 16 newly discovered defendants, thus resulting in a further amendment to the complaint. (Id). 17 II. APPLICABLE LAW 18 Summary judgment is generally only appropriate after a nonmovant has had adequate time 19 for discovery. Rule 56(d) of the Rules of Civil Procedure governs when facts are unavailable to a 20 nonmovant and provides: 21 If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the 22 court may: 23 (1) defer considering the motion or deny it; (2) allow time to obtain 24 affidavits or declarations or to take discovery; or (3) issue any other appropriate order. 25 26 27 2 This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 180). The court scheduled a hearing due to defendants’ Notice of Rand Warning (Doc. No. 181) after 28 plaintiff’s counsel filed a motion to withdraw (Doc. No. 176). 1 Fed. R. Civ. P. 56(d). Local Rule 260(b) similarly provides that a party may oppose a summary 2 judgment motion due to the need to conduct further discovery when the motion “provide[s] a 3 specification of the particular facts on which discovery is to be had or the issues on which 4 discovery is necessary.” The party moving under Rule 56(d) bears the burden of demonstrating 5 the requisite basis for relief. Atay v. Cty. Of Maui, 842 F.3d 688, 698 (9th Cir. 2016). The 6 purpose of Rule 56(d) is “to prevent a party form being unfairly thrown out of court by a 7 premature motion for summary judgment.” See Jackson v. Riebold, 815 F.3d 1114, 1121 (9th 8 Cir. 2016) (citations omitted); see also Burlington Northern Santa Fe Ry. Co. v. The Assiniboine, 9 323 F.3d 767, 773 (9th Cir. 2003). To obtain a Rule 56(d) continuance, the nonmovant “‘must 10 file an affidavit affirmatively demonstrating . . . how postponement of a ruling on the motion will 11 enable him, by discovery or other means, to rebut the movant’s showing of the absence of a 12 genuine issue of fact.’” Id. (alteration in original) (quotations and citations omitted). The party 13 seeking the additional discovery must demonstrate that the facts sought exist and that they 14 sought-after facts are essential to resist the summary judgment motion. Id. Rule 56(d) does not 15 condone a fishing expedition. The party seeking more discovery must also identify documents or 16 specific facts he believes would contradict the opposing side’s evidence. Id.; see also Family 17 Home and Finance Center, Inc. v. Federal Home Loan Mortg. Corp., 525 F.3d 822 (9th Cir. 18 2008) (reciting three requirements the non-movant must prove to garner delay or denial of motion 19 for summary judgment under Rule 56(d)); see also Securities Exchange Commission v. Stein, 906 20 F.3d 823, 832 (9th Cir. 2018) (reiterating that mere speculation about outstanding discovery 21 needed is insufficient) Singh v. American Honda Finance Corporation, 925 F.3d 1053, 1076 (9th 22 Cir. 2019) (finding no abuse of discretion when district court denied Rule 546(d) motion because 23 non-movant provided only conclusory statements to support more time for discovery) . 24 The court should consider whether the moving party lacked diligence in pursuing 25 discovery earlier. Emplrs. Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox 26 Co., 353 F.3d 1125, 1130 (9th Cir. 2004); Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 27 n. 6 (9th Cir. 2001). If the moving party acted diligently but simply needs additional time to 28 complete discovery, denying his request is an abuse of discretion. See Noyes v. Kelly Servs., 488 1 F.3d 1163, 1174 (9th Cir. 2007) (finding district court improperly denied request for additional 2 discovery where plaintiff had pursued discovery but opposing party caused delays); Garrett v. 3 City and County of San Francisco, 818 F.2d 1515, 1518-19 (9th Cir. 1987)(finding district court 4 improperly denied motion where plaintiff diligently pursued discovery but was unable to obtain 5 complete responses prior to due date of response to the opposing party's summary judgment 6 motion). 7 III. ANALYSIS 8 The court finds plaintiff has sustained his burden to warrant a deferment of the pending 9 motions for summary judgement. As set forth supra, counsel for defendants agreed that plaintiff 10 required the deposition of Dr. Akanno to respond to the pending motions for summary judgment. 11 Supra at 2 (citing Doc. No. 176-2 at ¶6). According to attorney Schmidt’s declaration, which is 12 accepted the same as an affidavit in this case,3 ascertaining who compromised the CDCR 13 executive committee that promulgated the policies for treating inmates with Hepatitis-C took an 14 extensive amount of time. (Doc. No. 176-2 at 2). Counsel reiterated that Dr. Akanno will have 15 knowledge about the polices in place at the time that directly impacted the provision of medical 16 care and treatment for Plaintiff’s Hepatitis-C condition, which is at issue in this litigation. The 17 record reveals that Dr. Akanno is one of the defendants moving for summary judgment and his 18 deposition testimony is essential as a named party. 19 Here, plaintiff exercised diligence and attempted to take the deposition of Dr. Akanno. 20 Delay in Dr. Akanno’s deposition was unavoidable due to the Covid-19 pandemic. Dr. Akanno’s 21 on-line deposition was unintelligible due to the mask-wearing requirement posed by the Covid-19 22 pandemic and because Dr. Akanno speaks with a heavy accent. Because Dr. Akanno’s deposition 23 3 A declaration submitted under penalty of perjury and in compliance with 28 U.S.C. § has full 24 force and effect as an affidavit. See Fed. R. Civ. P. 56(c)(4) (providing an affidavit or declaration used to support or oppose a motion must be based on personal knowledge, set out facts that would 25 be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated); Villagran-Diaz v. U.S. INS, 996 F.2d 1229 (9th Cir. 1993) (rejecting argument 26 that declaration could not be accepted in lieu of affidavit when declaration was not executed 27 under oath). Here, counsel’s declaration is compliant with 28 U.S.C. § 1746 as it states counsel “declares under penalty of perjury that foregoing is true and correct.” 28 1 must be conducted in person, the Covid-19 pandemic has delayed his deposition. (Doc. No. 176- 2 2 at 2; Doc. No. 176-1 at 2). Defendants’ respective summary judgment motions are predicated 3 in large part on their contention that no individual CDCR physicians could unilaterally prescribe 4 treatment to an inmate with Hepatitis C without approval from the California Correctional Health 5 Care Services Hepatitis C Virus Oversight Committee. Here, plaintiff has narrowly and 6 adequately identified facts that Dr. Akanno can testify to concerning material facts in this 7 litigation, e.g. the policies in place that directly impacted the provision of medical care to plaintiff 8 at the CDCR, who promulgated the policies, and why these policies were promulgated. Plaintiff 9 attempted but was unable to successfully complete Dr. Akanno’s deposition due to no fault of 10 plaintiff. Postponing a ruling on defendants’ respective summary judgment motions would 11 permit plaintiff to depose Dr. Akanno in person, after the concerns over the Covid-19 pandemic 12 subside and would avoid the “inequitable” result the parties conceded would occur if plaintiff 13 were required to respond to the dispositive motions at this time. (See Doc. No. 172 at 2, ¶ 3). 14 Accordingly, it is RECOMMENDED: 15 1. Plaintiff’s Rule 56(d) motion to delay or defer ruling on the defendants’ motions for 16 summary judgment (Doc. No. 186) be GRANTED to the extent defendants’ respective motions 17 for summary judgment be deferred. 18 2. Defendants’ respective motions for summary judgment (Doc. Nos. 169, 170) be 19 deferred for thirty (30) days following Dr. Akanno’s live deposition. 20 21 NOTICE TO PARTIES 22 These findings and recommendations will be submitted to the United States district judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 24 (14) days after being served with these findings and recommendations, a party may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Parties are advised that failure to file objections within the 27 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 28 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 1 > | IT IS SO ORDERED. ° Dated: __March 24, 2021 oo. WN. fered Yack 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ,