(PC) Greschner v. CDCR ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN GRESCHNER, No. 2:15-cv-1663 MCE AC P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 I. Procedural History 21 This case proceeds on plaintiff’s first amended complaint. ECF No. 15. On screening, the 22 undersigned found that plaintiff had stated a claim for deliberate indifference against defendant 23 Rohlfing and state law medical negligence claims against defendants Banner Lassen Medical 24 Center (Banner Lassen), Syverson, and Schwartz. ECF No. 18. 25 After service of the complaint, Rohlfing and Schwartz answered the complaint (ECF Nos. 26 27, 65), while Banner Lassen and Syverson moved to dismiss the complaint as untimely (ECF 27 Nos. 30, 42). Banner Lassen and Syverson subsequently withdrew their motions to dismiss and 28 1 answered the complaint. 1 ECF Nos. 55, 56, 61, 62. Defendants Banner Lassen, Syverson, and 2 Schwartz then filed motions for summary judgment. ECF Nos. 63, 73, 78. Plaintiff has opposed 3 the motions and requested the court order full discovery. ECF Nos. 68, 71, 72, 74, 79. Plaintiff 4 has also filed a motion to amend the complaint (ECF No. 64) which defendants Banner Lassen 5 and Schwartz oppose (ECF Nos. 66, 67). 6 II. Motion to Amend 7 Plaintiff’s motion to amend states that he seeks to name Banner Health as a defendant and 8 to add a fraud claim against Banner Lassen, Syverson, and Schwartz.2 Defendant Banner Lassen 9 has opposed the motion on the grounds that there is no practical distinction between Banner 10 Lassen and Banner Health, since Banner Health own, operates, and does business as Banner 11 Lassen. Banner Lassen also argues that plaintiff cannot state a claim for fraud. ECF No. 66. 12 Defendant Schwartz joined in the opposition. ECF No. 67. 13 The motion to amend is not accompanied by a proposed amended complaint, as required 14 by Local Rule 137(c), and will therefore be denied. In the event plaintiff chooses to file another 15 motion to amend, any such motion must be accompanied by a copy of the proposed amended 16 complaint. Plaintiff is advised that in order to state a claim for fraud, he must allege facts 17 demonstrating that there was 18 (1) a false representation, actual or implied, or the concealment of a matter of fact, material to the transaction, made falsely; (2) 19 knowledge of the falsity, or statements made with such disregard and recklessness that knowledge is inferred; (3) intent to induce 20 another into relying on the representation; (4) reliance by one who has a right to rely; and (5) resulting damage. 21 22 Pearson v. Norton, 230 Cal. App. 2d 1, 7 (Cal. Ct. App. 1964) (citation omitted). All elements 23 must be present for a claim to be successful. Id. at 7-8. 24 //// 25 1 Both defendants’ withdrawals were contained in the replies to their motions to dismiss and 26 were not properly docketed to reflect the withdrawal. ECF Nos. 55, 56. The Clerk of the Court will be directed to update the docket accordingly. 27 2 The motion also states that plaintiff seeks to add claims of medical negligence and malpractice (ECF No. 64 at 3), but this case is already proceeding on a medical negligence claim against 28 defendants Banner Lassen, Syverson, and Schwartz (ECF No. 18 at 6-7). 1 III. Motions for Summary Judgment 2 Defendants Banner Lassen, Syverson, and Schwartz have moved for summary judgment. 3 ECF Nos. 62, 73, 78. However, due to administrative oversights, a discovery and scheduling 4 order was not issued after defendants filed their answers and a formal discovery period was never 5 commenced. Although it appears from plaintiff’s oppositions and motion for full discovery that 6 some discovery has taken place between the parties, the extent of the discovery that has been 7 conducted is unclear and plaintiff indicates a desire to file a motion to compel further answers to 8 some of this discovery requests that he argues are material to proving his claims. ECF Nos. 68, 9 71, 72, 74, 76, 77, 79. 10 Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for 11 specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer 12 considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take 13 discovery; or (3) issue any other appropriate order.” “The requesting party must show: (1) it has 14 set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts 15 sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Fam. 16 Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) 17 (citation omitted). 18 In light of plaintiff’s representations that he requires additional discovery related to 19 defendants’ knowledge that the mesh used in his surgery was defective, plaintiff’s motion for 20 discovery will be granted to the extent the court will, by separate order, set a schedule for 21 discovery and the motions for summary judgment will be denied without prejudice to renewal 22 upon the close of discovery. Because plaintiff has represented that some discovery has already 23 taken place and given the age of this case, discovery shall take place on an expedited basis. 24 CONCLUSION 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Clerk of the Court is directed to update the docket to reflect that defendants 27 Banner Lassen Medical Center and Syverson’s replies (ECF Nos. 55, 56) are also notices of 28 withdrawal of their motions to dismiss and that the motions to dismiss (ECF Nos. 30, 42) are 1 | WITHDRAWN. 2 2. Plaintiff's motion to amend (ECF No. 64) is DENIED without prejudice to a motion in 3 || the proper form. 4 3. Plaintiffs motion for discovery (ECF No. 72) is GRANTED to the extent the court 5 || will set a schedule for discovery by separate order and is otherwise DENIED. 6 4. Defendants’ motions for summary judgment (ECF Nos. 63, 73, 78) are DENIED 7 || without prejudice to renewal after the completion of discovery. 8 | DATED: October 31, 2023 ~ 9 Htttenr— Lhor—e_ ALLISON CLAIRE 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28