Fanaro v. County of Contra Costa ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEARHAMEL JORDAN FANARO, Case No. 3:19-cv-03247-WHO 8 Plaintiff, ORDER DENYING DEFENDANT 9 v. LEON’S MOTION FOR SUMMARY JUDGMENT 10 COUNTY OF CONTRA COSTA, et al., Re: Dkt. No. 42 Defendants. 11 12 13 Plaintiff Jearhamel Fanaro brings claims against several defendants and the County of 14 Contra Costa over an alleged assault that occurred while he was housed in the County’s Martinez 15 Detention Facility. As relevant for this motion, Fanaro asserts that defendant inmate Thomas 16 Leon was one of his attackers. 17 On November 12, 2019, Leon filed a motion to dismiss and a motion for summary 18 judgment. Motion in Answer to Plaintiff’s Motion to Strike,1 Motion to Dismiss (“Mot.”) [Dkt. 19 No. 42]. First he argues that I should dismiss Fanaro’s second amended complaint because he 20 failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 21 U.S.C. § 1997. Mot. 2. But the exhaustion requirement only applies to individuals who are 22 prisoners at the time of filing suit. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). 23 Fanaro’s originally complaint pleaded that he was out of custody, and Leon raises no facts 24 suggesting that is not the case. See Complaint [Dkt. No. 1] ¶ 6. 25 Leon next argues that he is entitled to summary judgment because he was not personally 26 involved in any actions that deprived Fanaro of his federally protected rights. Mot. 4-5. “Liability 27 1 under section 1983 arises only upon a showing of personal participation by the defendant.” Taylor 2 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). According to Leon, Fanaro lacks admissible 3 evidence proving that he was involved in the alleged conspiracy or assault. Mot. 5-6. 4 In opposition, Fanaro asserts that discovery has only recently begun and that he needs 5 more time to develop evidence and raise triable issues of fact. Oppo. 10-12. Under Federal Rule 6 || of Civil Procedure 56(d), a court may defer ruling on a motion for summary judgment “if a 7 nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 8 || essential to justify its opposition.” Fed. R. Civ. P. 56(d). According to a declaration from 9 || Fanaro’s counsel, Leon has not responded to Fanaro’s meet-and-confer request or made his initial 10 || disclosures as required by Federal Rule of Civil Procedure 26(a). Declaration of Qiana 11 Washington [Dkt. No. 43-17] 46. In addition, Fanaro requires discovery from Contra Costa 12 || County, which he expects to receive on December 9, 2019. Id. 4] 7-8. 5 13 Discovery is ongoing; it would be premature to grant Leon’s motion at this time. 14 || Accordingly, it is DENIED WITHOUT PREJUDICE. Leon may file a new motion for summary 3 15 || judgment? after discovery has progressed but no later than 30 days after the close of discovery. 16 || See Fed. R. Civ. P. 56(b). IT IS SO ORDERED. 18 Dated: December 6, 2019 19 . 20 4 liam H. Orrick United States District Judge 22 23 24 25 26 > The filing at Dkt. No. 43-1 includes numerous exhibits, most of which are already part of the docket in this case. The relevant declaration begins at ECF page 66. 27 3 Although my Standing Order for Civil Cases allows only one motion for summary judgment per 2g || party, I grant Leon leave to file a second motion because he proceeds without counsel. See Standing Order for Civil Cases § 6.