Opinion
No. 2:14-cv-680-WBS-EFB P
12-01-2015
FLOYD PERRYMAN, Plaintiff, v. JASDEEP BAL, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. He claims that defendant Bal was deliberately indifferent to his serious medical needs. See Complaint, ECF No. 1 (alleging that, without ever examining plaintiff, Bal denied plaintiff an urgently needed surgery that was recommended by two physicians who had examined plaintiff, causing plaintiff irreparable damage). Discovery in this action is closed and defendant has moved for summary judgment. See ECF Nos. 27, 32. Plaintiff has not filed an opposition to the motion for summary judgment. Instead, he seeks a stay of the proceedings so that he can file an amended complaint, conduct further discovery, and obtain the court's appointment of an expert witness. As explained below, plaintiff's motions are denied.
Plaintiff seeks leave to add the Medical Authorization Review Committee ("MARC") as a defendant. However, the discovery and scheduling order required that all motions to amend be filed no later than October 24, 2014. ECF No. 14. The earliest possible filing date for plaintiff's motion to amend is July 20, 2015. Thus, plaintiff's motion is untimely and he has not sought nor submitted good cause for a modification of the scheduling order. Moreover, the proposed amendment is futile, as the MARC is not a "person" for purposes of a claim brought under 42 U.S.C. § 1983.
The motion was not filed with the court until September 14, 2015, but plaintiff claims he originally submitted it to the court for mailing on July 20, 2015. ECF No. 37.
Even construed as a motion to modify the scheduling order, the motion must still be denied. A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff contends that the MARC was deliberately indifferent to his medical needs by failing to follow certain recommendations of his medical doctors. ECF No. 37 at 11-12. However, plaintiff knew no later than July 2014 that the MARC had denied some of his medical requests. See ECF No. 39-1, ¶ 2 (explaining that the discovery provided to plaintiff in July 2014 showed that certain medical requests were denied by the MARC). Plaintiff contends that he could not have moved to amend any sooner, because he only recently received an MRI, the results of which reveal that he "suffers from a permanent injury to his right hand." ECF No. 37 at 6. But plaintiff alleged in his original complaint that he was irreparably injured, and as noted, he knew about the MARC's involvement in his requests for medical care as early as July 2014. Plaintiff's one-year delay in seeking leave to amend to name the MARC as a defendant does not demonstrate the requisite diligence. Plaintiff's recent MRI results do not excuse his delay in this regard.
Plaintiff's request for discovery, which the court construes as one brought pursuant to Federal Rule of Civil Procedure 56(d), must also be denied. Rule 56(d) permits a party opposing a motion for summary judgment to request an order deferring the time to respond to the motion and permitting that party to conduct additional discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d). However, the request must be based upon a showing that further discovery is needed to disclose information necessary to defeat the motion. Id. (requiring party making such request to show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition."). A Rule 56(d) affidavit must identify "the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). A Rule 56(d) affidavit must also identify "some basis for believing that the information sought actually exists." Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009).
Where a party opposing summary judgment shows that he cannot present facts essential to the opposition, Rule 56(d) allows the court to: (1) defer consideration of the motion, (2) deny the motion, (3) allow time for further discovery, or (4) issue another appropriate order. Fed. R. Civ. P. 56(d). --------
Plaintiff seeks further discovery to obtain the identities of the members of the MARC. This information, however, will not help plaintiff defeat defendant's motion for summary judgment, which turns only on defendant's alleged deliberate indifference, and not on other individual's alleged wrongdoing. Plaintiff fails to explain how obtaining the identities of the MARC members would preclude summary judgment. See Tatum, 441 F.3d at 1100; Fed. R. Civ. P. 56(d) (requiring party making such request to show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition."). Accordingly, his motion, construed as a request under Rule 56(d), must be denied.
Finally, plaintiff's request for the court to appoint him an expert medical witness for the purpose of interpreting an MRI is also denied. Such a witness will not help plaintiff in this action because opposing the summary judgment motion does not require an expert opinion. See ECF No. 32. Moreover, the in forma pauperis statute does not authorize courts to subsidize expert fees. Hadsell v. IRS, 107 F.3d 750, 752 (9th Cir. 1997) (relying on Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam)).
Accordingly, it is hereby ORDERED that plaintiff's motions (ECF Nos. 37, 41, 42, 43) are denied. IT IS FURTHER ORDERED that plaintiff shall file his response to defendant's summary judgment motion within 30 days of the date of this order. Failure to comply with this order may result in a recommendation that this action be dismissed without prejudice. DATED: December 1, 2015.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE