Gwynn v. Patrick Sherwood

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] * * * [5] 6 JAMAL GWYNN, Case No. 3:18-cv-00129-MMD-WGC 7 Plaintiff, ORDER v. [8] PATRICK SHERWOOD, [9] Defendant. [10] 11 In this case, pro se Plaintiff Jamal Gwynn maintains a Fourth Amendment 12 excessive force claim for the use of deadly force against Defendant Patrick Sherwood. 13 (ECF No. 3 at 4.) Defendant has moved for summary judgment contending that he was 14 either justified in using deadly force or entitled to qualified immunity for using such force 15 (“MSJ”). (ECF No. 35.) Plaintiff has not responded to Defendant’s MSJ. However, before 16 the deadline for such response Plaintiff filed a motion stating that it is difficult for him to 17 obtain evidence for his case—presumably to respond to the MSJ—due to being confined 18 in maximum security prison (“Plaintiff’s Motion”). (ECF No. 44.) Plaintiff also requests that 19 the Court permit his mother to submit evidence on his behalf. (Id.) On the day Plaintiff’s 20 response to the MSJ was due, Plaintiff’s mother submitted a manual filing providing a CD 21 with a written notation identifying the CD as relating to Defendant’s MSJ (“the CD”). (See 22 ECF No. 45 (noting the manual filing).)1 23 /// 24 /// [25] 1To the extent Plaintiff requests that his mother be permitted to obtain evidence on 26 his behalf, the Court notes that nothing precludes Plaintiff’s mother from informally assisting Plaintiff in obtaining evidence. However, Plaintiff is responsible for prosecuting 27 this case. As presumably a non-attorney Plaintiff’s mother cannot directly make filings on Plaintiff’s behalf in this case. [28] 1 Given Plaintiff's pro se status, the Court liberally construes Plaintiff's Motion as a 2 || request to conduct further discovery under Fed. R. Civ. P. 56(d).2 The Court will however 3 || deny Plaintiff's Motion because the deadline for discovery expired almost three months 4 || before Plaintiff filed the motion (compare ECF No. 24 with ECF No. 44). See, e.g., VISA 5 || Intl Serv. Ass'n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986) (“[T]he 6 || denial of a [Rule 56(d)] application is generally disfavored where the party opposing 7 || summary judgment makes (a) a timely application which (b) specifically identifies 8 || (c) relevant information, (d) where there is some basis for believing that the information 9 || sought actually exists.”) (emphasis added); see also Soule v. High Rock Holding, LLC., 10 || 514 B.R. 626, 631 (D. Nev. 2014) (quoting Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839 , 11 || 844 (9th Cir. 1994)) (“The party making a Rule 56(d) request must be able to show that it 12 || diligently pursued its previous discovery opportunities and show ‘how allowing additional 13 || discovery would have precluded summary judgment.”) (emphasis added). 14 However, because Plaintiffs mother filed the CD before the Court addressed 15 || Plaintiffs Motion, the Court will provide the parties with a copy of the CD. The Court will 16 || permit Plaintiff an additional 45 days from the date of this order to file a response to 17 || Defendant's MSJ. Defendant should address the CD in his reply brief, which will be due 18 || within the normal deadline from Plaintiff's filing of his response or the deadline for him to 19 || file his response, whichever is later. 20 It is therefore ordered that Plaintiff's Motion (ECF No. 44) is denied due to the extent 21 || of its untimeliness—almost three months after discovery was due. ee It is further ordered that Plaintiff will have an additional 45 days to file a response 23 || to Defendant's MSJ (ECF No. 35). 24 || /// 25 || /// 26 || /// 27 2Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation and citation omitted) 28 || (“A document filed pro se is to be liberally construed.”). 1 It is further ordered that Defendant's reply will be due within the normal deadline 2 || from Plaintiff's filing of his response or the deadline for Plaintiff to file his response, 3 || whichever is later. 4 It is further ordered that the Clerk send the warden at Ely State Prison, Ely, NV 5 || 89301 and Defendant a copy of the CD (see ECF No. 45). Plaintiff may make a request 6 || to the warden to view the CD through the normal process available to him. 7 DATED THIS 23" day of October 2019. 8 {LQ 9 SRNR CBU 0 CHIEF UNITED STATES DISTRICT JUDGE