United States District Court, D. Nebraska
JOSHUA M. NICKMAN, Plaintiff,
JUANM. ZARRAGA, Individual Capacity; SHELBY L. RAWLINGS, Individual Capacity; ANDREW L. MCLEAN, Individual Capacity; COLTON J. GUERRERO, Individual Capacity; MICHAEL TUBBS, Individual Capacity; JESUS J. RAMIREZ, Individual Capacity; JAIME LYN CRAFT, Individual Capacity; JESSICA M. STROUP, Individual Capacity; SCOTT B. ANDREALA, Individual Capacity; ERIC JON LITTLE, Individual Capacity; JONATHAN R. TRIPP, Individual Capacity; and AARON GRAY, Individual Capacity; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
January 10, 2017, Defendants filed a Motion for Summary
Judgment based on qualified immunity. (Filing No.
49; Filing No. 50.) On January 20, 2017,
Plaintiff filed motions seeking discovery. (Filing No.
64; Filing No. 65.) On January 31, 2017, the
court denied Plaintiffs motions for discovery without
prejudice and stayed all discovery pending resolution of
Defendants' Motion for Summary Judgment. (Filing No.
66.) The court informed Plaintiff in its order that he
would not be prohibited from filing a properly supported
motion to obtain court approval to conduct limited discovery
regarding issues raised by Defendants in their Motion for
Summary Judgment. (Id.) On February 6, 2017,
Plaintiff filed a "Motion for Time Extension or
Continuance" pursuant to Fed.R.Civ.P.
56(d).(Filing No. 68.) He seeks a
thirty-day extension to respond to Defendants' Motion for
Summary Judgment so that he may have "all the discovery
info to counter the defendants summary judgment."
(Id.) Defendants filed a brief in opposition to
Plaintiffs motion. (Filing No. 69.) They argue that
Plaintiffs motion should be denied because it is not properly
supported as required by Fed.R.Civ.P. 56(d). (Id.)
56(d) sets forth that:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Civ. P. 56(d). The party seeking additional discovery must
show: "(1) that they have set forth in affidavit form
the specific facts that they hope to elicit from further
discovery, (2) that the facts sought exist, and (3) that
these sought-after facts are 'essential' to resist
the summary judgment motion." Toben v. Bridgestone
Retail Operations, LLC, 751 F.3d 888, 895 (8th Cir.
2014) (quoting State of Cal, on Behalf of Cal. Dep 't
of Toxic Subs. Control v. Campbell, 138 F.3d 772, 779
(9th Cir. 1998). Rule 56(d) does not condone a fishing
expedition. Duffy v. Wolle, 123 F.3d 1026, 1041 (8th
Plaintiff failed to comply with Rule 56(d). Plaintiff did not
show by affidavit or declaration the specific facts
that he hopes to elicit from further discovery. In light of
Plaintiffs pro se status, the court will give Plaintiff one
additional opportunity to file an affidavit or declaration
that plainly sets forth (1) the specific facts he hopes to
elicit from further discovery, (2) that the facts sought
exist, and (3) that these sought-after facts are essential to
resist the summary judgment motion.
THEREFORE ORDERED that:
Plaintiff is given 14 days in which to file an affidavit or
declaration that plainly sets forth (1) the specific facts he
hopes to elicit from further discovery, (2) that the facts
sought exist, and (3) that these sought-after facts are
essential to resist the summary judgment motion. Failure to
do so will result in summary dismissal of Plaintiff s Rule
Plaintiff timely files an affidavit or declaration in support
of his Rule 56(d) motion, Defendants will have 14 days in
which to respond to the Rule 56(d) motion.
Plaintiff does not file an affidavit or declaration in
support of his Rule 56(d) motion within 14 days, he will have
14 days from the date the affidavit or declaration is due in
which to file a response to Defendants' summary judgment
clerk's office is directed to set the following pro se
case management deadline: March 10, 2017: Check for
Plaintiffs affidavit and response from ...