FILED
NOT FOR PUBLICATION APR 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMISI JERMAINE CALLOWAY, No. 13-15605
Plaintiff - Appellant, D.C. No. 2:09-cv-02907-GEB-
EFB
v.
M. VEAL, Warden; et al., MEMORANDUM AND ORDER*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted April 7, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
Jamisi Jermaine Calloway appeals the district court’s entry of summary
judgment in favor of defendants on his Eighth Amendment claim. Reviewing de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
novo, Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004), we vacate the judgment
and remand.1
The district court erred by entering judgment against Calloway—who
appeared below in pro per and in forma pauperis while incarcerated—without
providing him an appropriate opportunity to conduct discovery. “We have . . . held
consistently that courts should construe liberally motion papers and pleadings filed
by pro se inmates and should avoid applying summary judgment rules strictly.”
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “Though the conduct of
discovery is generally left to a district court’s discretion, summary judgment is
disfavored where relevant evidence remains to be discovered, particularly in cases
involving confined pro se plaintiffs.” Jones, 393 F.3d at 930 (citing Klingele v.
Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). “Thus summary judgment in the
face of requests for additional discovery is appropriate only where such discovery
would be ‘fruitless’ with respect to the proof of a viable claim.” Id. (quoting
Klingele, 849 F.2d at 412).
1
Although we normally review a district court’s decision not to permit
further discovery for abuse of discretion, where, as here, the court fails to address a
pending request for additional discovery under Federal Rule of Civil Procedure
56(d), we review de novo. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998).
2
Despite Calloway’s efforts to obtain discovery that related to his claims of
deliberate indifference, he was unreasonably rebuffed at every turn. The
magistrate judge’s scheduling order gave the parties a mere three-and-a-half
months from the filing of the answer to complete discovery, and an additional two-
and-a-half months to file dispositive motions. Calloway was diligent in attempting
to obtain discovery, including serving two sets of written discovery, but defendants
refused to respond to a single request, ostensibly because they were not directed to
each defendant individually. Calloway’s motion to compel was denied, even
though he explained that the prison’s copying quota prevented him from making
enough copies to serve his discovery requests in time. By then discovery had
closed, and as a consequence, Calloway was not provided any discovery
whatsoever.
Defendants, on the other hand, were granted an extra 30 days to file a
motion for summary judgment, which they did. Calloway opposed the motion, and
also objected to the magistrate’s Report and Recommendation (R&R) to grant the
motion, because, among other things, he never received any discovery. Neither the
magistrate nor the district judge addressed Calloway’s express requests for
discovery.
3
Considering the allowances that must be made for pro se prisoners,
Calloway’s opposition to summary judgment and the objections he lodged to the
R&R can only be construed as a request under Federal Rule of Civil Procedure
56(d) for further discovery prior to judgment. His briefing plainly identifies the
material factual issues that he was not permitted to investigate, and his written
discovery requests detail the evidence he needs. These written requests appear
relevant and narrowly tailored. For example, Calloway requested—but apparently
never received—his complete medical records. Calloway requested the California
Medical Facility’s (CMF) contraband watch policy so that he could determine
precisely what the written policy was and whether warden M. Veal was responsible
for it.2 Calloway also requested production of other prisoner’s claims against the
warden and Dr. Andreasen, which might lead to discovery of relevant evidence.
2
Appellees contend that Calloway’s request for judicial notice of CMF’s
contraband watch policy and mission statement is an untimely attempt to
supplement the record. Appellees’ position is not well received given that they
stonewalled Calloway’s public records request for the policy and refused to
produce it to him on dubious legal grounds—yet promptly produced it without
objection once Calloway obtained representation from the law firm of O’Melveny
& Myers on appeal. In any case, we may take judicial notice of these materials as
public records at any point in the proceedings, and do so now. See Federal Rule of
Evidence 201(d).
4
On appeal, defendants claim, as they did below, that it was improper for
Calloway to address his discovery requests to both defendants because the Federal
Rules of Civil Procedure generally speak of serving discovery on “any other
party,” in the singular. See, e.g., Fed. R. Civ. P. 33(a)(1) (emphasis added). That
language hardly suggests that discovery directed to both defendants (represented
by the same counsel) is defective, and defendants concede that there is no case law
holding as much. Defendants are reminded of their obligation to refrain from
engaging in obstruction of Calloway’s reasonable discovery requests, particularly
in light of the obvious disadvantages he faces in prosecuting this case. Wanderer
v. Johnston, 910 F.2d 652, 653 (9th Cir. 1990).
Appellees shall be taxed for the costs of appeal.
VACATED and REMANDED.
5