Filed: Dec. 06, 2019
Latest Update: Dec. 06, 2019
Summary: ORDER DENYING DEFENDANT LEON'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 42 WILLIAM H. ORRICK , District Judge . Plaintiff Jearhamel Fanaro brings claims against several defendants and the County of Contra Costa over an alleged assault that occurred while he was housed in the County's Martinez Detention Facility. As relevant for this motion, Fanaro asserts that defendant inmate Thomas Leon was one of his attackers. On November 12, 2019, Leon filed a motion to dismiss and a motion for summa
Summary: ORDER DENYING DEFENDANT LEON'S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 42 WILLIAM H. ORRICK , District Judge . Plaintiff Jearhamel Fanaro brings claims against several defendants and the County of Contra Costa over an alleged assault that occurred while he was housed in the County's Martinez Detention Facility. As relevant for this motion, Fanaro asserts that defendant inmate Thomas Leon was one of his attackers. On November 12, 2019, Leon filed a motion to dismiss and a motion for summar..
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ORDER DENYING DEFENDANT LEON'S MOTION FOR SUMMARY JUDGMENT
Re: Dkt. No. 42
WILLIAM H. ORRICK, District Judge.
Plaintiff Jearhamel Fanaro brings claims against several defendants and the County of Contra Costa over an alleged assault that occurred while he was housed in the County's Martinez Detention Facility. As relevant for this motion, Fanaro asserts that defendant inmate Thomas Leon was one of his attackers.
On November 12, 2019, Leon filed a motion to dismiss and a motion for summary judgment. Motion in Answer to Plaintiff's Motion to Strike,1 Motion to Dismiss ("Mot.") [Dkt. No. 42]. First he argues that I should dismiss Fanaro's second amended complaint because he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997. Mot. 2. But the exhaustion requirement only applies to individuals who are prisoners at the time of filing suit. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). Fanaro's originally complaint pleaded that he was out of custody, and Leon raises no facts suggesting that is not the case. See Complaint [Dkt. No. 1] ¶ 6.
Leon next argues that he is entitled to summary judgment because he was not personally involved in any actions that deprived Fanaro of his federally protected rights. Mot. 4-5. "Liability under section 1983 arises only upon a showing of personal participation by the defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). According to Leon, Fanaro lacks admissible evidence proving that he was involved in the alleged conspiracy or assault. Mot. 5-6.
In opposition, Fanaro asserts that discovery has only recently begun and that he needs more time to develop evidence and raise triable issues of fact. Oppo. 10-12. Under Federal Rule of Civil Procedure 56(d), a court may defer ruling on a motion for summary judgment "if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d). According to a declaration from Fanaro's counsel, Leon has not responded to Fanaro's meet-and-confer request or made his initial disclosures as required by Federal Rule of Civil Procedure 26(a). Declaration of Qiana Washington [Dkt. No. 43-12] ¶ 6. In addition, Fanaro requires discovery from Contra Costa County, which he expects to receive on December 9, 2019. Id. ¶¶ 7-8.
Discovery is ongoing; it would be premature to grant Leon's motion at this time. Accordingly, it is DENIED WITHOUT PREJUDICE. Leon may file a new motion for summary judgment3 after discovery has progressed but no later than 30 days after the close of discovery. See Fed. R. Civ. P. 56(b).
IT IS SO ORDERED.
