United States District Court, D. New Mexico
GARY J. MARTINEZ Plaintiff,
JASON C. BROWN, individually and in his official capacity with the Albuquerque Police Department; CITY OF ALBUQUERQUE, a municipal entity organized under the laws of the STATE OF NEW MEXICO, and its Subsidiary, the ALBUQUERQUE POLICE DEPARTMENT, Defendants.
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO Chief United States District Judge
MATTER is before the Court on Plaintiff's Rule 56(d)
Response to Defendants' Motion for Summary Judgment Based
on Qualified Immunity, filed September 26, 2016. [Doc.
filed a Motion [for] Summary Judgment Based on Qualified
Immunity, which is presently pending before the Court.
[Doc. 37] Discovery has been stayed pending its resolution.
[Doc. 53] In the Rule 56(d) Response presently
before the Court, Plaintiff argues that without discovery he
“cannot present facts essential to justify his
opposition” to Defendants' Motion. [Doc.
45 p. 1] On this basis, Plaintiff seeks relief pursuant to
Fed.R.Civ.P. 56(d), which permits a nonmoving party in a
summary judgment action to discover information that is vital
in opposing a motion for summary judgment.
56(d) pertains to circumstances in which, owing to the
unavailability of essential facts, a nonmovant is unable to
effectively oppose a motion for summary judgment. It provides
[i]f 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 [for summary judgment] or deny it; (2) allow time
to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
a Rule 56(d) request is treated liberally. Lewis v. City
of Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990).
However, where, as here, the summary judgment motion is
grounded in the defense of qualified immunity, the
Court's otherwise broad discretion under Rule 56(d) is
circumscribed by the nature of that defense. Lewis,
903 F.2d at 758. See Martin v. Cty. of Santa Fe, 626
Fed.Appx. 736, 740 (10th Cir. 2015) (“Because the
driving force behind creation of the qualified immunity
doctrine was a desire to ensure that insubstantial claims
against government officials will be resolved prior to
discovery, there is a strong policy justification for
staying discovery and for refusing requests for additional
discovery once a defendant invokes qualified immunity as a
defense.” (citation omitted)). The burden is on the
nonmovant to show that the additional discovery is necessary.
Martin, 626 Fed.Appx. at 740.
Tenth Circuit has described the nonmovant's burden under
Rule 56(d) as follows:
A prerequisite to granting relief pursuant to [Rule 56(d)] is
an affidavit furnished by the nonmovant. Although the
affidavit need not contain evidentiary facts, it must explain
why facts precluding summary judgment cannot be presented.
This includes identifying the probable facts not available
and what steps have been taken to obtain these facts. In this
circuit the nonmovant also must explain how additional time
will enable them to rebut movant's allegations of no
genuine issues of fact.
Price ex rel. Price v. W. Res., Inc., 232 F.3d 779,
783 (10th Cir. 2000). Additionally, the nonmovant is required
to explain what facts he wants to discover, why he has not
yet discovered them, and how additional time would help him
to rebut the movant's allegations. Id. at 784.
Plaintiff has failed to carry this burden.
Rule 56(d) Response, Plaintiff contends that in
order to effectively respond to Defendants'
Motion, “at a minimum” he requires: (1)
the deposition of the ambulance driver and EMT personnel who
were present at the scene of the crash; (2) the deposition of
the “appropriate person from the company that installed
and/or maintained the ignition interlock in . . .
Plaintiff's car”; (3) the depositions of two police
officers; (4) the deposition “of any witness identified
by the City who is or may be responsible for training”
any of the three police officers that participated in the
investigation that led to Plaintiff's incarceration; (5)
the deposition of any witness who may be responsible for the
promulgation and/or implementation of policies and procedures
regarding probable cause determination in DWI arrests and
drug recognition; (6) responses to requests for production;
(7) responses to requests for admission; and (8) responses to
interrogatories. [Doc. 45 ¶¶ 1-8] In sum, through
his Rule 56(d) Response, Plaintiff seeks virtually
Plaintiff has furnished an Affidavit of the Plaintiff in
Support of his Response to Defendants' Motion for Summary
Judgment Based on Qualified Immunity, the
Affidavit does not satisfy the standards set by our
Tenth Circuit. The Affidavit contains only two
statements that reasonably correspond to the requested
discovery. One is Plaintiff's statement that:
“Although EMTs were called to the scene, the APD
officers sent them away and did not give them an opportunity
to offer me medical assistance or to examine me. I believe
that if they had been allowed to do so, they would have
learned that a seizure had caused me to crash and to perform
poorly on the field sobriety test.” [Doc. 45-1 ¶
4] The other is Plaintiff's statement that: “I used
the interlock installed in my car vehicle (sic) to
start it before the crash. It may have been dislodged and/or
damaged by the collision and was lying on the floor of the
car when I regained consciousness.” [Doc. 45-1 ¶
6] The Court understands these statements to pertain to the
prospective witness testimony of the EMT personnel and the
ignition interlock employee.
Affidavit does not explain what steps Plaintiff took
to contact or interview these individuals, or why additional
time is necessary. See Price, 232 F.3d at 783-84.
Plaintiff's failure to address these factors is
particularly curious because there is no indication that
exclusive access to these prospective witnesses is within
Defendants' control. See Id. at 784 (recognizing
that opposing party's “exclusive control of desired
information is a factor favoring relief under” Rule
56(d)). Furthermore, neither the Affidavit nor the
Rule 56(d) Response explains how the discovery,
which appears to seek speculative and hypothetical opinions
from the prospective witnesses, would enable Plaintiff to
rebut Defendants' presentation of undisputed facts such
that a “genuine issue” would arise. Id.
at 784; Martin, 626 Fed.Appx. at 741 (affirming the
district court's denial of a request for additional
discovery where the plaintiff failed to demonstrate how
additional discovery would have raised a genuine fact issue
as to the defendant's qualified immunity defense).
Plaintiffs Rule 56(d) Response does not satisfy the
requirements applicable to a request for additional discovery
under Rule 56(d) set forth by our Tenth Circuit. ...