United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon pro se
“Plaintiff's Motion Requesting Permission and
Extension of Time to Amend His Opposed Motions to Centurions
[sic] Motions for Judgment and Summary Judgment as to Counts
I, II, and III of Plaintiff's Complaint (Doc's 128,
130 and 131)” (Motion to Amend), filed May 15,
2019. (Doc. 149). Plaintiff brings the Motion to
Amend pursuant to Fed.R.Civ.P. 56(d). Defendant Centurion
Correctional Healthcare of New Mexico, LLC (Centurion) filed
a response on May 30, 2019, and Plaintiff filed a reply on
June 14, 2019. (Docs. 151 and 152). Having considered the
Motion to Amend and the accompanying briefing, the Court
denies the Motion to Amend.
an inmate, brings this lawsuit against Centurion for alleged
failure to provide adequate medical services. On May 21,
2018, the Magistrate Judge entered a stipulated order
requiring Plaintiff to disclose experts by August 21, 2018,
and terminating discovery on November 20, 2018. (Doc. 96). On
July 18, 2018, Plaintiff filed a motion to compel Centurion
to respond to discovery requests and produce medical records.
(Doc. 104). On October 4, 2018, the Magistrate Judge denied
the motion to compel without prejudice finding that the
motion to compel was premature because the Court still needed
to rule on Plaintiff's motion to stay; the parties needed
“an opportunity to further meet and confer regarding
the discovery responses and potentially reach a negotiated
settlement;” and Plaintiff needed “time to obtain
counsel or, at least, obtain his files so he may be fully
informed as to the status of this case.” (Doc. 112) at
3. On November 1, 2018, Plaintiff filed a second motion to
compel, again seeking discovery responses and medical records
from Centurion. (Doc. 120).
December 18, 2018, and December 19, 2018, Centurion filed two
Fed.R.Civ.P. 12(c) motions for judgment on the pleadings
regarding Counts I and II, respectively. (Docs. 124 and 126).
On December 20, 2018, Centurion filed a motion for summary
judgment on Count III. (Doc. 127). Plaintiff responded to
these motions on December 31, 2018, and January 3, 2019.
(Docs. 128, 129, 130, and 131). In his response to the motion
for summary judgment, Plaintiff raised the same contention as
he does in the Motion to Amend, that Centurion has not
provided him with medical records. (Doc. 131) at 1.
Plaintiff, however, did not seek Rule 56(d) relief in that
April 12, 2019, the Magistrate Judge denied Plaintiff's
second motion to compel. (Doc. 145). The Magistrate Judge
found that Plaintiff did not show “a good faith effort
to properly meet and confer with counsel about the alleged
[discovery] deficiencies.” Id. at 2. The
Magistrate Judge further noted that Centurion did not
previously agree to provide Plaintiff with paper copies of
the medical records, and that Centurion believed Plaintiff
had a complete set of the medical records in his paper
litigation file (Plaintiff did not deny that his former
counsel provided him with the litigation file). Id.
at 3-4. The Magistrate Judge also suggested to Plaintiff that
if he felt his set of medical records was incomplete he could
request copies of his medical records from his medical
providers. Id. at 4 n. 2.
15, 2019, over four months after filing the responses to
Centurion's dispositive motions, Plaintiff filed the
Motion to Amend to seek a Rule 56(d) extension of time to
amend those responses. Plaintiff maintains that he filed the
responses to Centurion's dispositive motions without the
benefit of his legal file or “promised medical
records.” (Doc. 149) at ¶¶ 13-16. Plaintiff
contends that he “is now able to obtain the medical
records needed to prove that Centurion has been and continues
to be negligent in providing adequate care to
Plaintiff.” Id. at 6. Centurion opposes the
Motion to Amend in its entirety.
preliminary matter, the Court notes that Rule 56(d) does not
apply to Plaintiff's responses to Centurion's motions
for judgment on the pleadings. “A motion for judgment
on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).” Atl. Richfield Co. v.
Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th
Cir. 2000). “The nature of a Rule 12(b)(6) motion tests
the sufficiency of the allegations within the four corners of
the complaint after taking those allegations as true.”
Bhasker v. Kemper Cas. Ins. Co., 361 F.Supp.3d 1045,
1087 (D.N.M. 2019). Consequently, Plaintiff's medical
records are not relevant to Centurion's motions for
judgment on the pleadings, which rely only on the allegations
in the First Amended Complaint (Doc. 72). Moreover, Rule
56(d), a summary judgment rule, does not apply to motions for
judgment on the pleadings governed by Rule 12(c). For these
reasons, the Court denies the Motion to Amend as it pertains
to Plaintiff's responses to Centurion's motions for
judgment on the pleadings.
[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 or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
obtain relief under Rule 56(d), the party seeking additional
time to conduct discovery must
present an affidavit that identifies “the probable
facts not available and what steps have been taken to obtain
these facts. The nonmovant must also explain how additional
time will enable him to rebut the movant's allegations of
no genuine issue of material fact.”
FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir.
2013) (quoting Trask v. Franco, 446 F.3d 1036, 1042
(10th Cir. 2006)). “Unless dilatory or lacking in
merit, ” a party's Rule 56(d) request “should
be liberally treated.” Jensen v. Redevelopment
Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir.
1993) (internal quotation marks and citations omitted). The
district court has discretion to grant additional discovery
under Rule 56(d). Patty Precision v. Brown &
Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir.
1984); see also Pfenninger v. Exempla, Inc., 116
F.Supp.2d 1184, 1194 (D. Colo. 2000) (“The district
courts exercise discretion in deciding whether to grant a
[Rule 56(d)] motion.”).
the above principles, the Court concludes that
Plaintiff's Rule 56(d) Motion to Amend is deficient for
three reasons. First, Plaintiff does not provide the
required Rule 56(d) affidavit. See Comm. for First
Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.
1992) (observing that “[a] prerequisite to granting
[Rule 56(d)] relief …is an affidavit furnished by the
nonmovant”). Plaintiff's unverified assertions in
the Motion to Amend do not comply with the affidavit
requirement. See Id. (stating that