                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 21 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BRUCE PATRICK HANEY,                              No. 11-16563

              Plaintiff - Appellant,              D.C. No. 1:04-cv-05935-AWI-
                                                  SKO
  v.

A. L. NELSON; R. SALDANA, AKA R.                  MEMORANDUM *
Saldano,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Anthony W. Ishii, Chief District Judge, Presiding

                        Argued and Submitted May 10, 2012
                               Pasadena, California

Before: PREGERSON, GRABER, and BERZON, Circuit Judges.

       Bruce Patrick Haney, a pro se prisoner litigant, appeals the district court’s

order granting a Motion for Summary Judgment brought by correctional officers

A.L. Nelson and R. Saldana. On appeal, Haney contends that the district court




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abused its discretion by granting summary judgment in favor of the correctional

officers before allowing Haney to complete discovery. We agree.

      The district court’s refusal to permit further discovery is reviewed for an

abuse of discretion. Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 373

(9th Cir.1985) (per curiam). “[S]ummary judgment is disfavored where relevant

evidence remains to be discovered, particularly in cases involving confined pro se

plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). A timely pending

motion to compel further discovery should have alerted the trial court of the need

to first address Haney’s discovery motion before taking up the prison guards’

summary judgment motion. Garrett v. City of San Francisco, 818 F.2d 1515, 1518

(9th Cir. 1987).

      Here, the court granted the prison guards’ summary judgment motion before

the prison guards complied with Haney’s discovery requests and before they

answered Haney’s interrogatories. The magistrate judge had earlier issued an order

compelling Nelson and Saldana to in good faith respond to Haney’s interrogatories

(as modified by the district court) and to come forth with the records Haney

requested. In response to Nelson’s and Saldana’s Motion for Reconsideration of

the order compelling further discovery, the magistrate judge stayed enforcement of

the discovery order until the parties could fully brief the prison guards’ Motion for


                                          2
Reconsideration. Significantly, the magistrate judge never ruled on Nelson’s and

Saldana’s Motion for Reconsideration before they successfully moved for

summary judgment.

      The record shows that Haney sought discovery diligently. The district court

abused its discretion in granting Appellees’ Motion for Summary Judgment before

allowing Haney to complete discovery.

      The district court’s order granting summary judgment in favor of

correctional officers Nelson and Saldana is AFFIRMED with respect to its finding

that Haney’s request for injunctive relief is now moot, and VACATED in all other

respects. The matter is REMANDED with instructions to allow Haney to

complete discovery. The parties shall each bear their own costs on appeal.




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