                                                                              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                           NOT FOR PUBLICATION                                APR 30 2014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.




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