Bruce Patrick HANEY, Plaintiff-Appellant, v. A.L. NELSON; R. Saldana, aka R. Saldano, Defendants-Appellees, 476 F. App'x 147

MEMORANDUM 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 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 Sal-dana’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 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.