MEMORANDUM**

Appellant Kenneth L. Krause brought this action pursuant to 42 U.S.C. Sec. 1983 (1982), alleging that the appellees (collectively "the Prison") were deliberately indifferent to his serious medical needs in violation of the eighth amendment. The district court granted summary judgment in the Prison's favor, and Krause timely appealed. Because we conclude that the district court erred in entering judgment against Krause before he was able to discover his medical records, we reverse.

Krause filed his civil rights complaint in October 1987. The Prison responded by filing a motion to dismiss/motion for summary judgment on December 28. Krause opposed the motion, and the Prison submitted a reply. Thereafter, on April 21, 1988, while the Prison's summary judgment motion was pending and less than a month before it was granted, Krause filed with the court a "Request for Production of Documents from Plaintiff's Department of Prisons Medical Files and Institutional Files." The stated purpose of this motion was as follows:

The Plaintiff herein submits this Special Motion to the court for further consideration concerning discovery matters, within which to prove his case. If the Court were to at this stage dismiss the complaint based upon the Defendants motion to dismiss/Motion for Summary Judgment and their Reply, Justice would not at all be served to the Plaintiff.

The district court denied Krause's request the same day, indicating that the proper procedure was to serve such papers directly on opposing counsel. Krause followed the court's instructions and served the Prison directly on May 12 with a request for his medical records. The court, however, granted the Prison's motion for summary judgment four days later, before the Prison could respond to Krause's request. The summary judgment was based upon affidavits detailing the information contained in Krause's medical files. Krause seeks to dispute the facts related in the affidavits, but contends he cannot do so until he is able to discover those files.

Generally, a litigant like Krause who fails to seek a continuance pursuant to Fed.R.Civ.P. 56(f) cannot complain about the timing of summary judgment on appeal. See Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1467 (9th Cir.1985), cert. denied, 475 U.S. 1048 (1986); THI-Hawaii v. First Commerce Fin. Corp., 627 F.2d 991, 994 (9th Cir.1980). This circuit, however, recognizes one exception to this general rule. Where the actions of a party opposing summary judgment were such that the district court clearly had notice that further discovery was contemplated, we will consider the discovery question despite the absence of a Rule 56(f) request. See, e.g., Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir.1987) (pending motion to compel discovery sufficient to raise Rule 56(f) consideration); Program Eng'g, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1193 (9th Cir.1980) (motion to strike portions of summary judgment motion adequate to raise discovery question).

This case falls squarely within the reasoning of Garrett and Program Engineering. Although Krause did not formally move for a Rule 56(f) continuance, the district court was clearly aware that discovery matters were pending and that Krause believed he needed to complete discovery in order to rebut the arguments advanced by the Prison in its summary judgment motion. Further, although Krause's document production request did not expressly invoke Rule 56(f), it fulfilled the requirements of that rule because it made clear what information was sought and how it would preclude summary judgment. See Garrett, 818 F.2d at 1518.

Krause was not seeking extensive discovery of questionable relevance. Rather, he was attempting to discover specific medical records that were in the sole possession of the opposing party and crucial to his argument that his medical needs had been repeatedly ignored by the prison's staff. In such circumstances, the district court abused its discretion when it entered judgment against Krause before his medical records had been produced.

REVERSED and REMANDED for further proceedings after the requested discovery has been produced.