United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE.
Melvin Hale brings this action pro se against seven individual
defendants, alleging that defendants retaliated against him
after he exercised his right to speak out against
discrimination and racism. Plaintiff asserts a First
Amendment retaliation claim under 42 U.S.C. § 1983
against each defendant in his or her individual capacity. On
September 6, 2017, the court entered a Scheduling Order in
the case establishing a discovery deadline of March 2, 2018,
and a dispositive motion deadline of April 6, 2018.
long after the court issued the Scheduling Order, on October
23, 2017, plaintiff filed a Motion for Summary Judgment. Doc.
34. His motion seeks summary judgment in his favor on his
First Amendment retaliation claim. Id. at 1.
Plaintiff contends that “the undisputed evidence
conclusively shows that Defendants violated [his] First
Amendment Rights” and “there are no genuine
issues of material.” And so, he asks the court to grant
his motion for summary judgment. Id. at 5. Plaintiff
recognizes that, if the court grants his motion,
“[s]uch a ruling would leave the appropriate
compensatory, exemplary and punitive damages, if any, as the
issues to be resolved at trial.” Id.
have responded to plaintiff's Motion for Summary Judgment
by filing an Application for Dismissal or Stay of
Defendants' Opposition to Plaintiff's Motion for
Summary Judgment. Doc. 39. Invoking Federal Rule of Civil
Procedure 56(d), defendants ask the court to deny
plaintiff's summary judgment motion without prejudice or
defer considering the motion to allow defendants additional
time to discover the facts essential to justify their
Opposition to the summary judgment motion.
Rule of Civil Procedure 56(d) provides: “If 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
appropriate order.” The Tenth Circuit has held that the
general principle of Rule 56(d) is that “‘summary
judgment [should] be refused where the nonmoving party has
not had the opportunity to discover information that is
essential to his opposition.'” Price v. W.
Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
n.5 (1986)) (interpreting the same rule formerly codified as
Rule 56(f)). But, a party must do more than assert
“that the evidence supporting [the party's]
allegation is in the hands of the [opposing party].”
Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir.
1985). Instead, the party must identify with some degree of
specificity the facts it believes that additional discovery
will uncover. See Jensen v. Redevelopment Agency of Sandy
City, 998 F.2d 1550, 1554 (10th Cir. 1993).
“Unless dilatory or lacking in merit, ” a
party's Rule 56(d) request “should be liberally
treated.” Id. at 1554 (citation and internal
quotation marks omitted). The decision to grant additional
discovery under Rule 56(d) is within the district court's
discretion. 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)]
with Rule 56(d), defendants' counsel has submitted an
affidavit supporting the request to deny or defer
consideration of plaintiff's summary judgment motion. In
it, defense counsel asserts that the parties have not yet
taken any depositions in the case. Indeed, as noted,
discovery does not close until March 2, 2018. Defense counsel
also asserts that plaintiff's motion significantly relies
on declarations signed by plaintiff and his wife. Also, they
rely on transcripts of conversations that either plaintiff or
his wife allegedly recorded. Defense counsel asserts that
defendants need more time to depose plaintiff and his wife to
ask about the information contained in their declarations,
the facts alleged in the Complaint, and other, relevant
discovery topics. Defense counsel also asserts that
defendants need more time to discover facts relevant to the
claims and defenses asserted in this action because such
facts are essential to their Opposition to plaintiff's
summary judgment motion.
opposes defendants' motion. He asserts that a Tenth
Circuit case cited in defendants' motion favors him, and
so the court should overrule defendants' Rule 56(d)
motion. The case is Trans-Western Petroleum, Inc. v.
United States Gypsum Co., 830 F.3d 1171 (10th Cir.
2016). In it, the Tenth Circuit held that a district court
did not abuse its discretion by denying a defendant's
Rule 56(d) motion. Id. at 1175-76. At the same time,
the Circuit recognized that “discovery is the norm
prior to granting summary judgment, ” and that a
district court should not grant summary judgment
“‘where the nonmoving party has not had the
opportunity to discover information that is essential to his
opposition.'” Id. at 1175 (quoting
Anderson, 477 U.S. at 250 n.5). But, in
Trans-Western, the Circuit concluded that the
defendant had not satisfied that standard because it had
offered only “vague, general statements of what [it]
hoped to discover, ” which was a “far cry from
the ‘facts essential to justify its opposition'
required by [Rule] 56(d).” Id. at 1176. Those
facts differ significantly from the ones here. Through
defense counsel's affidavit, defendants have provided
specific facts that they have not yet had the opportunity to
discover but intend to seek through written discovery and
depositions. Defendants also explain why these facts are
essential to their Opposition to plaintiff's Motion for
Summary Judgment. This showing satisfies Rule 56(d)'s
the factual issues presented in plaintiff's motion and
that no depositions have occurred in the case to date, the
court finds it is premature to consider plaintiff's
summary judgment motion without providing defendants an
opportunity for discovery. Indeed, many of the facts that
plaintiff relies on to support his motion will turn on issues
that only additional discovery can reveal. Exercising its
discretion, the court denies plaintiff's Motion for
Summary Judgment (Doc. 34) as premature, but without
prejudice to later refiling after full discovery is complete.
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's Motion for Summary Judgment (Doc. 34) is
denied without prejudice.
IS FURTHER ORDERED that defendants' Application
for Dismissal or Stay of Defendants' Opposition to
Plaintiff's Motion for Summary Judgment (Doc. 39) is
IS SO ORDERED.
 Because plaintiff proceeds pro se, the
court construes his pleadings liberally. Hall v.
Bellmon, 935 F.2d 1106, ...