David Montgomery v. Darin L. Morgan Bruce W. Meek Robert J. Herring Brian Peters Ray Stagner Mark Hoaglund

107 F.3d 876, 1997 U.S. App. LEXIS 7331, 1997 WL 49533

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 10, 1997
• Docket: 96-1742
• Status: Unpublished

Opinion

107 F.3d 876

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
David MONTGOMERY, Appellant,
v.
Darin L. MORGAN; Bruce W. Meek; Robert J. Herring; Brian
Peters; Ray Stagner; Mark Hoaglund, Appellees.

No. 96-1742.

United States Court of Appeals, Eighth Circuit.

Submitted Feb. 4, 1997.
Filed Feb. 10, 1997.

Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

PER CURIAM.

David Montgomery, a Missouri inmate, appeals the district court's1 adverse grant of summary judgment on his 42 U.S.C. § 1983 complaint. We affirm.

We reject Montgomery's argument that the district court erred in not extending the discovery period, as Montgomery did not move for additional discovery after amending his complaint, nor did he request a delayed ruling on the summary judgment motion based on the need for additional discovery, and file an affidavit under Federal Rule of Civil Procedure 56(f). See United States v. Birchem, 100 F.3d 607, 609-10 (8th Cir.1996) (summary judgment not premature based on need for additional discovery where party did not seek delayed ruling or file affidavit under Rule 56(f)). We also reject Montgomery's claim the magistrate judge was prejudiced, as Montgomery did not move for the magistrate judge's recusal, and he has not shown there were circumstances in which the magistrate judge should have recused himself sua sponte. See West v. United States, 994 F.2d 510, 512 (8th Cir.1993) (court's failure to recuse itself reviewed for abuse of discretion); United States v. Walker, 920 F.2d 513, 517 (8th Cir.1990) (judge presumed impartial; party seeking recusal bears substantial burden of proving otherwise).

Accordingly, We affirm.

1 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri, adopting the report and recommendation of the Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri