Dixon v. Nelson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 10 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

CAIN DIXON, JR.,

Plaintiff-Appellant, v. No. 97-3039 MICHAEL A. NELSON, Warden, (D.C. No. 96-3174-KHV) El Dorado Correctional Facility; (D. Kan.) EDWARD F. MEDLIN, Security Captain, EDCF; ROBERT KECKLER, Unit Team, EDCF; RANDY JOHNSON, CSI-EDCF,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff Cain Dixon, Jr., appearing pro se, appeals the district court’s order

entering summary judgment in favor of defendants on his claims brought pursuant

to 42 U.S.C. § 1983. We affirm.

Plaintiff, a prison inmate, alleges that defendants, who are prison

personnel, interfered with his medically prescribed treatment plan and retaliated

against him for exercising his rights through the prison grievance procedure to

complain about their conduct. On appeal, he asserts that he should have been

afforded an opportunity to conduct discovery and then amend his complaint

before summary judgment was entered. He also challenges the district court’s

application of the doctrine of res judicata and its determination that his retaliation

claims failed to state a cause of action.

We first address plaintiff’s claim that summary judgment was improper

because he did not have an opportunity to conduct discovery. The rule

authorizing summary judgment does not require that discovery be completed

before summary judgment is entered. See Public Serv. Co. v. Continental Cas.

Co., 26 F.3d 1508, 1518 (10th Cir. 1994). A party seeking discovery to permit

him to oppose summary judgment must file an affidavit pursuant to Fed. R. Civ.

P. 56(f) showing with specificity how the discovery will enable him to rebut the

movant’s allegations of no genuine issue of material fact. See Jensen v.

Redevelopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993). Here, plaintiff’s

-2- generalized claim that discovery was necessary for him to present evidence to

support his claims falls short of the showing required. Therefore, the district

court did not err in entering summary judgment absent discovery.

We review the grant of summary judgment de novo, applying the same

standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated

Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is

appropriate when there is no genuine dispute over a material fact and the moving

party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935

F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most

favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski

Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).

We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Applying the standards set out above, we affirm the

summary judgment order for substantially the same reasons stated in the district

court’s memorandum and order dated January 17, 1997, and entered on the docket

on January 23, 1997.

-3- The judgment of the United States District Court for the District of Kansas

is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay Circuit Judge

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