Taylor v. Ponca City ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 30 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD L. TAYLOR,
an individual,
Plaintiff-Appellant-
Cross-Appellee,
v. 96-6245 & 96-6258
(D.C. No. 95-CIV-1650-M/L)
RAYMOND E. HAM, individually (W.D. Okla.)
and in his official capacity as Chief
of Police of the Ponca City Police
Department,
Defendant-Appellee-
Cross-Appellant,
CITY OF PONCA CITY, Oklahoma,
ex rel. Ponca City Police Department,
Defendant-Appellee,
and
EVERETTE VAN HOESEN,
individually, and in his official
capacity as Assistant Police Chief;
BOB STIEBER, individually and in
his official capacity as President of
Fraternal Order of Police, Lodge
No. 103; DON RAY, individually
and in his official capacity as Vice-
President of Fraternal Order of Police,
Lodge No. 103 and Grievance
Chairperson; FRATERNAL ORDER
OF POLICE, Lodge No. 103, an
unincorporated association of Ponca
City Police Officers; GARY MARTIN,
Defendants.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
Plaintiff Richard Taylor was discharged from his position as an officer with
the Ponca City, Oklahoma, police department after being involved in a one-car
accident in which he was the driver and the passenger was killed. In appeal No.
96-6245, plaintiff appeals the district court’s entry of summary judgment in favor
*
This order and judgment is not binding precedent, except under the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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
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of Chief Raymond Ham and the City of Ponca City on his claims that he was
deprived of both property and liberty interests without due process in connection
with his discharge. Plaintiff also appeals the district court’s denial of his motion
under Fed. R. Civ. P. 56(f) for an extension of time to take further discovery
before responding to defendants’ summary judgment motion.
In appeal No. 96-6258, Chief Ham cross-appeals the district court’s
May 22, 1996 ruling that he submit to a deposition. Chief Ham objects to the
district court having ordered him to submit to discovery before ruling on his
qualified immunity defense. In its final order of June 10, 1996, the district court
determined that Chief Ham was qualifiedly immune, and entered judgment against
plaintiff on all claims. Although the district court’s final order obviated the need
for Chief Ham to submit to a deposition, he filed the present protective
cross-appeal in the event we reverse the district court’s ruling on the merits of
plaintiff’s claims. Chief Ham acknowledges that his cross-appeal will be moot if
we affirm the district court’s final order of June 10, 1996.
Appeal No. 96-6245
We review the district court’s ruling on plaintiff’s Rule 56(f) motion under
an abuse of discretion standard. See International Surplus Lines Ins. Co. v.
Wyoming Coal Ref. Sys. Inc., 52 F.3d 901, 904 (10th Cir. 1995). “When a party
files an affidavit under Rule 56(f) for additional discovery time, . . . [t]he trial
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court may deny the affiant’s request for additional time, deny the motion for
summary judgment, order a continuance for additional discovery or make such
other order as is just.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d
1550, 1553-54 (10th Cir. 1993) (citations and quotation omitted).
A party seeking time to conduct additional discovery under Rule 56(f) must
provide an affidavit identifying what facts are not available and what steps the
party has taken to obtain those facts. See Committee for the First Amend. v.
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). “Rule 56(f) may not be invoked
by the mere assertion that discovery is incomplete or that specific facts necessary
to oppose summary judgment are unavailable . . . .” Pasternak v. Lear Petroleum
Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986). “Furthermore, if the party
filing the Rule 56(f) affidavit has been dilatory, or the information sought is
irrelevant to the summary judgment motion or merely cumulative, no extension
will be granted.” Jensen, 998 F.2d at 1554.
Here, plaintiff did not file an affidavit as such. Rather, his counsel filed a
motion and brief, to which he attached his affidavit stating that all factual
averments contained in the motion and brief were true to the best of his
knowledge. Even if construed as the required affidavit, these documents did not
meet the requirements of Rule 56(f). They neither set forth the specific facts
plaintiff needed to discover, nor explained how such facts would have been useful
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to oppose defendants’ motion. See Jensen, 998 F.2d at 1554-55. Further, the
record reflects that plaintiff was dilatory in pursuing discovery before filing the
Rule 56(f) motion. Under the circumstances, the district court did not abuse its
discretion in denying plaintiff’s Rule 56(f) motion.
We turn then, to the district court’s grant of summary judgment to Chief
Ham and the City of Ponca City on plaintiff’s due process claims. We review the
grant of summary judgment de novo, applying the same standards as the district
court under Rule 56(c). See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796
(10th Cir. 1995).
Plaintiff contended that the City and Chief Ham deprived him of his
property interest in employment without due process. Primarily, plaintiff attacked
the pretermination process he was given, in part because it did not completely
conform to the process outlined in the collective bargaining agreement between
the City and the police union. Plaintiff also attacked the post-termination process
he was given, alleging that the City had refused to cooperate in the de novo
arbitration hearing provided for by the collective bargaining agreement. The
district court acknowledged that plaintiff had a property interest in his
employment, but concluded that he received all the process he was due under
federal law. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
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545-57 (1985) (discussing the pre- and post-termination process due a tenured
public employee under federal law).
Plaintiff also contended that defendants deprived him of his liberty interest
by making public statements suggesting that he was guilty of the criminal
offenses with which he had been charged, without giving him an appropriate
name-clearing hearing. The district court concluded that plaintiff failed to
establish that defendants infringed his liberty interests. Specifically, the district
court determined that plaintiff failed to establish through admissible evidence
either that defendants published information about plaintiff that was false and
stigmatizing or that the alleged publication of such information foreclosed future
employment opportunities. See, e.g., Watson v. University of Utah Med. Ctr., 75
F.3d 569, 579 (10th Cir. 1996) (setting forth elements of claim for liberty
deprivation).
The district court further ruled that Chief Ham was qualifiedly immune
from plaintiff’s claims, because plaintiff failed to establish that Chief Ham’s
actions violated any constitutional right. See, e.g., Pueblo Neighborhood Health
Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988) (holding that, to
overcome a qualified immunity defense, a plaintiff must “show both that the
defendant’s alleged conduct violated the law and that the law was clearly
established when the alleged violation occurred”). Similarly, the court ruled that
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plaintiff failed to establish any liability on the part of the City, because he failed
to show the deprivation of any constitutional right, much less a causal link
between a constitutional deprivation and any custom or policy of the City. See,
e.g., Jenkins v. Woods, 81 F.3d 988, 993 (10th Cir. 1996) (“To establish
municipal liability, a plaintiff must show (1) the existence of a municipal custom
or policy and (2) a direct causal link between the custom or policy and the
violation [of a federally protected right] alleged.”)
Based upon our review of the record, the parties’ briefs, and the controlling
law, we conclude that the district court properly granted summary judgment to
defendants City of Ponca City and Chief Raymond Ham on plaintiff’s claims for
deprivation of property and liberty interests without due process. We, therefore,
AFFIRM the judgment of the United States District Court for the Western District
of Oklahoma for substantially the reasons set forth in its Order of June 10, 1996.
Our affirmance of the district court’s final order moots Chief Ham’s protective
cross-appeal in No. 96-6258, which is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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