Safwat Soliman v. Mike Johanns ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2096
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Safwat Soliman, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Mike Johanns, Secretary, United *
States Department of Agriculture, * [PUBLISHED]
*
Appellee. *
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Submitted: February 7, 2005
Filed: June 20, 2005
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Before BYE, RILEY, and COLLOTON, Circuit Judges.
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RILEY, Circuit Judge.
Safwat Soliman (Soliman) appeals the district court’s1 adverse grant of
summary judgment in his Title VII action. In Soliman’s counseled complaint, he
sought damages from the Secretary of the United States Department of Agriculture
(Secretary), claiming he had been terminated from his job as a meat inspector, and
had been subjected to a hostile work environment because of his Arabic descent and
Egyptian national origin. The Secretary moved for summary judgment on March 3,
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
2004, and on March 8, Soliman, who by then was proceeding pro se, moved to extend
the deadline “to apply for” summary judgment. The magistrate judge2 interpreted this
language as also meaning “to respond to” the March 3 summary judgment motion,
and gave Soliman until April 5 to do so. In another order entered March 23, the
magistrate judge warned that the March 3 summary judgment motion would be
deemed submitted for decision no later than April 5, and no further extensions for a
response would be granted. On March 29, Soliman notified the court he was living
in Michigan temporarily, as his father had died there on March 19; he attached a copy
of a death certificate; and he requested another ninety days “to apply for” summary
judgment. The magistrate judge summarily denied the extension on April 7. The
district court granted the Secretary’s summary judgment motion on April 8.
We review for abuse of discretion a district court’s denial of a request for an
extension to file a summary judgment response. Griffin v. Super Valu, 218 F.3d 869,
870 (8th Cir. 2000). Soliman argues the district court should have granted his March
29 motion for an extension, because he suffered from extreme family hardship due
to the unexpected death of his father. While we sympathize with Soliman’s situation
and may have taken different action than did the district court, we cannot say the
district court abused its considerable discretion in denying Soliman’s March 29
motion for an extension. The district court did not preclude Soliman from filing a
response to the Secretary’s motion for summary judgment. Rather, it merely enforced
a deadline governing the timing of submissions and denied any enlargement beyond
the extension of time already granted. See Biby v. Kansas City Life Ins. Co., 629
F.2d 1289, 1293 (8th Cir. 1980) (holding it is critical to the trial court’s power of
control over its own docket and its ability to serve effectively all litigants that it
maintain control over progress of cases before it, including requests for extensions
of time). Even pro se litigants must comply with court rules and directives. See
2
The Honorable F. A. Gossett, III, United States Magistrate Judge for the
District of Nebraska.
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Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983) (per curiam) (declaring pro
se parties are not excused from complying with procedural and substantive law).
The district court gave Soliman one extension before his father’s death, and the
district court thereafter warned Soliman it would not grant any further extensions.
Although Soliman asserts he was residing out of state when the court entered an order
warning of no further extensions, a litigant who invokes the processes of the federal
courts is responsible for maintaining communication with the court during the
pendency of his lawsuit. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per
curiam) (“A party, not the district court, bears the burden of keeping the court
apprised of any changes in his mailing address.”). Soliman waited until several days
after his father’s death and within a few days of the revised deadline to file his March
29 extension motion. See Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987) (per
curiam) (holding district court did not abuse its discretion in ruling on summary
judgment motion where, inter alia, plaintiff had been given repeated notices court
intended to rule on motion and it was plaintiff’s burden to rebut defendant’s
evidence). We further note that, although the district court did not abuse its
discretion in denying Soliman’s motion for an extension, the district court also would
have been well within its discretion in granting the motion.
As to the merits, we must determine whether entry of summary judgment was
proper despite Soliman’s failure to respond to the motion. See Jacob-Mua v.
Veneman, 289 F.3d 517, 520 (8th Cir. 2002) (summary judgment standard of review);
United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1 (8th Cir. 1994)
(failure to respond to summary judgment motion does not automatically compel
resolution of appeal in favor of moving party). We decline to consider the documents
Soliman submitted for the first time on appeal. See Griffin, 218 F.3d at 871.
To establish a prima facie case of race and national-origin discrimination based
on circumstantial evidence, as Soliman attempted to do below, he had to show, among
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other things, that he adequately was performing his meat-inspector job, and he
suffered an adverse employment action under circumstances permitting an inference
of discrimination. See Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001).
Given the numerous serious complaints the supervisory veterinary medical officer
received from Soliman’s trainers and coworkers–within a few months of Soliman’s
employment, and while he was on probation and presumably on his best behavior–
we agree with the district court that Soliman failed to establish trialworthy issues on
these elements. We also agree with the district court that the incidents Soliman
reported to the supervisory officer did not create a jury issue as to a hostile work
environment based on Soliman’s race and national origin. Cf. Burkett v. Glickman,
327 F.3d 658, 662 (8th Cir. 2003) (for hostile work environment claim to succeed,
conduct must be so extreme as to change terms and conditions of employment).
Finally, neither Soliman’s assertions of judicial bias and ineffective assistance of
counsel, nor the magistrate judge’s denial of Soliman’s discovery-related motions,
provides a basis for reversal. See Sheets v. Butera, 389 F.3d 772, 780 (8th Cir. 2004)
(reversal of discovery rulings is unwarranted absent gross abuse of discretion
resulting in fundamental unfairness); Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.
1988) (rejecting ineffectiveness of counsel claim, as there is no constitutional or
statutory right to counsel in civil case).
Finally, the district court did not allow Soliman ten days to object to the
magistrate judge’s order as provided under Federal Rule of Civil Procedure 72(a).
The district court entered its order granting summary judgment only one day after the
magistrate judge denied Soliman’s second motion for an extension of time. Upon a
timely objection to a magistrate’s order disposing of a nondispositive matter, a
litigant is entitled to have the district court “consider such objection[ ] and . . . modify
or set aside any portion of the magistrate judge’s order found to be clearly erroneous
or contrary to law.” Fed. R. Civ. P. 72(a). Here, Soliman could have argued he was
prejudiced by the district court’s failure to observe the ten-day rule. However, after
independently reviewing Soliman’s appellate briefs and the record, we conclude
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Soliman has not proposed any non-frivolous argument, nor do we discover any non-
frivolous issue, which would convince us the district court erred in failing to wait ten
days before entering summary judgment. We hold, therefore, that the district court’s
failure in this case to observe the ten-day rule was harmless and does not constitute
reversible error. See, e.g., Habets v. Waste Mgmt., Inc., 363 F.3d 378, 381-82 (5th
Cir. 2004) (permitting district court to adopt magistrate judge’s recommendation,
under Fed. R. Civ. P. 72(b), one day after receiving the recommendation and before
receiving any objections).
Accordingly, we affirm.
BYE, Circuit Judge, dissenting.
I respectfully dissent. Under Federal Rule of Civil Procedure 6(b)(1), the
district court “for cause shown may at any time in its discretion” order a period
enlarged if a request therefor is made before the originally prescribed period ends.
In my view, the magistrate judge abused his discretion by denying Soliman another
extension, given the death of Soliman’s father and his consequent need to reside
temporarily out of state, the fact that his extension motion was unopposed, and the
brief time (36 days) between the filing of the summary judgment motion and the
district court’s final order. Cf. Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 108
(1st Cir. 1995) (in deciding motion for extension of time, district court’s failure to
allow for factors beyond party’s control, such as counsel’s unexpected illness, may,
in certain cases, constitute abuse of discretion). I note that the magistrate judge’s
warning that no more extensions would be granted appeared in a March 23 order,
when Soliman was already out of the state because of his father’s death. Further,
Soliman was not given time to object to the magistrate judge’s April 7 denial of
another extension before the district court issued its April 8 final order. See Fed. R.
Civ. P. 72(a) (within 10 days after being served copy of magistrate judge’s order on
nondispositive matters, party may serve and file objections to order, and thereafter
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may not assign as error defect in order to which objection was not timely made). I
would therefore reverse the grant of summary judgment and remand for further
proceedings.
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