Johnson v. Bureau of Prisons

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 11 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GLENN ALEC JOHNSON,
Plaintiff - Appellant,
v. No. 01-3179
(D.C. No. 99-CV-3239-KHV)
BUREAU OF PRISONS; CINDY (D. Kansas)
HOWARD, Case Manager, United
States Penitentiary, Leavenworth;
KATHLEEN (NMN) HAWK, Bureau
of Prisons Director; DEBRA
BENNETT; D. CLARK,
Administrative Remedy Coordinator;
K. SCHMIDT, Administrative
Remedy Coordinator;
E.D. CROSLEY, Administrator;
M.L. MALLISHAM, Regional
Director, South Central Region;
M.E. BUDL, Administrative Remedy
Coordinator; L. JENKINS,
Administrative Remedy Coordinator;
W. L. ROAL, Administrative Remedy
Coordinator; P. TRUE, Warden;
R.E. HOLT, Warden;
T. (NMI) JOHNS, Captain, United
States Penitentiary, Leavenworth;
W.C. HENDERSON, Captain, United
States Penitentiary, Beaumont;
D. WHAL, Attorney, United States
Penitentiary, Beaumont;
A. MENDEZ, Lieutenant, United
States Penitentiary, Leavenworth;
B. DAVIS, Officer, United States
Penitentiary, Leavenworth;
(NFN) FINNERTY, Lieutenant,
United States Penitentiary,
Leavenworth; CHARLES MILDNER,
Lieutenant, United States
Penitentiary, Leavenworth;
SAMUEL W. KING, Officer, United
States Penitentiary, Leavenworth;
(NFN) HOFF, Officer, United States
Penitentiary, Leavenworth;
WILLIAM LINKENFELTSER, Unit
Manager, United States Penitentiary,
Leavenworth; KENNETH F. ZINK,
JR., Counselor, United States
Penitentiary, Leavenworth;
RICHIE D. SWANSON, Counselor,
United States Penitentiary,
Leavenworth; J. SIMEON,
Lieutenant, United States
Penitentiary, Beaumont; B. SMALL,
Lieutenant, United States
Penitentiary, Beaumont;
M. WATKINS, Lieutenant, United
States Penitentiary, Beaumont;
J.E. THOMAS, Case Manager,
United States Penitentiary;
Beaumont; E.R. BUSH, Case
Manager, United States Penitentiary,
Beaumont; (NFN) LOPEZ, Officer,
United States Penitentiary,
Beaumont; C. CLARK, Case
Manager, United States Penitentiary,
Beaumont; R.L. CLARK, Lieutenant,
United States Penitentiary,
Beaumont; B.J. JONES, Counselor,
United States Penitentiary,
Beaumont; M. SCHULDT, Teacher,
United States Penitentiary, Beaumont,
Defendants - Appellees.
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ORDER AND JUDGMENT *
Before LUCERO , PORFILIO and ANDERSON , 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Glenn A. Johnson, a federal inmate appearing pro se , appeals the
district court’s grant of summary judgment in his civil rights action brought
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics , 403 U.S. 388 (1971). Johnson’s complaint alleged that defendants
violated his constitutional rights when they placed him in administrative detention
and transferred him from a Kansas to a Texas federal penitentiary. 1
We affirm.
*
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.
1
Johnson’s complaint was initially filed in the District Court for the District
of Columbia. That court dismissed numerous defendants because they were not
proper defendants in a Bivens claim. None of the remaining defendants resided in
the District of Columbia. Concluding that venue was therefore improper, the
court transferred the case to the District Court for the District of Kansas.
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The defendants filed a motion to dismiss or for summary judgment on
September 11, 2000. On October 11, 2000, Johnson filed an untimely request for
an extension of time to respond. See D. Kan. R. 6.1 (a) and (e) (requiring
response to summary judgment motion be filed within twenty days of motion’s
filing date and any request for extension of time be filed within that deadline).
The district court granted Johnson a two-month extension, until December 11,
2000. Johnson failed to respond. On February 14, 2001, the district court
ordered Johnson to show cause why the defendants’ motion should not be granted
as unopposed. Johnson again failed to respond by the deadline.
On March 15, 2001, Johnson filed an untimely response and request for
an additional extension of time. He claimed that he had been transferred to
a different prison facility on October 19, 2000 and transferred again several times
thereafter. He stated that, when he finally received his personal property on
January 3, 2001, he discovered that his copy of defendants’ motion for summary
judgment was missing. As a result, he claimed it was impossible to have filed
a timely response to the summary judgment motion. He requested an additional
extension of time.
The district court denied the extension request. It concluded that Johnson
was not entitled to any further extensions of time because he had been transferred
in October 2000 and knew his legal materials were missing on January 3, 2001,
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but did not request a further extension of time until March 15, 2001. Because
Johnson failed to timely seek an extension of time to respond under D. Kan. R.
6.1(a) and (e)(2), the district court treated defendants’ summary judgment motion
as uncontested pursuant to D. Kan. R. 7.4 (stating that a motion not opposed
within the time required will be considered and decided as an uncontested
motion). It then ruled that the motion was well-taken on the merits. See
Fed. R. Civ. P. 56(e) (stating that summary judgment, if appropriate, shall be
entered against the adverse party who fails to respond by setting forth specific
facts showing that there is a genuine issue for trial).
We review the district court’s denial of an extension of time for an abuse of
discretion. See Ellis v. Univ. of Kan. Med. Ctr. , 163 F.3d 1186, 1193 (10th Cir.
1998). An abuse of discretion will be found only where the district court makes
“an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.”
United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991)
(quotations omitted). Johnson has not made this showing. Though he claims he
did not receive a copy of the district court’s show cause order until February 28,
2001, that fact does not explain why he failed to file a timely request for an
additional extension of time before the December 11, 2000 deadline. The district
court granted Johnson a very generous two-month extension of time to respond to
the summary judgment motion. As early as October 19, 2000, Johnson was aware
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that he either lacked access to or did not have a copy of defendants’ motion for
summary judgment. Yet, during that two-month period, he took no action to
explain his predicament to the district court. He then waited three months after
the response deadline before requesting an extension of time. Under these
circumstances, the district court did not abuse its discretion in denying Johnson’s
untimely request for an additional extension of time or in finding that defendants’
motion for summary judgment was uncontested.
We review the grant of summary judgment de novo, applying the same legal
standard used by the district court. L & M Enter., Inc. v. BEI Sensors & Sys. Co. ,
231 F.3d 1284, 1287 (10th Cir. 2000) (citation omitted). After careful review of
the record, we discern no error in the district court’s ruling that the summary
judgment motion was well-taken on the merits.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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