Benkert v. TX Dept of Criminal

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20086
_____________________
PHILLIP D BENKERT
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.,
Defendants
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Docket No. H-98-CV-4122
_________________________________________________________________
August 22, 2000
Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Phillip Benkert, proceeding pro se,
appeals the district court’s entry of summary judgment in favor
of his employer, Defendant-Appellee Texas Department of Criminal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Justice (“TDCJ”). For the following reasons, we vacate the
district court’s grant of summary judgment.
I.
Benkert is a Lieutenant of Correctional Officers at TDCJ.
Benkert filed a report with TDCJ in June 1996, alleging that one
of his supervisors had violated Title VII. After that report was
filed, Benkert alleges that TDCJ retaliated against him.
Specifically, Benkert claims that his job duties were decreased,
and that he was given unfair evaluations, denied leave time, and
denied a promotion for which he had applied. After filing a
complaint with the Equal Employment Opportunity Commission,
Benkert received a right to sue letter and subsequently filed
suit against TDCJ in federal district court on December 10, 1998.
TDCJ filed motions for summary judgment in July and
September of 1999, and both motions were denied. Then, in
November 1999, TDCJ filed a “Motion to Reconsider Denial of
Motion for Summary Judgment and First Supplemental Motion for
Summary Judgment Attaching Additional Evidence.” This motion
included affidavits and other documentary evidence. Benkert
replied to this motion, but his reply did not include any
rebuttal affidavits or other evidence, and instead merely rested
on the pleadings. On November 24, 1999, TDCJ filed a
“Supplemental Motion for Summary Judgment with Additional
Attachments.” This motion was also accompanied by affidavits and
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documentary evidence. Benkert never filed a reply to this
motion.
According to Benkert, around this time relations between
Benkert and his attorney, Woodrow Epperson, were rapidly
deteriorating. Having failed to secure a written contract from
Epperson, Benkert was locked in a dispute with Epperson over fees
and strategy. On December 16, 1999, without ever filing a reply
to TDCJ’s November 24 motion for summary judgment, Epperson moved
to withdraw as Benkert’s attorney of record. The next day,
Benkert, acting pro se, filed a “Motion for Continuance to
Substitute Legal Counsel.” The district court, without ruling on
either Epperson’s motion to withdraw or Benkert’s motion for a
continuance, granted TDCJ’s supplemental motion for summary
judgment on January 4, 2000. Benkert timely appeals.
II.
We will liberally construe a pro se appellant’s arguments on
appeal. See Chriceol v. Phillips, 169 F.3d 313, 315 n.2 (5th
Cir. 1999). Thus, we read Benkert’s brief to argue that the
district court erred in failing to consider his motion for a
continuance prior to considering, and granting, TDCJ’s
supplemental motion for summary judgment. We agree.
It does not appear that the district court ever ruled on
Benkert’s motion for a continuance. We believe that Benkert’s
motion raised issues that warranted further inquiry by the
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district court. Specifically, the district court should have
inquired into the problems between Benkert and Epperson;
Benkert’s ability to retain new counsel; and Benkert’s ability to
respond to the motion for summary judgment. If the allegations
raised by Benkert in his motion are true, it may have been
appropriate to delay ruling on TDCJ’s motion for summary
judgment.
On appeal, TDCJ argues that Benkert has waived any right to
contest the district court’s decision to rule on the summary
judgment motion. TDCJ contends that Benkert’s motion never
properly asked for an enlargement of time in which to respond to
the motion for summary judgment, but merely requested that the
district court postpone the trial. Benkert’s motion belies that
argument. Contrary to TDCJ’s argument, the motion did not
overtly request a trial continuance. Indeed, the motion’s only
allusions to the trial are a reference to the trial date and to
Benkert’s belief that Epperson was not prepared for trial. Taken
as a whole, Benkert’s motion is fairly construed as a request
that the court delay any final decision in the case.
When a party opposing summary judgment is not presently able
to present adequate rebuttal evidence under Rule 56(e), the court
may “refuse the application for summary judgment or may order a
continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as
is just.” Fed. R. Civ. P. 56(f). The Supreme Court directs that
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pleadings filed by a pro se litigant are to be held to “less
stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519, 520 (1972). Viewing Benkert’s
motion to the district court in a liberal light, it is properly
construed as a Rule 56(f) motion requesting that the district
court delay consideration of TDCJ’s motion for summary judgment
and allow Benkert additional time to file rebuttal evidence.1
Rule 56(f) motions “are generally favored, and should be
liberally granted.” Stearns Airport Equip. Co., Inc. v. FMC
Corp., 170 F.3d 518, 534 (5th Cir. 1999). Given the allegations
raised in Benkert’s motion for a continuance, we believe that the
district judge should have made further inquiry into the issues
raised in Benkert’s motion prior to ruling on TDCJ’s motion for
summary judgment.
The allegations in Benkert’s motion for a continuance set
out a host of problems he had been having with his attorney.
1
A party submitting a Rule 56(f) motion is expected to submit
an affidavit in support of the motion and some courts have found
that failure to do so is grounds for refusing to grant a
continuance. See, Gurary v. Winehouse, 190 F.3d 37, 43-44 (2d
Cir. 1999). In this case, Benkert failed to submit a supporting
affidavit with his motion. This court, however, has observed
that “[w]hile a party’s failure to comply with Rule 56(f)[‘s
affidavit requirement] does not preclude consideration of the
motion, some equivalent statement, preferably in writing . . . is
expected.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
1986) (footnote ommitted); accord Washington v. Allstate Ins.
Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Given Benkert’s pro se
status and the statements contained in the motion for a
continuance, we find that his failure to submit an affidavit with
his motion was not fatal.
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Initially, we note that Epperson failed to file rebuttal evidence
to TDCJ’s first supplementary motion for summary judgment. The
Federal Rules of Civil Procedure make abundantly clear the
dangers facing a litigant who responds to a summary judgment
motion containing supplemental affidavits by merely resting on
his earlier pleadings, dangers of which Epperson should have been
well aware. See Fed. R. Civ. P. 56(e). Furthermore, Benkert’s
motion recognized that some sort of evidence needed to be
presented to rebut TDCJ’s summary judgment motions and it
suggested that such evidence was presently available, but that
Epperson had failed to present it to the court. According to
Benkert, Epperson allegedly advised Benkert that there was no
point in submitting any evidence in response to TDCJ’s motion
because it had already been denied and because it would alert
TDCJ to the nature of his evidence. Lastly, Epperson filed no
response to TDCJ’s November 24 supplemental summary judgment
motion, but stated in his December 16 motion to withdraw -
inaccurately, as best we can tell - that a response to TDCJ’s
summary judgment motion had been filed.
Moreover, the record does not indicate, and TDCJ does not
argue, that Benkert’s motion was filed for any reason other than
to request that the court defer ruling on an outstanding summary
judgment motion so that a litigant suddenly abandoned by his
counsel might obtain substitute representation and properly reply
to the outstanding motion. It does not appear that Benkert had
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previously tried to delay these proceedings or acted in a
dilatory fashion. Nor is there any indication that Epperson’s
motion to withdraw and Benkert’s subsequent motion for a
continuance were motivated by some nefarious plan to foist added
delay and expense upon TDCJ.
The allegations in Benkert’s motion outlining the conflicts
with his attorney, along with the lack of any history of delays
or dilatory tactics by Benkert, suggest to us that further
inquiry by the district court is warranted. As such, we vacate
the district court’s entry of summary judgement so that the
district judge may properly consider Benkert’s motion for a
continuance. We emphasize that we decide only that the district
judge should have made further inquiry about Benkert’s problems
with his counsel, his ability to retain new counsel and his
ability to respond (with or without counsel) to the summary
judgment motion. We do not, however, venture an opinion as to
what the outcome of further inquiry by the district court should
be. Nor do we preclude the entry of summary judgment at the
conclusion of that inquiry or at a later date.
III.
For the above stated reasons, we VACATE the district court’s
entry of summary judgment and remand for consideration of
Benkert’s motion for a continuance. Costs shall be borne by
TDCJ.
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