Scott Tyree v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [999734793-2] Originating case number: 5:14-ct-03158-BO Copies to all parties and the district court/agency. [999780323]. Mailed to: Scott Tyree FCI ELKTON FEDERAL CORRECTIONAL INSTITUTION P. O. Box 10 Lisbon, OH 44432. [15-7528]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7528

SCOTT TYREE,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:14-ct-03158-BO)

Submitted:

February 19, 2016

Decided:

March 23, 2016

Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Vacated and remanded by unpublished per curiam opinion.

Scott Tyree, Appellant Pro Se. Michael Bredenberg, Special
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Scott William Tyree, a federal prison inmate, appeals from
the

district

court’s

order

granting

summary

judgment

to

the

Government in Tyree’s suit filed under the Federal Tort Claims
Act (“FTCA”).

Tyree alleged that prison officials failed to

protect him from, and failed to respond in a timely manner to,
an

attack

by

affidavits

his

cellmate.

accompanying

district

court

its

ruled

Based

motion

that

upon

for

the

the

summary

prison

Government’s
judgment,

guards

the

responded

immediately to the altercation, and that Tyree did not assert a
claim

that

prior

to

district

prison
the

officials

attack.

court

should

On

abused

have

appeal,

its

Tyree

discretion

judgment prior to discovery.

known

of

the

contends

in

danger

that

entering

the

summary

We agree and remand for further

proceedings.
We

“review

judgment,

de

viewing

novo
the

a

district

facts

and

court’s

award

inferences

of

summary

reasonably

drawn

therefrom in the light most favorable to the nonmoving party.”
Woollard

v.

Gallagher,

712

F.3d

865,

873

(4th Cir.

2013).

“Summary judgment is appropriate only if the record shows ‘that
there is no genuine dispute as to any material fact and the
movant

is

entitled

to

judgment

Id. (quoting Fed. R. Civ. P. 56(a)).

as

a

matter

of

law.’”

The relevant inquiry on

summary judgment is “whether the evidence presents a sufficient
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disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

prevail

as

a

matter

of

law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
To

withstand

a

summary

judgment

motion,

the

non-movant

must

produce competent evidence sufficient to reveal the existence of
a genuine issue of material fact for trial.
Potomac

Elec.

Power

Co.,

312

F.3d

645,

See Thompson v.

649

(4th

Cir.

2002)

(“Conclusory or speculative allegations do not suffice, nor does
a

mere

scintilla

of

evidence

in

support

of

[the

non-moving

party’s] case.” (internal quotation marks omitted)).

We will

uphold the district court’s grant of summary judgment unless we
conclude that a reasonable jury could return a verdict for the
non-moving party on the evidence presented.

See EEOC v. Cent.

Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).
Under

the

FTCA,

the

Government

has

waived

sovereign

immunity for “the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office

or

employment.”

28

U.S.C.

§

1346(b)

(2012).

With

respect to federal prisoners, the Supreme Court has determined
that the duty of care owed by the Bureau of Prisons (“BOP”) is
fixed

by

18

U.S.C.

inconsistent state rule.
164-65 (1963).

§

4042

(2012),

independent

of

any

United States v. Muniz, 374 U.S. 150,

The BOP’s duty of care owed to a prisoner is

“the exercise of ordinary diligence to keep prisoners safe and
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free from harm.”
Cir. 1976).
only

be

personnel

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Jones v. United States, 534 F.2d 53, 54 (5th

Regarding prisoner placement, BOP personnel can

deemed
knew

negligent
or

in

reasonably

problems between inmates.

violation
should

have

of

this

known

duty

of

when

potential

Parrott v. United States, 536 F.3d

629, 637 (7th Cir. 2008).
Rule 56(d) requires “that summary judgment be refused where
the

nonmoving

party

has

not

had

the

opportunity

information that is essential to his opposition.”

to

discover

Nguyen v. CNA

Corp., 44 F.3d 234, 242 (4th Cir. 1995) (addressing predecessor
to Rule 56(d)) (internal quotation marks omitted).

The rule “is

intended as a safeguard against a premature grant of summary
judgment.”

King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994).

Requests pursuant to the rule should be denied, however, “if the
additional

evidence

sought

for

discovery

would

not

have

by

itself created a genuine issue of material fact sufficient to
defeat summary judgment.”

Ingle v. Yelton, 439 F.3d 191, 195

(4th Cir. 2006) (addressing predecessor to Rule 56(d)) (internal
quotation marks omitted).

We will not reverse the denial of a

Rule 56(d) request unless there was “a clear abuse of discretion
or, unless there is a real possibility the party was prejudiced
by the denial of an extension.”

Id.

Here, Tyree, acting pro se, urged the district court to
defer ruling on the motion for summary judgment until after he
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had an opportunity for discovery.
that

the

parties

events.

Tyree

were

in

claimed

Specifically, Tyree asserted

disagreement

that,

after

about
an

the

timeline

of

light

was

emergency

activated in his cell, he was beaten by his cellmate for five
minutes before officers arrived.
responded immediately.
written

reports

determining

in

the

The officers averred that they

Tyree claims that video surveillance and

the

actual

control
timeline.

of

the

BOP

Tyree

would

also

assist

asserted

in

that

prison records could show whether his cellmate had anything on
his record that would have indicated that he should not have
been

housed

emergency
officer

with

system

stated

Tyree.
was

that

Tyree

fully
they

also

questioned

operational,

heard

the

given

emergency

whether
that

tone

the

neither
that

designed to activate together with the emergency light.

is
The

district court did not address Tyree’s contentions or rule on
Tyree’s motion.
We find that discovery on these topics would potentially
have

created

a

genuine

defeat summary judgment.

issue

of

material

fact

sufficient

to

Accepting Tyree’s assertions as true,

prison officials did not respond for over five minutes after the
emergency

light

was

activated.

The

record

is

devoid

of

information regarding whether this alleged five minute delay was
reasonable.

See Palay v. United States, 349 F.3d 418, 432 (7th

Cir. 2003) (providing scenarios whereby failure to respond in
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constitute

negligence).

Given

that

the

affidavits in the record do not describe the same timeline and
that

Tyree’s

discovery

requests

could

result

in

relevant

evidence to which he would otherwise have no access, we conclude
that the district court’s failure to rule on Tyree’s Rule 56(d)
motion was an abuse of discretion.
While we express no opinion on the Government’s defenses
that were not addressed by the district court or the scope of
proper

discovery,

granting

summary

we

find

judgment

that

the

based

district

solely

on

disputed timeline without permitting discovery.
vacate

and

motion

to

remand
grant

for
appeal

further
by

proceedings.

default.

We

court
the

erred

in

Government’s

Accordingly, we
We

deny

dispense

Tyree’s

with

oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED

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