McCormick v. Roberts et al

Filing 115

MEMORANDUM AND ORDER denying 90 Motion for Order. Signed by District Judge Monti L. Belot on 3/7/2013. Plaintiff's motion is denied. No motion for reconsideration, however styled, will be entertained. Plaintiff is ordered to file a respons e to defendant's motion for summary judgment on or before March 27, 2013. (Doc. 83 ). No request for additional time will be considered. The failure to fully comply with Rule 56, this court's Rule 56.1 and applicable case authority will result in the court striking plaintiff's response and considering defendants' motion as uncontested. Mailed to pro se party Dale E. McCormick by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DALE MCCORMICK,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
RAY ROBERTS, et al.,
Defendants.

CIVIL ACTION
No.

11-3130-MLB

MEMORANDUM AND ORDER
This case comes before the court on plaintiff’s Fed. R. Civ. P.
56(d)

motion

judgment.

to

stay

(Doc. 90).

for decision.

ruling

on

defendants’

motion

for

summary

The motion has been fully briefed and is ripe

(Docs. 97, 102).

Plaintiff’s motion is denied for the

reasons herein.
I.

Facts and Procedural History
Plaintiff is a prisoner confined in the Lansing Correctional

Facility (LCF).

On July 12, 2011, plaintiff filed his section 1983

complaint against Governor Sam Brownback, the State of Kansas, and
several employees at the prison.

Plaintiff’s allegations concerned

lead

contamination

poisoning

and

asbestos

in

the

prison.

Additionally, plaintiff asserted state tort claims against defendants.
Judge Crow dismissed plaintiff’s claims against Brownback and the
State of Kansas for lack of personal participation.
On July 28, 2011, plaintiff sought a preliminary injunction
against defendants preventing them from disturbing any paint in the
cellhouses.

Plaintiff’s motion was denied.

A Martinez Report was

filed by defendants and the parties engaged in limited discovery.

On

March 6, 2012, plaintiff moved for reconsideration of Judge Crow’s
decision

denying

injunctive

plaintiff’s motion.

relief.

The

undersigned

denied

(Doc. 61).

Plaintiff filed an interlocutory

appeal with the Tenth Circuit.

The Tenth Circuit affirmed this

court’s decision and issued a strike against plaintiff for filing a
frivolous appeal.
Defendants moved for summary judgment on the basis of qualified
immunity and moved to stay discovery.

(Docs. 83, 84, 85).

In

response to defendants’ motion for summary judgment, plaintiff moved
to stay ruling on defendants’ motion pending discovery.

In his

motion, plaintiff incorporated his brief that was filed in response
to defendants’ motion to stay discovery.

(Doc. 89).

The magistrate

judge granted defendants’ motion to stay discovery pending this
court’s ruling on plaintiff’s Rule 56(d) motion.
II.

(Doc. 91).

Analysis
Under Rule 56(d), if the nonmovant shows “by affidavit or

declaration that, for specified reasons, it cannot present facts
essential

to

justify

its

opposition,

the

court

may:

(1)

defer

considering the motion or deny it; (2) allow time to obtain affidavits
or

declarations

or

to

take

discovery;

or

(3)

issue

any

other

appropriate order.” The decision whether to grant a Rule 56(d) motion
lies within the sound discretion of the court.

The nonmovant must

satisfy several requirements to obtain relief under Rule 56(d). By
affidavit, plaintiff must explain: (1) why facts precluding summary
judgment are unavailable; (2) what probable facts he can find through
further discovery; (3) what steps he has taken to obtain such facts;
and (4) how additional time will allow him to controvert facts. Price
-2-

v. West. Resources, Inc., 232 F.3d 779, 783 (10th Cir. 2000).
In addition, the Tenth Circuit has held that where a defense of
qualified

immunity

has

been

raised,

the

nonmoving

party

must

additionally demonstrate “how discovery will enable [him] to rebut a
defendant's showing of objective reasonableness or . . . demonstrate
a connection between the information he would seek in discovery and
the validity of the defendant's qualified immunity assertion.” Lewis
v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990).
Plaintiff’s brief states that discovery is necessary because he
lacks material which is directly relevant to the claims and defenses
set forth in defendants’ motion.

(Doc. 90 at 3).

Plaintiff’s

certification at the end of his motion states as follows:
I, Dale McCormick, hereby certify and declare that the
facts averred in my Response to Defendants’ Motion to Stay
Discovery in the above case are either known by me to be
fact, or that, after a thorough investigation and
accounting for all known facts, I have a good-faith basis
for believing them to be true; and that the discovery
material described in pp. 3-15 of that document, and/or
otherwise described in the above document, all relates
directly to one or more of the “defenses” set forth in doc.
84 in the above case; all under penalty of perjury.
(Doc. 90 at 4).
After turning to the cited pages, the court finds that plaintiff
has not complied with the requirements set forth in Price and Lewis.
Plaintiff’s arguments regarding missing discovery span several pages.
Those arguments, however, do not identify what discoverable facts will
create a dispute of fact in this case to preclude summary judgment.
For example, plaintiff contends that he has knowledge of grievances
which were not disclosed by defendants in discovery.
Plaintiff seeks disclosure of those grievances.
-3-

(Doc. 89 at 4).

Plaintiff does not

identify what facts will be present in those grievances which will
controvert

a

fact

at

issue

in

this

case.

Moreover,

assuming

plaintiff’s assertions are true, plaintiff already has knowledge of
the content of those grievances.

Therefore, plaintiff has obtained

the facts which he seeks and summary judgment should not be stayed to
undertake

discovery

possession.

of

facts

plaintiff

admittedly

has

in

his

Price, 232 F.3d at 783.

Plaintiff also seeks to depose defendants and their subordinates.
Plaintiff contends that he needs to “inquire of defendants, inter
alia, who fabricated such information [pertaining to the asbestos and
lead paint removal from LCF]. . . [and] plaintiff needs to inquire of
defendants why they fabricated their claims.”

(Doc. 89 at 13).

As

the Circuit has correctly noted, plaintiff has “failed to present
evidence establishing how any of the named defendants personally
violated his Eighth Amendment rights.”
at p. 4).

(Order of the Tenth Circuit

A fishing expedition in which plaintiff accuses defendants

of fabricating the removal of asbestos and lead paint from the prison
will not result in creating a genuine issue of material fact for
trial.

Moreover, plaintiff has not suggested how he would pay for

deposition discovery, a relevant point in light of the Tenth Circuit’s
Order of February 27, 2013, noting that plaintiff has failed to comply
with that court’s order regarding payment of the filing fee.
Plaintiff’s motion has failed to comply with Rule 56(d). Namely,
plaintiff has failed to establish which facts are discoverable through
discovery and how those facts will preclude defendants’ motion for
summary judgment.
official

defendants

The Tenth Circuit has noted that the “prison
established

that

-4-

there

was

little

to

no

possibility of lead and asbestos exposure in D Cellhouse since before
McCormick’s arrival there, and medical testing revealed the lead level
in his blood is well below safe levels.

A fortiori, there could be

no deliberate indifference to his health regarding lead and asbestos
exposure.”

(Order of the Tenth Circuit at n. 8).

Plaintiff does not

identify how the discoverable items will create an issue of fact as
to the subjective element of an unreasonable risk of serious damage
to future health.

Notably, the prison officials themselves are

subjected to the same supposed risks that plaintiff allegedly faces
every day in LCF.
III. Conclusion
Plaintiff’s motion is denied.

No motion for reconsideration,

however styled, will be entertained.
Plaintiff is ordered to file a response to defendant’s motion for
summary judgment on or before March 27, 2013.
for additional time will be considered.

(Doc. 83).

No request

The failure to fully comply

with Rule 56, this court’s Rule 56.1 and applicable case authority
will result in the court striking plaintiff’s response and considering
defendants’ motion as uncontested.
IT IS SO ORDERED.
Dated this

7th

day of March 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-5-