Scott v. Hormel et al

Filing 59

ORDER granting 47 Motion for Summary Judgment; adopting Report and Recommendations re 56 Report and Recommendation.; denying as moot 58 Motion for Inquiry. Signed by Honorable Scott L. Palk on 5/5/2020. (md)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRIAN TYRONE SCOTT,
Plaintiff,
v.
BETSY HORMEL et al.,
Defendants.

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Case No. CIV-18-395-SLP

ORDER
Before the Court is Defendants’ Motion for Summary Judgment [Doc. No. 47]. It
is at issue. See Resp., Doc. No. 49; Reply, Doc. No. 50; Surresponse, Doc. No. 52. On
January 23, 2020, United States Magistrate Judge Gary M. Purcell issued a Third
Supplemental Report and Recommendation [Doc. No. 56] in which he recommended that
Defendants’ summary judgment motion be granted because “Defendants were justified in
relying on [Oklahoma Department of Corrections] policy . . . . [which] does not categorize
a kosher diet as one which may be prescribed for medical reasons. . . . when they refused
to provide Plaintiff with a kosher diet during the twelve-day period during which the
unauthorized order [for a kosher diet] was in effect,” resulting in defeat of Plaintiff’s Eighth
Amendment claim brought pursuant to 42 U.S.C. § 1983. R. & R. 13, Doc. No. 56.
Plaintiff then filed his Objection [Doc. No. 57] to the R. & R., which is now likewise before
the Court for its consideration. As part of his Objection, Plaintiff filed a Motion for an
Order Compelling Disclosure or Discovery [Doc. No. 57-5] which the Court treats as a

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separate motion made by Plaintiff despite the manner of submission being in violation of
Local Civil Rule 7.1(c).
The Court reviews de novo those portions of the R. & R. to which Plaintiff made
specific objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Having done so, the
Court finds that Judge Purcell’s R. & R. should be adopted in full. Plaintiff’s objections
fall in two categories. First, Plaintiff asserts doubts about the authenticity of the exhibit
submitted by Defendants as Document No. 47-1. But Defendants cured any authenticity
issues in their reply brief. See Callender Aff., Doc. No. 50-1. Second, Plaintiff asserts that
the court “must accept the Plaintiff’s allegations as true and construe them, and any
reasonable inferences to be drawn from the allegations, in the light most favorable to
[him].” Obj. 3, Doc. No. 57. Plaintiff would be correct if this case was still at the motionto-dismiss stage. But that is not the standard of review for the Court at the current stage of
proceedings: a motion for summary judgment. See R. & R. 2-3, Doc. No. 56 (laying out
the correct standard of review for a summary judgment motion); see also Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1321 (10th Cir. 2010) (discussing the differences between
motions to dismiss and motions for summary judgment). Accordingly, none of Plaintiff’s
objections provide the Court with a reason to act differently than as recommended in the
R. & R. [Doc. No. 56].
Next, the Court construes Plaintiff’s Motion for an Order Compelling Disclosure or
Discovery [Doc. No. 57-5] as a motion made pursuant to Federal Rule of Civil Procedure
56(d). But his request is not timely. See Nieves-Romero v. United States, 715 F.3d 375,
381 (1st Cir. 2013) (“A party cannot have two bites at the cherry; he ordinarily cannot
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oppose a summary judgment motion on the merits and, after his opposition is rejected, try
to save the day by belatedly invoking Rule 56(d).”). Likewise (as discussed supra), a
portion of Plaintiff’s Objection [Doc. No. 57] to the R. & R. is functionally a Rule 56(d)
request that is not timely either. See id. Finally, to the extent Plaintiff intended to include
a Rule 56(d) request in his response to Defendants’ summary judgment motion (see Resp.
5-6, Doc. No. 49 (citing portions of the state-law analogue to Rule 56, but not citing the
state-law analogue to Rule 56(d)—i.e., Okla. Stat. tit. 12, § 2056(F))), he only relevantly
indicated that he believed additional discovery time was needed regarding the authenticity
of the exhibit submitted as Document No. 47-1.1 As indicated supra, Defendants have
cured any authenticity issues regarding that exhibit.
Moreover, as to all of these submissions, Plaintiff has not met the requirements of
Rule 56(d) even if the later-filed ones were timely.
To obtain relief under Rule 56(d), the movant must submit an affidavit (1)
identifying the probable facts that are unavailable, (2) stating why these facts
cannot be presented without additional time, (3) identifying past steps to
obtain evidence of these facts, and (4) stating how additional time would
allow for rebuttal of the adversary’s argument for summary judgment.
Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017); see also Abdulhaseeb, 600
F.3d at 1310 (discussing the predecessor to Rule 56(d)—then-Rule 56(f)—and indicating
that pro se plaintiffs are bound by the same Rule 56(d) requirements as represented parties).
Here, Plaintiff has not indicated “how additional time would allow for rebuttal of

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Because the Court is not granting Defendants’ summary judgment motion on the basis of
their exhaustion, personal participation, or qualified immunity arguments, the Court need
not consider whether Plaintiff made viable Rule 56(d) requests in his summary judgment
response brief (or elsewhere) on these topics. See R. & R. 5-12 & n.5, Doc. No. 56.
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[Defendants’] argument for summary judgment” even if the documents and information
requested in Document Nos. 57-1 and 57-2 were produced by Defendants. Id.
Finally, the Court addresses Plaintiff’s request for leave to amend. See Obj. 4, Doc.
No. 57. Plaintiff has not complied with Local Civil Rules 7.1(c) or 15.1, which alone is
reason for the Court to deny leave to amend. See Warnick v. Cooley, 895 F.3d 746, 755
(10th Cir. 2018). Notwithstanding, the Court finds that granting leave to amend for
Plaintiff’s § 1983 claim—which is limited to one made under the Eighth Amendment—
would be futile. Plaintiff suggests no basis by which he could assert a viable Eighth
Amendment claim in the circumstances of this case. Accordingly, the Court finds that
leave to amend is properly denied. This determination might not follow from another
situation—e.g. if Plaintiff was not allowed any modified diet to combat his medical
condition or if a medical professional asserted that the modified diet allowed to Plaintiff
(here, the “diet for health”) was insufficient to meet his medical needs. But there is no
evidence beyond speculation that any of those circumstances are present here, and the
Court will not reach an advisory opinion on such non-presented conditions.
IT IS THEREFORE ORDERED that the R. & R. [Doc. No. 56] is ADOPTED and
Defendants’ Motion for Summary Judgment [Doc. No. 47] is GRANTED. A separate
judgment will be entered contemporaneous herewith.
IT IS FURTHER ORDERED that Plaintiff’s Motion for an Order Compelling
Disclosure or Discovery [Doc. No. 57-5] is DENIED for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Inquiry [Doc. No. 58] is
DENIED AS MOOT, as Plaintiff was previously provided a file-stamped copy of this
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Motion which was included with his copy of the Objection to the Report and
Recommendation [Doc. No. 57].
IT IS SO ORDERED this 5th day of May, 2020.

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