F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 10 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CAIN DIXON, JR.,
Plaintiff-Appellant,
v.
No. 97-3039
MICHAEL A. NELSON, Warden, (D.C. No. 96-3174-KHV)
El Dorado Correctional Facility; (D. Kan.)
EDWARD F. MEDLIN, Security
Captain, EDCF; ROBERT KECKLER,
Unit Team, EDCF; RANDY
JOHNSON, CSI-EDCF,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff Cain Dixon, Jr., appearing pro se, appeals the district court’s order
entering summary judgment in favor of defendants on his claims brought pursuant
to 42 U.S.C. § 1983. We affirm.
Plaintiff, a prison inmate, alleges that defendants, who are prison
personnel, interfered with his medically prescribed treatment plan and retaliated
against him for exercising his rights through the prison grievance procedure to
complain about their conduct. On appeal, he asserts that he should have been
afforded an opportunity to conduct discovery and then amend his complaint
before summary judgment was entered. He also challenges the district court’s
application of the doctrine of res judicata and its determination that his retaliation
claims failed to state a cause of action.
We first address plaintiff’s claim that summary judgment was improper
because he did not have an opportunity to conduct discovery. The rule
authorizing summary judgment does not require that discovery be completed
before summary judgment is entered. See Public Serv. Co. v. Continental Cas.
Co., 26 F.3d 1508, 1518 (10th Cir. 1994). A party seeking discovery to permit
him to oppose summary judgment must file an affidavit pursuant to Fed. R. Civ.
P. 56(f) showing with specificity how the discovery will enable him to rebut the
movant’s allegations of no genuine issue of material fact. See Jensen v.
Redevelopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993). Here, plaintiff’s
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generalized claim that discovery was necessary for him to present evidence to
support his claims falls short of the showing required. Therefore, the district
court did not err in entering summary judgment absent discovery.
We review the grant of summary judgment de novo, applying the same
standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated
Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is
appropriate when there is no genuine dispute over a material fact and the moving
party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935
F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most
favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski
Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
summary judgment order for substantially the same reasons stated in the district
court’s memorandum and order dated January 17, 1997, and entered on the docket
on January 23, 1997.
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The judgment of the United States District Court for the District of Kansas
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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Dixon v. Nelson
Combined Opinion