F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 26 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN BASTIAN,
Plaintiff-Appellant,
v. No. 99-3216
(D.C. No. 95-3535-MLB)
UNITED STATES BUREAU OF (D. Kan.)
PRISONS; WILLIE MACK; RUFUS
WILLIAMS, Correction Officers,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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 John Bastian appeals from an order of the district court granting
defendants’ motion for summary judgment in this case brought pursuant to the
Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics , 403 U.S. 388 (1971) . We affirm.
P laintiff alleged that the individual defendants, employees of the United
States Bureau of Prisons, denied him his Eighth Amendment right to be free from
cruel and unusual punishment by assaulting, robbing, and attempting to murder
him while he was handcuffed. He alleged that defendants further subjected him
to cruel and unusual punishment by denying him food and water for six and a
half hours and by refusing to permit him to see an “outside” doctor after the
assault.
D efendants moved for summary judgment on all of plaintiff’s claims. The
district court granted the motion in part and denied it in part holding that
defendants were not entitled to qualified immunity on plaintiff’s claims of
excessive force and denial of medical attention. Defendants filed another motion
for summary judgment with extensive documentation. Plaintiff then had a total
of twenty-three days to respond to defendants’ motion. See D. Kan. R. 7.1(b)
( providing that “[a] party shall have twenty days to respond to a motion to dismiss
or for summary judgment”); Fed. R. Civ. P. 6(e) (allowing three additional days
for mailing) . Plaintiff filed a response almost a month late. The district court
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struck the response as untimely pursuant to D. Kan. R. 7.4. 1
The court granted
defendants ’ motion for summary judgment on the basis that plaintiff had failed to
overcome defendants ’ defense of qualified immunity.
On appeal, plaintiff argues that the district court erred in its ruling.
Plaintiff also contends that the district court violated his due process rights
because the magistrate judge had set his case for trial, but the district court judge
granted summary judgment instead of conducting a trial.
“The district court is entitled to considerable deference in its interpretation
and application of its own rules of practice and procedure.” 2
Mitchell v.
Maynard , 80 F.3d 1433, 1447 (10th Cir. 1996); see also Hernandez v. George ,
793 F.2d 264, 266 (10th Cir. 1986) (reviewing district court’s interpretation and
application of local rules for abuse of discretion) .
Plaintiff’s only excuse for not filing a timely response was an allegation of
conspiracy between prison officials and defendants’ counsel. The only
documentation he submitted to support that allegation was an incident report
1
Rule 7.4 provides that if the respondent does not file a response to a
summary judgment motion within the time specified within Rule 7.1(b), the court
may consider the motion to be uncontested and grant the motion without further
notice. The failure to file a response is a waiver of the right to later file a
response, except upon a showing of excusable neglect.
2
Although plaintiff is proceeding pro se, he must comply with local court
rules. See Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992).
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which resulted in disciplinary action against him. That incident occurred after the
time by which plaintiff was to have filed his response. The court did not abuse its
discretion in striking plaintiff’s response.
In reviewing the entry of summary judgment on the merits, we examine the
case “de novo, drawing all reasonable inferences in favor of the nonmovants.”
Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994). The moving party must
show there is no genuine issue as to any material fact and it is entitled to
judgment as a matter of law. See id. The nonmovant must establish, at a
minimum, an inference of the presence of each element essential to the case. See
id. Federal Rule of Civil Procedure 56(e) authorizes the entry of summary
judgment “if appropriate,” when the nonmoving party fails to respond to a
properly supported summary judgment motion.
Due to plaintiff’s failure to file a timely response, the district court deemed
defendants’ motion uncontested. The facts contained in defendants’ motion
established that no assault occurred nor did any denial of medical attention occur.
Defendants’ documentation is extensive. Summary judgment was properly
granted. Even if we were to consider plaintiff’s response to defendants’ motion,
his unsupported allegations are insufficient to create any genuine issue of material
fact which would preclude the entry of summary judgment.
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Plaintiff argues that the district court denied him due process by disposing
of the case on summary judgment although the magistrate judge was preparing the
case for trial. Once defendants moved for summary judgment, the district court
properly ruled on that motion prior to conducting a trial. Once summary
judgment had been granted, no trial was necessary.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. Defendants’ motion for leave to file an appendix to their brief is
DENIED as duplicative of the material contained in the record on appeal.
Plaintiff’s motion to file a supplemental brief is GRANTED.
Entered for the Court
John C. Porfilio
Circuit Judge
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