Charles Gordon Long v. County of Goodhue

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No. 96-1701
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Charles Gordon Long, *
*
Appellant, *
*
v. *
*
County of Goodhue, a political *
subdivision of the State of *
Minnesota; Forest M. *
Wipperling, individually and *
as Sheriff of Goodhue County; *
Dean Albers, individually and *
as Chief Deputy of the *
Goodhue County Sheriffs *
Department; Rick Olander, *
individually and as Lieutenant * Appeal from the United States
of the Goodhue County Sheriffs * District Court for the
Department; Don Skillstad, * District of Minnesota.
individually and as Sergeant *
of the Goodhue County Sheriffs * [UNPUBLISHED]
Department; Hermann Von *
Knobelsdorff, individually and *
as Sergeant of the Goodhue *
County Sheriffs Department; *
Doe, One; Doe, Two, *
individually and as jailer of *
the Goodhue County Sheriffs *
Department, jointly and *
severally, *
*
Appellees. *

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Submitted: January 6, 1997

Filed: January 10, 1997
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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
 Charles Gordon Long appeals from the district court's1 order
dismissing this 42 U.S.C. § 1983 action. We affirm.

Long, a pretrial detainee confined in the Goodhue County Jail
beginning December 24, 1994, brought this section 1983 action against the
County of Goodhue, and its sheriff and deputies, contesting policies and
practices at the county jail. Long claimed that defendants individually,
and in conspiracy, intentionally violated his constitutional rights by
subjecting him to certain jail conditions. He sought injunctive and
declaratory relief, damages, and a jury trial.

Defendants answered, and moved to dismiss or alternatively for
summary judgment. Defendants argued that Long did not allege any actual
injury or pain, that he failed to state an actionable Eighth Amendment or
Fourteenth Amendment claim, and that defendants were immune. Defendants
attached affidavits in support.

The magistrate judge granted Long's request for an extension of time
to respond to allow him to research case law. In his response to the
summary judgment motion, Long argued that because the time for completing
discovery had not passed, the only issue properly before the court was an
assertion of qualified immunity by defendants in their individual
capacities, but that there was a genuine issue of material fact as to each
alleged violation. Long further asserted that damages for these violations
could be presumed. Long also moved to strike the affidavits and exhibits
from defendants' summary judgment motion.

The magistrate judge recommended "dismissal" of the complaint because
Long had "not satisfied his burden of setting forth specific facts showing
that there [was] a genuine issue for trial."

1
The Honorable Michael James Davis, United States District
Judge for the District of Minnesota, adopting the report and
recommendation of the Honorable John M. Mason, United States
Magistrate Judge for the District of Minnesota.
(Appellee's Addendum at 5.) With respect to Long's motion to strike, the
magistrate judge concluded that defendants had not failed to comply with
Federal Rule of Civil Procedure 12 by filing their motion after their
answer, and that their affidavits and exhibits were relevant and
admissible. The district court, conducting de novo review, adopted the
magistrate judge's report over Long's objections, and granted defendants'
"motion to dismiss," denied Long's motion to strike, and dismissed the
complaint with prejudice.

Although the magistrate judge and the district court's order
contained "dismissal" language, it is apparent that the district court
considered evidence presented outside the pleadings, properly converted the
motion to dismiss to one for summary judgment, and resolved the case using
the summary judgment standard. Under the plain language of Rule 12(c), a
motion for judgment on the pleadings may be brought after the pleadings are
closed, and should be treated as a motion for summary judgment if matters
outside the pleadings are presented. See Fed. R. Civ. P. 12(c). This is
precisely what occurred here.

We know of no requirement that summary judgment must await the
deadline for completion of discovery. Had Long been unable to respond to
the summary judgment motion because he needed additional discovery, the
proper procedure would have been to seek a continuance under Rule 56(f).
When Long moved for an extension of time to respond to the summary judgment
motion, he made no mention of a need for additional discovery; he stated
that he needed more time to research case law and that he intended to move
for leave to amend his complaint to add causes of action arising after the
date of his complaint. In addition, Long had not indicated what facts
discovery would yield, only that it was possible discovery could turn up
a factual dispute, and that he should have been granted leave to amend to
incorporate those additional facts. Thus, we conclude the district court
committed no procedural error.

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 We need not address the merits of the summary judgment motion because
Long has not argued the merits in his appellate brief; arguments not
briefed are considered abandoned. See Fed. R. App. P. 28(a); Primary Care
Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1212 (8th
Cir. 1993) (appellate review of issue waived where appellants' brief failed
to provide legal support); Jasperson v. Purolator Courier Corp., 765 F.2d
736, 740-41 (8th Cir. 1985)(same).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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