Kenneth McGoy v. Walter S. Ray, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 25, 2006
No. 05-12347
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00423-CV-BBM-1

KENNETH MCGOY,

Plaintiff-Appellant,

versus

WALTER S. RAY, JR.,
BOBBY K. WHITWORTH, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(January 25, 2006)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
 Georgia state prisoner Kenneth McGoy appeals the district court’s order

(1) denying his motion for a continuance of disposition of summary judgment, and

(2) granting summary judgment in favor of the defendants in his 42 U.S.C. § 1983

action. McGoy asserts (1) the district court violated the Federal Rules of Civil

Procedure when it denied his motion seeking discovery through an in camera

review of his parole file, and (2) retroactive application of Georgia’s policy

requiring inmates to serve 90 percent of their sentences (90 percent policy) violated

the Ex Post Facto and Due Process Clauses. We affirm the district court.

I. DISCUSSION

A. In camera review of parole file

First, McGoy contends the district court violated the Federal Rules of Civil

Procedure by denying him an in camera review of his parole file because the

defendants were in possession of the only evidence with which he could prove his

case. We review a district court’s refusal to grant a continuance of a summary

judgment motion in order to conduct discovery for abuse of discretion. Burks v.

Am. Cast Iron Pipe Co., 212 F.3d 1333, 1336 (11th Cir. 2000). Generally,

“summary judgment should not be granted until the party opposing the motion has

had an adequate opportunity to conduct discovery.” Reflectone, Inc. v. Farrand

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Optical Co., 862 F.2d 841, 843 (11th Cir. 1989). This is not, however, a blanket

prohibition on the granting of summary judgment before discovery. Id.

Rule 56(f) states:

Should it appear from the affidavits of a party opposing the motion
[for summary judgment] that the party cannot for reasons stated
present by affidavit facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order as is just.

Fed. R. Civ. P. 56(f). “The availability of a continuance is built into the rules to

guard against the premature entry of summary judgment. Subsection (f) allows a

party who has no specific material contradicting his adversary’s presentation to

survive a summary judgment motion if he presents valid reasons justifying his

failure of proof.” Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989)

(quotations and citation omitted). “[A] Rule 56(f) motion for discovery requires

the court to balance the movant’s demonstrated need for discovery against the

burden such discovery will place on the opposing party[;]” therefore, “[a] Rule

56(f) motion must be supported by an affidavit which sets forth with particularity

the facts the moving party expects to discover and how those facts would create a

genuine issue of material fact precluding summary judgment.” Harbert Int’l, Inc.

v. James, 157 F.3d 1271, 1280 (11th Cir. 1998). “The nonmovant may not simply

rely on vague assertions that additional discovery will produce needed, but

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unspecified, facts, but must show the court how the stay will operate to permit him

to rebut, through discovery, the movant’s contentions.” Barfield, 883 F.2d at 931.

(quotations and citation omitted).

The district court did not abuse its discretion in denying McGoy’s motion

for a continuance. First, McGoy, contrary to his argument, did not comply with the

requirements of Rule 56(f) in that he did not set forth with particularity the facts he

expected to discover and how those facts would create a genuine issue of material

fact. In his brief in support of his motion for a continuance, McGoy alleged the

Board’s 90 percent policy was adopted to qualify for federal funding under the

Violent Offenders Incarceration and Truth-In-Sentencing Act, 42 U.S.C. § 13701,

et. seq. (VOITIS), and noted the affidavit of Melissa Rogers, the Board’s Assistant

Director of Legal Services, did not deny the Board applied for and received grants

under VOITIS or that McGoy was included in their statistical average.1 However,

he did not state how an in camera review of his records would help prove these

allegations. McGoy cannot rely on such vague assertions that additional discovery

will produce needed but unspecified facts. Barfield, 883 F.2d at 931.

1
On appeal, McGoy asserts evidence will show that no violent offenders were
considered for parole in accordance with the parole guidelines and all inmates had their
sentences substantially extended beyond the guidelines recommendation. However, since
McGoy makes this argument for the first time on appeal, we need not consider it. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding issues not
raised in the district court and raised for the first time on appeal are not considered by this court).

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 Furthermore, the district court balanced McGoy’s need for discovery against

the burden such discovery would place on the Board. Here, that burden was quite

great since parole records in Georgia are confidential state secrets. O.C.G.A. § 42-

9-53(b) (2005). The district court did not abuse its discretion when it found the

facts before it did not rise to the level necessary to overcome the state’s interest in

maintaining the confidentiality of their parole records. Lastly, the district court did

not violate due process in denying his request for in camera review, as McGoy

asserts, because Georgia’s parole process does not create a liberty interest

protected by the Due Process Clause. Sultenfuss v. Snow, 35 F.3d 1494, 1503

(11th Cir. 1994) (en banc). Thus, the district court did not abuse its discretion in

denying McGoy’s motion for continuance.

B. Ex Post Facto Clause

Second, McGoy asserts the retroactive application of the 90 percent policy

violates the Ex Post Facto Clause because the policy changes the parole laws in

place at the time he committed his offense. He also contends it violates the Due

Process Clause, maintaining that Sultenfuss, which holds Georgia’s parole process

does not create a liberty interest protected by the Due Process Clause, is no longer

good law as it was overruled by Garner v. Jones, 120 S. Ct. 1362, 1367 (2000).

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 We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. S.E.C. v. Adler, 137 F.3d 1325, 1332 (11th

Cir. 1998). The moving party is entitled to summary judgment if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

The U.S. Constitution provides no State shall pass any ex post facto law.

U.S. Const. art. I, § 10. This clause prohibits states from enacting statutes which

make more burdensome the punishment for a crime after its commission. United

States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004), cert. denied, 126 S. Ct.

417 (2005). To prevail on an ex post facto claim, a party must demonstrate (1) the

law was retrospective, in that it applied to events occurring before its enactment,

and (2) he was disadvantaged by it. Id. Retroactive changes to the laws governing

the parole of prisoners may, in some instances, violate the Ex Post Facto Clause.

Garner, 120 S. Ct. at 1367 (2000).

Georgia’s parole process does not create a liberty interest protected by the

Due Process Clause. Sultenfuss, 35 F.3d at 1503. The Supreme Court’s decision

in Garner did not overrule Sultenfuss. Garner cited Sultenfuss favorably, and we

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have relied on the holding in Sultenfuss since Garner was decided. Garner, 120 S.

Ct. at 1369; Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001).

McGoy failed to establish a genuine issue of material fact as to his ex post

facto claim. It is undisputed that, in 1998, the Board established a new rule

requiring certain prisoners to serve at least 90 percent of their sentences. McGoy

did not demonstrate, however, that this policy has been applied to him. The record

shows the first decision affecting McGoy’s release date was made in 1994, before

the 90 percent policy existed. Nothing in the record indicates McGoy’s subsequent

parole reconsiderations, after implementation of the 90 percent policy, were

affected by that policy.2 McGoy also could not show he had a protected liberty

interest in parole. Therefore, the district court did not err in granting summary

judgment to defendants and dismissing McGoy’s complaint.

2
Although McGoy asserts the 90 percent policy is being retroactively applied in order to
qualify for federal funding under VOITIS in his brief opposing summary judgment and in his
brief on appeal, the district court did not rule on this claim, and thus, it was not raised below for
purposes of appellate review. Furthermore, McGoy could not amend his complaint by adding
his VOITIS claim in his brief opposing summary judgment, as he attempted to do. Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (2004).

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 II. CONCLUSION

The district court did not abuse its discretion in denying McGoy’s motion

for a continuance, and did not err in granting defendants’ motion for summary

judgment. Thus, we affirm the district court.

AFFIRMED.

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