                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           DEC 1 1998
                                 FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

    JOHN F. HOUCK, JR.,

                   Plaintiff-Appellant,

    v.                                                     No. 97-3294
                                                     (D.C. No. 95-4066-RDR)
    CITY OF PRAIRIE VILLAGE,                                (D. Kan.)
    KANSAS; CHARLES F. GROVER,

                   Defendants-Appellees.

    ----------------------------------------------

    JOHNSON COUNTY SHERIFF’S
    DEPARTMENT,

                   Movant.




                                  ORDER AND JUDGMENT      *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Plaintiff filed an action against the City of Prairie Village and Charles

Grover, the Chief of Police, alleging employment discrimination based on several

federal and state statutes.   1
                                  The district court granted summary judgment in favor

of both defendants on all claims. On appeal, plaintiff argues error in the grant of

summary judgment on his 42 U.S.C. § 1983 claims against the City and Grover, as

well as his claim based on the Americans with Disabilities Act, 42 U.S.C.

§§ 12101-12213. Plaintiff also argues on appeal that summary judgment was

improper because there was outstanding discovery by reason of the City’s failure

to comply with the magistrate judge’s order compelling discovery.

       We review the grant of summary judgment de novo.          See Jenkins v. Wood ,

81 F.3d 988, 990 (10th Cir. 1996). We apply the same standard as the district

court to determine whether there is a genuine issue as to any material fact and

whether defendant is entitled to judgment as a matter of law.      See id. We view the

evidence and the inferences that can be drawn therefrom in the light most


1
       Plaintiff’s action also named Barbara Vernon as a defendant. Plaintiff
conceded Vernon’s dismissal with prejudice in the district court. See Houck v.
City of Prairie Village , 912 F. Supp. 1428, 1430 (D. Kan. 1996).

                                              -2-
favorable to plaintiff.   See id. Guided by these standards, we have reviewed the

evidence contained in the extensive record before us. We conclude the district

court was correct in its judgment, and, therefore, we affirm.

       The district court has extensively detailed the facts of this case in three

published opinions, see Houck v. City of Prairie Village   , 978 F. Supp. 1397

(D. Kan. 1997); Houck v. City of Prairie Village   , 942 F. Supp. 493 (D. Kan.

1996); Houck v. City of Prairie Village   , 912 F. Supp. 1428 (D. Kan. 1996), and

we will not repeat them here. Plaintiff’s § 1983 claims are based on his allegation

that defendants were deliberately indifferent to his medical needs in not obtaining

immediate psychiatric treatment for him, but instead held him at the police station

for approximately two hours before he was transferred to the county facility. In

addition, plaintiff alleges violation of his rights as a result of defendants’ failure

to train officers to handle an incident involving arrest of a police officer with

psychiatric implications. Plaintiff also appeals the district court’s judgment on his

claim that defendants violated the ADA and discriminated against him on the basis

of his mental disability in their decisions regarding his arrest, treatment, and/or

employment.

       In addition to these arguments on appeal, plaintiff argues that the district

court should have withheld a ruling on the City’s motion for summary judgment

because the City had failed to comply with the magistrate judge’s order


                                           -3-
compelling discovery. However, as defendants point out, Fed. R. Civ. P. 56 has

a mechanism for just this situation. Subsection (f) of the rule provides that the

party opposing the summary judgment motion can file an affidavit stating the

reasons the party cannot present “facts essential to justify the party’s opposition.”

The rule provides that the court may then “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). Plaintiff failed to avail himself of this procedure as regards

the City’s motion.   2



       In an apparent effort to excuse compliance with Rule 56(f), plaintiff cites

this court’s decision in   Patty Precision v. Brown & Sharpe Mfg. Co.    , 742 F.2d

1260 (10th Cir. 1984), and the Ninth Circuit decision in     Garrett v. City & County

of San Francisco , 818 F.2d 1515 (9th Cir. 1987). Neither case is helpful to

plaintiff. In Patty Precision , we held that the district court’s failure to exercise its

discretion and rule on the nonmovant’s Rule 56(f) affidavit was error. 742 F.2d at

1265. Plaintiff in this case did not file a Rule 56(f) affidavit, nor was there a




2
       Plaintiff did file a Rule 56(f) affidavit in response to Grover’s summary
judgment motion. The district court, in its discretion, did not defer its summary
judgment ruling for additional discovery.     Houck , 912 F. Supp. at 1437-38.
Plaintiff does not take issue with this ruling.

                                           -4-
pending motion before the court; this is not a situation where the district court has

failed to exercise its discretion.

       Garrett is distinguishable on its facts. In that case, the nonmoving party

filed a motion to compel production of documents, which was still pending when

the district court granted summary judgment. The court held that “although not

formally denominated as a request under Rule 56(f), under Ninth Circuit precedent

Garrett’s discovery motion was sufficient to raise the issue of whether he should

be permitted additional discovery.”      Garrett , 818 F.2d at 1518. After recognizing

that Rule 56(f) requires the opposing party to be clear about the information

sought and how it would preclude summary judgment, the court found that the

pending discovery motion satisfied the requirements of Rule 56(f).      Id. at 1518-19.

       This case does not involve a situation where the district court failed to

exercise its discretion on a pending motion. The magistrate judge granted the

motion to compel before the district court ruled on the City’s summary judgment

motion. Further, neither plaintiff’s summary judgment motion nor his motion to

compel or related responsive pleadings satisfied the Rule 56(f) requirements of

specifying how the disputed discovery would enable him to present essential facts

in opposition to the City’s motion for summary judgment.       See Universal Money

Ctrs, Inc. v. American Tel. & Tel. Co.    , 22 F.3d 1527, 1536 (10th Cir. 1994)

(recognizing that, even assuming strict compliance with Rule 56(f) is not required,


                                             -5-
the plaintiff failed to demonstrate in its motion to compel how additional time

would enable it to rebut the defendant’s allegations of no genuine issues of fact, as

required by Rule 56(f)). There is no requirement in Rule 56 that discovery be

complete before summary judgment can be entered.        See Public Serv. Co. v.

Continental Cas. Co. , 26 F.3d 1508, 1518 (10th Cir. 1994). Plaintiff did not show

his inability to oppose the summary judgment motion without the discovery

sought, see id. , and the district court was within its discretion to decide the

summary judgment motion before the City had complied with the order to compel.

      Plaintiff argues that the district court erred in granting defendants’ summary

judgment on his § 1983 claims. We agree with the district court that plaintiff

failed to meet his burden of showing that Chief Grover was deliberately

indifferent, either to plaintiff’s medical needs or in Grover’s alleged failure to

train, as well as the district court’s disposition of plaintiff’s § 1983 claim against

the City. We also agree with the district court’s findings and analysis on

plaintiff’s claims that the City violated the ADA by terminating his employment

because of his mental disability and retaliating against him for his disability leave

request and his administrative complaint. We affirm the district court’s

disposition of all these issues for substantially the same reasons relied on by the




                                           -6-
district court.   See Houck , 942 F. Supp. at 497-98;   3
                                                            Houck , 978 F. Supp. at

1404-07, 1402-04.     4



       AFFIRMED.



                                                            Entered for the Court



                                                            Paul J. Kelly, Jr.
                                                            Circuit Judge




3
       Because we affirm the district court’s finding that plaintiff did not make the
necessary showings to sustain his § 1983 claim against Grover, we do not reach
the issue of Grover’s qualified immunity.
4
       The district court made it clear that it was not basing its rejection of
plaintiff’s ADA claims on estoppel related to plaintiff’s receipt of Social Security
benefits. Consequently, we do not reach the issue on appeal.

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