                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 08-1103
                               ________________

Rodney A. Ballard,                       *
                                         *
            Appellant,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
David Heineman, Governor,                *
Individually; Jon Bruning, Attorney      *
General, Individually; Trooper No.       *
371,                                     *
                                         *
            Appellees.                   *



                               ________________

                           Submitted: September 24, 2008
                               Filed: December 1, 2008
                              ________________

Before WOLLMAN, SMITH and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

       Rodney A. Ballard brought this 42 U.S.C. § 1983 action against Nebraska
Governor David Heineman, Nebraska Attorney General Jon Bruning and Nebraska
State Trooper No. 371, Dean Riedel. Ballard alleges he was the victim of Riedel’s
racially-motivated traffic stop and subsequent unconstitutional search and seizure,
which Heineman and Bruning promoted through policies that encouraged the targeting
of racial minorities. The district court1 granted summary judgment to Heineman,
Bruning and Riedel. Ballard appeals, arguing that he presented evidence to create
genuine issues of material fact and that he was not allowed sufficient time for
discovery before the district court granted summary judgment. For the reasons
discussed below, we affirm.

I.    BACKGROUND

       We follow the district court in considering Heineman’s, Bruning’s and Riedel’s
statements of fact in support of their motions for summary judgment “deemed
admitted” under Nebraska Local Civil Rule 56.1(b) because Ballard did not respond
to those statements of fact. See Neb. Civ. R. 56.1(b)(1); see also Nw. Bank & Trust
Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 724-25 (8th Cir. 2003) (finding no abuse of
discretion where the district court applied local rule and deemed plaintiff to have
admitted defendant’s statement of facts in defendant’s motion for summary judgment).



       On November 14, 2005, Ballard and two other persons, all of whom are
African-American, were stopped by Riedel as they traveled in a rented vehicle. Riedel
stopped the vehicle because he observed it speeding and following another car too
closely. During the traffic stop, Riedel observed that the vehicle was rented, but none
of the vehicle’s occupants admitted renting it. Riedel then asked for a copy of the
rental agreement. While the occupants searched for a copy of the rental agreement,
Riedel noticed that they avoided looking in a certain Adidas bag. Further, the
information the occupants provided to Riedel was inconsistent, and at least two of the
occupants had drug-related criminal histories. Riedel then obtained permission to


      1
         The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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search the vehicle, including the occupants’ luggage and coats. Riedel discovered
cocaine in the Adidas bag, and he placed the three occupants under arrest. Ballard
later admitted to a Nebraska state patrol inspector that the Adidas bag belonged to
him. Heineman and Bruning had no knowledge of or involvement in this traffic stop
or search, and they did not implement any policies allowing officers to take the race
of motorists into account when deciding whether to stop or search them.

       The Lincoln County Attorney’s Office filed criminal charges against Ballard.
On May 16, 2006, the District Court of Lincoln County granted Ballard’s motion to
suppress the evidence obtained from Riedel’s search, finding that the occupants did
not consent to the search and that the search was not supported by probable cause. In
its opinion, the Lincoln County court stated that racial profiling was implicated in
Riedel’s decision to conduct the search, though the court made no such finding
regarding the initial traffic stop. Thereafter, Ballard filed this § 1983 action, alleging
that Heineman and Bruning instituted policies encouraging troopers to target racial
minorities. According to Ballard, these policies led to Riedel conducting the racially-
motivated traffic stop and subsequent unconstitutional search and seizure. Heineman,
Bruning and Riedel each moved for summary judgment.

      The district court granted the motions, finding that Ballard presented no
evidence that raised a genuine issue of material fact in opposition to the motions for
summary judgment and that Heineman, Bruning and Riedel were entitled to judgment
as a matter of law.2 Ballard appeals, arguing that he raised genuine issues of material

      2
         In his brief, Ballard argues that Heineman, Bruning and Riedel are not entitled
to qualified immunity. The district court did not explicitly base its grant of summary
judgment on qualified immunity. Nevertheless, in granting summary judgment, the
district court implicitly undertook the first step of a qualified immunity analysis; that
is, the district court implicitly found that Ballard’s constitutional rights were not
violated when Riedel stopped and searched the vehicle because the uncontroverted
evidence gave rise to no genuine issue of material fact that a constitutional violation
occurred. See Cox v. Sugg, 484 F.3d 1062, 1065 (8th Cir. 2007) (explaining that the

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fact by submitting the Lincoln County court’s opinion and a Nebraska Commission
on Law Enforcement and Criminal Justice report, which found that African-American
drivers were more likely than white drivers to be searched and arrested after a traffic
stop. Ballard also contends that summary judgment was granted without allowing him
sufficient time to conduct discovery.

II.   DISCUSSION

       We first address Ballard’s argument that he presented evidence sufficient to
create genuine issues of material fact that preclude summary judgment. We review
a district court’s grant of summary judgment de novo. Russell v. Hennepin County,
420 F.3d 841, 847 (8th Cir. 2005). Summary judgment is appropriate if the evidence
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id. While we view evidence in the light most
favorable to the nonmoving party, the nonmoving party may not rest on its pleadings;
instead, it “must set forth specific facts showing there is a genuine issue of material
fact for trial.” Thomas v. Corwin, 483 F.3d 516, 526 (8th Cir. 2007). “Mere
allegations, unsupported by specific facts or evidence beyond the nonmoving party’s
own conclusions, are insufficient to withstand a motion for summary judgment.” Id.
at 527.

      Ballard contends that the traffic stop was racially motivated and therefore an
unreasonable seizure in violation of the Fourth Amendment. He further argues that
Riedel’s search of the vehicle violated the Fourth Amendment because it was racially


first step under qualified immunity analysis is determining whether a right was
violated). Because the district court found that Ballard failed to meet his burden of
proving that an issue of material fact exists regarding whether a constitutional right
was violated, it did not need to reach the second step of a qualified immunity
analysis—whether the right was clearly established. See Janis v. Biesheuvel, 428 F.3d
795, 799 (8th Cir. 2005).

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motivated and unsupported by probable cause or consent. A traffic stop is reasonable
“if it is supported by either probable cause or an articulable and reasonable suspicion
that a traffic violation has occurred.” United States v. Herrera-Gonzalez, 474 F.3d
1105, 1109 (8th Cir. 2007). However, “[e]ven if the officer was mistaken in
concluding that a traffic violation occurred, the stop does not violate the Fourth
Amendment if the mistake was an objectively reasonable one.” Id. (quotation
omitted). A search of a vehicle does not violate the Fourth Amendment if it is based
on consent or probable cause. See United States v. Brown, 345 F.3d 574, 580 (8th Cir.
2003).

       Riedel’s unopposed statement of facts explains that he stopped the vehicle
because it was speeding and following another car too closely. See VanHorn v.
Oelschlager, 457 F.3d 844, 845 n.2 (8th Cir. 2006) (explaining that the moving
party’s statement of facts is admitted under Nebraska Local Civil Rule 56.1(b) when
the nonmoving party fails to respond). Further, Riedel’s unopposed statement of facts
show that his search of the vehicle, luggage and coats occurred after the passengers
consented to the search. Moreover, Heineman’s and Bruning’s unopposed statements
of fact explain that they had no knowledge of and did not implement any policies or
practices allowing officers to take the race of motorists into account when deciding
whether to stop or search them. Ballard presented no affidavits, depositions, answers
to interrogatories or admissions specifically disputing Heineman’s, Bruning’s or
Riedel’s statements of fact. The only evidence he presented was the Lincoln County
court’s opinion granting Ballard’s motion to suppress and the Nebraska Commission
report discussing racial profiling in Nebraska. Neither document raises a genuine
issue of material fact as to the constitutionality of the traffic stop or subsequent search
and seizure.

        First, the Lincoln County court’s opinion makes no determination that the
traffic stop was unconstitutional. According to Riedel’s unopposed statement of facts,
Riedel observed the vehicle violating traffic laws. Although it discusses racial

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profiling, the Lincoln County court’s opinion does not actually find that the traffic
stop was the result of racial profiling or was otherwise unconstitutional. Thus,
Riedel’s stop of the vehicle did not violate the Fourth Amendment because it was
supported by probable cause that a traffic violation occurred. See Herrera-Gonzalez,
474 F.3d at 1109.

       Second, Ballard presents no specific evidence disputing Riedel’s statement that
the passengers consented to his search of the vehicle. Ballard argues that the Lincoln
County court’s opinion raises a question of fact as to whether the search was
supported by consent. In the district court, however, Ballard argued that Riedel was
barred from relitigating the consent issue by the doctrine of claim preclusion because
the Lincoln County court had already found that the vehicle’s passengers did not
consent to the search. The district court rejected that argument, noting that the
Lincoln County court’s opinion addressed a motion in a criminal proceeding that did
not involve the same parties to the current action. See, e.g., Baker v. Chisom, 501 F.3d
920, 925 (8th Cir. 2007). Ballard does not raise this argument in his appellate brief,
so it is waived. See, e.g., XO Mo., Inc. v. City of Maryland Heights, 362 F.3d
1023,1025 (8th Cir. 2004). In the absence of any preclusive effect, the findings and
legal conclusions in the Lincoln County court’s opinion simply are not evidence that
create genuine issues of material fact. Cf. Allen v. Entergy Corp., 181 F.3d 902, 906
(8th Cir. 1999) (explaining that conclusory affidavits devoid of specific factual
allegations rebutting the moving party’s evidence cannot defeat a summary judgment
motion). Thus, Riedel’s search of the vehicle did not violate the Fourth Amendment
because the unopposed statements of fact show that the passengers consented to the
search. See Brown, 345 F.3d at 580.

       Similarly, although the Nebraska Commission report contains statistical data
related to racial profiling generally in Nebraska, it does not contain specific facts
showing that Riedel stopped this vehicle for racially-motivated reasons or that the
passengers in this case did not consent to Riedel’s search. Finally, neither the Lincoln

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County court’s opinion nor the Nebraska Commission report present any specific facts
stating that Heineman or Bruning instituted policies encouraging the targeting of
minorities by law enforcement officials.

       By presenting no specific facts disputing Heineman’s, Bruning’s and Riedel’s
statements of fact, Ballard essentially failed to respond to the motions for summary
judgment. Riedel’s unopposed statement of facts shows that he committed no
constitutional violations because he stopped the vehicle after observing traffic
violations and he subsequently obtained consent to search the vehicle. Heineman’s
and Bruning’s unopposed statements of fact also explain that they did not institute
policies involving the targeting of minorities. Because Ballard has presented no
specific evidence controverting the unopposed statements of fact, he has not raised a
genuine issue of material fact from which a reasonable jury could conclude that
constitutional violations occurred. Therefore, the district court did not err in granting
summary judgment to Heineman, Bruning and Riedel.

       Next, we address Ballard’s argument that summary judgment was granted
before he had the opportunity to conduct discovery. We review the district court’s
determination of whether there has been adequate time for discovery for abuse of
discretion. Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008). The district court does
not abuse its discretion by denying further discovery “where the nonmoving party is
not deprived of a fair chance to respond to the summary judgment motion.” Id.
Discovery does not need to be complete before a district court grants summary
judgment. Nolan v. Thompson, 521 F.3d 983, 986 (8th Cir. 2008). Unless a party
files an affidavit under Federal Rule of Civil Procedure 56(f) showing what facts
further discovery may uncover, “a district court generally does not abuse its discretion
in granting summary judgment on the basis of the record before it.” Nolan, 521 F.3d
at 986.




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      On July 2, 2007, a magistrate judge granted Heineman, Bruning and Riedel’s
motion to stay discovery pending the resolution of their motion to dismiss. The order
granting the motion to stay discovery stated that “the motion should be granted,
without prejudice to [Ballard] filing, if necessary, a motion for leave to conduct
limited discovery on the issue of qualified immunity.” Ballard never filed such a
motion. On October 1, 2007, the magistrate judge stayed all discovery pending the
resolution of Heineman’s, Bruning’s and Riedel’s motions for summary judgment.
On the same day, Ballard filed an objection to the stay of discovery and a motion for
enlargement of time to answer the defendants’ summary judgment motions on the
issue of qualified immunity. The district court denied both the objection and the
motion for enlargement of time because Ballard failed to identify the specific facts he
sought to discover.

       Because Ballard never filed a proper Rule 56(f) motion, the district court did
not abuse its discretion by granting summary judgment on the record before it. See
Nolan, 521 F.3d at 986. Rule 56(f) motions must “show[] by affidavit that, for
specified reasons, [the party] cannot present facts essential to justify its opposition”
to the summary judgment motion. Fed. R. Civ. P. 56(f). Ballard’s objection to the
stay of discovery and motion for enlargement of time did not show by affidavit
“specific facts further discovery might uncover.” See Nolan, 521 F.3d at 986.
Moreover, even before the rejection of his objection and motion for enlargement of
time, Ballard had the opportunity to file a motion for leave to conduct limited
discovery on the issue of qualified immunity between July 2, 2007, and October 1,
2007, but he failed to do so. Therefore, because Ballard failed to file a proper Rule
56(f) motion, failed to set forth specific facts he sought to discover when he objected
to the stay of discovery, and failed to file a motion to conduct discovery on qualified
immunity when he had the opportunity to do so, the district court did not abuse its
discretion in granting summary judgment without allowing further discovery.




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III.   CONCLUSION

       Because Ballard created no genuine issues of material fact challenging the
unopposed statements of fact showing no constitutional violations occurred as a
matter of law and because the district court did not abuse its discretion in denying
further discovery, we affirm the district court’s grant of summary judgment to
Heineman, Bruning and Riedel.
                      ______________________________




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