                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-14-2005

Ray v. Brooks
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4658




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DPS-303                                                   NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 04-4658

                            FREDERICK T. RAY, III,
                                           Appellant


                                         v.

                  BROOKS, SERGEANT; CAPTAIN WILSON;
                         RUSTIN, DEPUTY; SERGE,
                 LT.; SANDEFUR, CPL.; DUANE, COUNSELOR,
                         CELL EXTRACTION UNIT 7
                             ________________

                     _________________________________
                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                               (Civ. No. 03-cv-1050)
                     District Judge: Honorable John P. Fullam
                  _______________________________________

 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2) or Possible Summary
                Action under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 14, 2005

            BEFORE: ROTH, BARRY and SMITH, CIRCUIT JUDGES


                           (Filed: September 14, 2005 )
                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
       Frederick Ray filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 in

the United States District Court for the Eastern District of Pennsylvania, alleging due

process violations.1 Ray alleges that Appellees, correctional officers and prison officials

at Chester County Prison, violated his constitutional rights when they forcibly removed

him from his cell and subsequently deprived him of a meaningful disciplinary hearing.

Ray seeks damages and declaratory relief.

       After approximately six months of discovery, Ray filed a motion to compel an

answer to interrogatories and production of documents. In an order entered April 13,

2004, the District Court denied this motion without prejudice, noting that Appellees’

response indicated that they had fulfilled Ray’s discovery requests. The record reflects

that Ray filed no further discovery motions. Appellees moved for summary judgment,

attaching prison records and Ray’s deposition in support of their argument that there were

no issues of material fact because the allegations in Ray’s complaint were unsupported by

any evidence. Ray filed a motion for a thirty day enlargement of time in which to

respond. The District Court granted Ray’s motion, extending the response deadline to

November 8, 2004. Ray did not file a response to the summary judgment motion. In an

order entered November 30, 2004, the District Court granted summary judgment in favor



       1
        As the parties are familiar with the facts, we recite them here only as necessary to
our discussion. We note that the District Court consolidated this case with two other
cases brought by Ray, Ray v. Cell Extraction Unit (7), Civ. No. 03-873, and Ray v.
Walker, Civ. No. 03-3093.


                                              2
of Appellees, explaining that there was no evidence in the record to show that Appellees

had acted improperly in transferring Ray to an isolation cell or that Ray’s due process

rights were violated in connection with his disciplinary hearing. On the same day that the

District Court issued its summary judgment order, Ray filed a motion pursuant to Federal

Rule of Civil Procedure 56(f) for a continuance in order to conduct further discovery.

The District Court denied this motion as moot on December 7, 2004. Ray appeals from

the District Court’s order granting summary judgment.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

appellate jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of

summary judgment de novo, viewing the underlying facts and all reasonable inferences

therefrom in the light most favorable to the party opposing the motion. Pennsylvania

Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (3d Cir. 1995). Summary judgment is

appropriately granted where there is no genuine issue as to any material fact and the

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

opposing a summary judgment motion cannot rest upon the “mere allegations or denials

of the adverse party’s pleading” but must respond with affidavits or depositions setting

forth “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

As the District Court noted, Appellees supported their summary judgment motion with

prison records and Ray’s deposition. Ray was allowed discovery, yet filed no response to

the summary judgment motion. On the record before the District Court, Appellees were



                                              3
entitled to judgment as a matter of law. We find no abuse of discretion in the District

Court’s denial of Ray’s discovery motion. See In re Fine Paper Antitrust Litigation, 685

F.2d 810, 817-18 (3d Cir. 1982).

       We recognize that Ray filed a motion for a continuance under Federal Rule of

Civil Procedure 56(f), asserting a need for further discovery. Ray’s motion was received

by the Clerk of the District Court on November 29, 2004, the same day that the District

Court issued its summary judgment order and twenty-one days after the thirty day

extension of time had expired.2 While there is no fixed time limit for filing a Rule 56(f)

motion, under these circumstances, Ray’s motion was not filed within a reasonable time,

and the District Court had no reason to defer acting on Appellees’ motion.3 See

Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1204 (1 st Cir. 1994);

see also Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9 th Cir. 1990).

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment to Appellees.




       2
       We do not review the order denying the Rule 56(f) motion, as it was not appealed.
See Union Pacific Railroad Company v. Greentree Transp. Trucking Co., 293 F.3d 120,
125-26 (3d Cir. 2002).
       3
       It does not appear from the record that the District Judge had Ray’s Rule 56(f)
motion before him when he was deciding the Defendants’ summary judgment motion.

                                             4
