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


9-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4650




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DPS-301                                                       NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                     NO. 04-4650

                               FREDERICK T. RAY, III,
                                              Appellant


                                            v.

           CAPTAIN WALKER; CAPTAIN TAYLOR; CAPTAIN WILSON;
           CAPTAIN DONGHERTY; CAPTAIN GRAHAM; MAJOR REED;
             DEPUTY WARDEN RUSTIN,CPL, MAJOR; LT. STEVENS;
                     CONSELOR DUANE; COI HESTER

                      _________________________________
                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                                (Civ. No. 03-cv-3093)
                      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 and First Amendment violations.1 Ray alleges that Appellees, correctional

officers and prison officials at Chester County Prison, violated his constitutional rights

when they transferred him to a punitive isolation cell and did not provide him with any

notice prior to holding a disciplinary hearing. Ray also alleges that the conditions of

confinement in the punitive isolation cell violated his rights and that, while he was in this

cell, Appellees deprived him of access to religion and to the courts. Ray seeks damages

and declaratory relief.

       Appellees filed a motion to dismiss the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6), which the District Court denied. After preliminary discovery had

been conducted, Ray filed a motion to compel an answer to interrogatories and production

of documents, which was denied without prejudice by the District Court. Ray filed no

subsequent 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,

which the District Court granted, thereby extending the response deadline to November 8,




       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.
Brooks, Civ. No. 03-1050.

                                              2
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 of Appellees,

noting that there was no evidence in the record supporting Ray’s allegations that

Appellees had denied him access to religion or the courts or had violated his

constitutional rights. 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



                                              3
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

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
