                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 29 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


BARRY JAMES SNYDER,

          Plaintiff-Appellant,

v.

CACHE COUNTY, a political                              No. 00-4067
subdivision of the State of Utah;                   (District of Utah)
SIDNEY P. GROLL, Cache County                    (D.C. No. 98-CV-151-K)
Sheriff; DENNIS LARSON, Sergeant;
WAYNE BOYER, Sergeant; TROY
LIQUIN, Sergeant; TERRI
DUNCOMBE, Sergeant,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.



I. INTRODUCTION




      *
       This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Barry James Snyder brought this action in federal

district court against Cache County, Utah, and four officers of the Cache County

Sheriff’s Department (“Defendants”), alleging, inter alia, violations of 42 U.S.C.

§ 1983 and state law. The district court granted Defendants’ motion for summary

judgment on qualified immunity grounds and dismissed Snyder’s claims.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the

district court.

II. BACKGROUND

       On January 1, 1997, at approximately 10:30 a.m., Deputies Liquin and

Larson of the Cache County Sheriff’s Department served Snyder with an ex parte

protective order filed by his wife. The protective order prohibited Snyder from

“directly or indirectly contacting, harassing, telephoning, or otherwise

communicating with [his wife].” Snyder was ordered to stay away from his

wife’s “residence and its premises” and to not come within five hundred feet of

his wife and children. Law enforcement agencies with jurisdiction over the

residence were given the authority to compel Snyder’s compliance with the order.

The serving deputies advised Snyder of the provisions outlined in the protective

order. Snyder was permitted to collect his personal belongings, and the deputies

escorted him out of the residence.




                                         -2-
      Approximately two hours later, Snyder contacted the Sheriff’s Department

to inquire about retrieving additional clothing from his home. Deputy Liquin

made contact with Snyder and informed him that he would not escort Snyder back

to the residence. After answering another call, Deputy Liquin observed Snyder’s

vehicle parked in the driveway of Snyder’s neighbor, which was adjacent to the

residence. Deputy Liquin informed Snyder that he was not permitted to be within

five hundred feet of the residence and instructed him to leave the area. Deputy

Liquin called dispatch to inform them of the situation, and he was advised to stop

and detain Snyder. Snyder ultimately was arrested for violating the protective

order. Snyder was arraigned on January 3, 1997, at approximately 11:00 a.m., and

was released from jail on his own recognizance.

      Snyder subsequently filed suit against Defendants, alleging, inter alia,

violations of 42 U.S.C. § 1983 and state law. Both parties filed motions for

summary judgment. The district court granted Defendants’ motion on qualified

immunity grounds and dismissed Snyder’s claims.

III. DISCUSSION

      Prior to the district court’s summary judgment ruling, Snyder

simultaneously filed a motion for partial summary judgment and a motion for

continuance and notice of hearing in which he sought (1) a consolidated hearing

on the competing summary judgment motions and (2) a continuance of the hearing



                                        -3-
until a consolidated hearing could be scheduled and/or until discovery was

complete. In his motion, Snyder alleged the following: (1) only Defendants had

detailed knowledge of the facts underlying Snyder’s claims, (2) a former

employee of the sheriff’s department would testify in response to a subpoena that

“there was an acknowledged conspiracy and ‘policy’ within the Department to

embarrass, humiliate, inconvenience, and harass plaintiff,” and (3) Defendants’

counsel would not allow any depositions of his clients prior to the deposition of

Snyder. Although the district court did not rule on Snyder’s motion for

continuance and notice of hearing, it held a consolidated hearing on both parties’

motions for summary judgment. Snyder includes in his appeal a challenge to the

district court’s implicit denial of his motion for additional discovery. This court

reviews the denial for an abuse of discretion. See Ben Ezra, Weinstein, & Co. v.

Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000).

      A district court may defer ruling on a summary judgment motion pending

further discovery “when the affidavits of the party opposing the motion indicate

that the party cannot for reasons stated present by affidavit facts essential to

justify the party’s opposition.” Lewis v. City of Fort Collins, 903 F.2d 752, 758

(10th Cir. 1990) (quotation omitted); see also Fed. R. Civ. P. 56(f). When

responding to a summary judgment motion based on qualified immunity, the

opposing party must file an affidavit that demonstrates “how discovery will



                                         -4-
enable them to rebut a defendant’s showing of objective reasonableness or . . .

demonstrate a connection between the information he would seek in discovery and

the validity of the defendant’s qualified immunity assertion.” Lewis, 903 F.2d at

758 (quotation omitted). Because Snyder neither filed a Rule 56(f) affidavit nor

provided the district court with a description of how discovery would enable him

to rebut Defendants’ showing that the decision to arrest Snyder was objectively

reasonable, this court concludes the district court did not abuse its discretion.

      On the cross-motions for summary judgment, the district court determined

that Defendants were entitled to qualified immunity. The court thus granted

Defendants’ motion for summary judgment and denied Snyder’s motion for partial

summary judgment. Snyder challenges these rulings. This court reviews a

district court’s granting of qualified immunity de novo. See Nelson v. McMullen,

207 F.3d 1202, 1205 (10th Cir. 2000).

      Because Defendants raised a qualified immunity defense, Snyder bears the

burden of showing that Defendants’ actions violated a federal constitutional or

statutory right and that the right was clearly established at the time of Snyder’s

arrest. See id. at 1206. In the context of a warrentless arrest, Defendants are

“entitled to immunity if a reasonable officer could have believed that probable

cause existed to arrest the plaintiff.” Romero v. Fay, 45 F.3d 1472, 1476 (10th

Cir. 1995) (quotation omitted). Snyder claims he was falsely arrested for



                                          -5-
allegedly violating the protective order, which prohibited Snyder from going

within five hundred feet of his wife, even though she was not at the residence at

the time of his arrest.

      The district court found it was “reasonable that Deputy Liquin interpreted

Mr. Snyder’s presence at the neighbors to be in violation of the protective order.

Mr. Snyder was clearly not staying away from the residence by being present next

door. . . . [E]ven if the arresting officers misinterpreted the provisions of the Ex

Parte Protective Order, the misinterpretation was reasonable and does not rise to

the degree of outrageousness contemplated by the Supreme Court.” Having

reviewed the qualified immunity issue under the appropriate standard of review

along with all of the relevant evidence, this court holds that there is no reversible

error. Thus, this court affirms the district court for substantially the reasons

stated in its order dated November 23, 1999. 1


      1
        Snyder also argues his constitutional rights were violated because (1) he
did not receive a probable cause hearing and (2) the officer’s probable cause
statement was presented and sworn to a notary public rather than a judge or
magistrate, both in contravention of the Supreme Court’s holdings in County of
Riverside v. McLaughlin, 500 U.S. 44 (1991), and Gerstein v. Pugh, 420 U.S. 103
(1975). Neither McLaughlin nor Gerstein contemplate the circumstances of this
case in which Snyder was arraigned and released from police custody within
forty-eight hours of his arrest. See McLaughlin, 500 U.S. at 55-56; Gerstein, 420
U.S. at 114. Moreover, Snyder offers no evidence to support his claim that the
probable cause determination in his case was delayed unreasonably. See
McLaughlin, 500 U.S. at 56 (providing that probable cause determination made
within forty-eight hours may violate the promptness requirement if arrested
individual can prove that the determination was delayed unreasonably).

                                          -6-
      Snyder also claims the district court erred in denying his motion to certify

to state court the issue of the meaning of the term “premises” as used in the ex

parte protective order. In his Rule 59 motion before the district court, Snyder

requested “an order vacating the judgment and referring the matter to the Utah

Court [of] Appeals for a determination of whether the arresting offcers [sic] had

probable cause for the arrest.” An unsettled question of Utah law, however, must

be certified to the Utah Supreme Court. See Utah R. App. P. 41(a). Nonetheless,

the district court denied Snyder’s motion, ruling that the case did not involve an

unsettled question of state law. Because the district court did not rule on the

issue of the meaning of “premises” and because it was unnecessary for it to do so,

this court need not consider certification.

IV. CONCLUSION

      For the foregoing reasons, the district court is AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




                                          -7-
