                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 19 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MOHAMMED SALEH,

                Plaintiff-Appellant,

    v.                                                   No. 03-3364
                                                  (D.C. No. 02-CV-3241-CM)
    M. E. RAY, Warden, United States                       (D. Kan.)
    Penitentiary, Leavenworth; WALTER
    WOODS, Captain; UNITED STATES
    OF AMERICA; R. DARROW,
    Lieutenant, United States Penitentiary,
    Leavenworth,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, MURPHY , Circuit Judge, and         CAUTHRON , **
Chief District Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Mohammed Saleh, a federal prisoner appearing pro se, appeals the

district court’s dismissal of his civil rights complaint. Plaintiff filed suit against

the United States and the individual defendants, all prison officials working at the

United States Penitentiary in Leavenworth, Kansas, alleging they violated his

First and Eighth Amendment constitutional rights by placing him in

administrative detention because of his Muslim faith and using excessive force in

placing him in ambulatory restraints.

      The district court dismissed plaintiff’s Eighth Amendment claims, finding

no evidence in the record to suggest that plaintiff suffered any injury at all as a

result of the restraints and that the placement of plaintiff in ambulatory restraints

in order to quell a prison disturbance did not amount to cruel and unusual

punishment. The district court dismissed plaintiff’s First Amendment claims,

finding that plaintiff had failed to articulate any interference with the practice of

his Muslim beliefs or any evidence of religious retaliation. It also found nothing

in the record tending to show that defendants’ actions burdened the free exercise

of plaintiff’s religion in violation of Religious Freedom Restoration Act (RFRA).

The district court also dismissed the claims against the United States and the

defendants in their official capacities.


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      On appeal, plaintiff contends the district court erred in granting summary

judgment without first allowing him to conduct discovery and in concluding his

constitutional rights were not violated. We review the district court’s grant of

summary judgment de novo, applying the same standard as did the district court.

Amro v. Boeing Co. , 232 F.3d 790, 796 (10th Cir. 2000). We view the evidence

and draw any inferences in the light most favorable to the party opposing

summary judgment.     See Anderson v. Liberty Lobby, Inc.   , 477 U.S. 242, 255

(1986). The nonmoving party must, however, identify sufficient evidence that

would require submission of the case to the jury, and factual disputes about

immaterial matters are irrelevant to a summary judgment determination.      See id .

at 248-49.

      We affirm for substantially the same reasons set forth by the district court

in its comprehensive and well-reasoned decision. The evidence, viewed in the

light most favorable to the plaintiff, does not support a reasonable inference that

he was subjected to unnecessary and wanton infliction of pain,    see Whitley v.

Albers , 475 U.S. 312, 320, 322 (1986), nor does it support any violation of his

First Amendment or RFRA rights. Further, the district court did not abuse its

discretion by deciding the summary judgment motion without first allowing

plaintiff to complete discovery. Because defendants raised a qualified immunity

defense, the district court properly stayed discovery while that defense was


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resolved. See Workman v. Jordan , 958 F.2d 332, 336 (10th Cir. 1992). Plaintiff

failed to file an affidavit explaining his need for additional discovery, as required

by Fed. R. Civ. P. 56(f), and his motion seeking to compel discovery never

informed the district court with any specificity how additional information would

help him oppose defendants’ motion for summary judgment.        See Ben Ezra,

Weinstein & Co. v. Am. Online Inc.   , 206 F.3d 980, 987 (10th Cir. 2000) (holding

that, under Rule 56(f), nonmoving party seeking additional discovery must

demonstrate precisely how additional discovery will lead to a genuine issue of

material fact); DiCesare v. Stuart , 12 F.3d 973, 979 (10th Cir. 1993) (holding that

Rule 56(f) applies to pro se litigants).

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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