                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     OCT 29 1997
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT                    PATRICK FISHER
                                                                         Clerk


ROBERT BRUCE BRIGDEN, Deceased, by
and through his Wife and Next of Kin; JANE
CHURCHILL BRIGDEN, Widow and
Personal Representative of the decedent
Robert Bruce Brigden; DAVID BRUCE
BRIGDEN; PAMELA JANE BRIGDEN
OGDEN; JANICE ELAINE BRIGDEN
JEFFUS; ALLEN CHURCHILL BRIGDEN;
KENDRA LYNN BRIGDEN HOLTZMAN;
REBECCA SUSAN BRIGDEN WELCH,

            Plaintiffs - Appellants,                   No. 96-6339
      v.                                              W.D. Oklahoma
STATE OF OKLAHOMA, ex rel. The                   (D.C. No. CIV-95-1626-L)
Oklahoma Department of Corrections;
LARRY FIELDS, individually and in the
capacity as Director of the Oklahoma
Department of Corrections; JACK COWLEY,
individually and in his capacity as Warden of
the Oklahoma Reformatory at Granite;
LT. TERRY NEW, individually and in his
capacity as a correctional officer at the
Granite Reformatory; LT. WAYNE MOREY,
individually and in his capacity as a
correctional officer at the Granite
Reformatory; RON ROSKOM, individually
and in his capacity as Chaplain at the Granite
Reformatory,

            Defendants - Appellees.
                             ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and TACHA, Circuit Judges.




       Robert Bruce Brigden, a convicted sex offender, was stabbed to death in his

cell at the Oklahoma State Reformatory (OSR) by another inmate on June 12,

1994. Subsequently his widow and personal representative 1 brought this civil

rights action against the Oklahoma Department of Corrections and its Director,

the Warden of OSR, two correctional officers, and the OSR chaplain. Her suit

alleges that the defendants, in violation of Mr. Brigden’s Eighth Amendment right

to be free from cruel and unusual punishment, were deliberately indifferent to the

danger of physical harm to Mr. Brigden at the hands of other inmates and failed to

protect him. The district court granted the defendants’ motions for summary

judgment essentially because the plaintiff had not demonstrated a genuine jury



       *
        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.
       1
        In addition to Mr. Brigden’s widow, his children are joined as plaintiffs in this
lawsuit. Since Mrs. Brigden is suing in her capacity as personal representative and
therefore has standing, for convenience we refer to her individually throughout our
opinion as the plaintiff.

                                             -2-
question as to whether any defendant had the required culpable mental state with

respect to Mr. Brigden’s safety.

       On appeal the plaintiff contends that the record establishes genuine issues

of fact sufficient to avoid summary judgment, and that, in any event, the district

court abused its discretion by cutting off discovery. 2 We affirm as to all

defendants except Chaplain Roskom. As to him, we reverse and remand for

further proceedings.



                                     BACKGROUND

       In 1992, Mr. Brigden was convicted in Woods County, Oklahoma, of eight

counts of lewd molestation and one count of rape by instrumentation and was

sentenced to 60 years’ imprisonment. On August 25, 1992, he arrived at the

Oklahoma State Reformatory to begin serving his sentence. The next morning he

was attacked in the prison yard by other inmates apparently because of the nature

of his crime, which involved children, and its attendant publicity. He then

requested and was placed in protective custody, an area of the prison fenced off

from the general population. Prison staff supported Mr. Brigden’s placement in

protective custody due to the nature of his offense, rating his victim potential as


       2
        It is unclear whether appellants appeal as to Director Fields, but they make no
argument in their brief about the district court’s ruling as to him. In any event, it is clear
that the district court properly entered summary judgment in his favor.

                                              -3-
high. Appellants’ App. at 42.     According to the record submitted to us, Mr.

Brigden’s incarceration then proceeded without complaint or incident for the next

21 months.

      In 1994 the Department of Corrections sought to make various operating

and housing efficiencies to accommodate the ever-growing inmate population in

the system. One such change involved closing the protective custody unit at OSR

and centralizing protective custody housing at the Oklahoma State Penitentiary

(OSP). Planning in this regard was detailed, as shown by the following excerpts

from an April 1, 1994, memorandum from James L. Saffle, Regional Director of

the Southeastern Region, to Larry Fields, Director of the Department of

Corrections:

      2.       We believe we can increase medium security beds by
               moving the protective custody beds from the Oklahoma
               State Reformatory to the Penitentiary. According to the
               daily system count, we would have approximately 27
               beds for growth, if our protective custody count
               remained the same, and they were all housed at the
               Penitentiary.

               We decided to give the inmates at OSR the option to
               come off protection, prior to any movement of the
               protective custody unit to the Penitentiary. There is
               belief that many of the inmates will choose to remain at
               OSR.

               Our plan is to move the protection unit off of F-4 at the
               Penitentiary and place all protective custody inmates on
               D and E Units, which will provide 160 beds, and better
               protection, due to the isolation from other units, and

                                           -4-
             individual exercise areas. F-4 would then be used for
             general housing.

             The movement from the F Cellhouse would assist us in
             better utilizing the current vacant beds that are on the
             protection unit. We are consistently running 25 beds
             vacant, which we desperately need to fill.

      ....

      If you approve this strategy, we recommend that our General Counsel
      review the movement recommendations, in reference to OSR
      protective custody unit being placed at the Penitentiary, to determine
      if we need to conduct a classification review prior to movement. We
      also recommend that we prepare correspondence notification to our
      legislative leaders, prior to any movement, in order for them to be
      aware of the location change and reason for the change, concerning
      our protective custody units.

      Lastly, a time schedule of all movement would be prepared by the
      strategy committee, in order to coordinate all movement, and prevent
      any communication breakdowns. Of course, this depends on your
      approval of the recommendations.

      I believe these recommendations will enhance correcting our current
      reception and transfer problem, as well as addressing our bed
      vacancy problem, within the protective units at OSR and the
      Penitentiary.

Appellants’ App. at 43-44.

      The plaintiff acknowledges in her brief on appeal that, as contemplated by

the plan outlined above, Mr. Brigden was interviewed by staff and given an

option. He could remain in protective custody by transferring to the penitentiary

at Lexington, or he could stay at OSR in the general population. Appellants’ Br.

at 4-5, 12-13, 17. Some inmates chose to transfer to OSP. Appellants’ App. at

                                         -5-
92. Brigden not only chose, but, according to letters from family members,

importuned corrections officials to stay at OSR. Appellants’ Br. at 12-13, 17;

Appellants’ App. at 46, 47. 3

       In conjunction with the dismantling of the protective custody fence at OSR,

Warden Cowley announced the planned removal during a scheduled weekly video

broadcast to all inmates. The warden told the inmates that the fences were down

and that inmates previously housed in protective custody who chose to stay at

OSR should be treated with respect. The protective custody unit fence at OSR

was removed on May 15, 1994, and Mr. Brigden was housed in the general

population. Two weeks later, on May 31, 1992, he complained to staff that he

was being intimidated by other inmates. The write-up of the complaint uses the

term “bulldogged,” without further elaboration. Appellants’ App. at 49. Inmates

housed in the area testified at the trial of Brigden’s killer that the killer and others

were going to Brigden’s cell almost daily after the fence came down to harass and

rob him. Appellants’ App. at 81-82. However, none of them testified that they


       3
        In their joint motion for summary judgment the defendants recite a number of
“facts” unsupported by certified documents, affidavits based upon personal knowledge as
required by Fed. R. Civ. P. 56(e), or any reference to a Martinez report requested by the
court. Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir. 1978). One example is an
assertion that thirty-three inmates chose to transfer to protective custody at OSP.
Appellants’ App. at 23. Appellees then rely on those facts in their brief on appeal without
citation to the record in violation of Fed. R. App. P. 28 and 10th Cir. R. 28.1. See, e.g.,
Appellees’ Answer Br. at 3. The plaintiff’s brief is equally deficient. We, of course,
cannot rely upon unsupported factual assertions, and we strongly deplore their use.

                                            -6-
reported the incidents to the defendants, except to the prison chaplain, Ron

Roskom.

      When Mr. Brigden complained to the staff that he was being “bulldogged,”

the defendant, Lt. Wayne Morey, offered to move him to A-1-Pod for protection,

but Brigden declined in writing, stating: “I Robert Brigden DOC# 207536, does

[sic] acknowledge that protection was offered to me and I declined the offer to be

moved to A-1-Pod to serve that purpose.” Id. at 49. The A-1-Pod was the

disciplinary housing unit.

      There is evidence that Mr. Brigden either at that time, or generally

contemporaneous to the events in question, expressed complaints or concerns to

Lt. Morey about being robbed by the inmates who were harassing him, and that

Lt. Morey had instructed him to report any such incident. Id. at 88.

      In the early evening on June 12, 1994, another inmate, Stephen Edward

Wood, entered Mr. Brigden’s cell (at OSR cell doors are unlocked during the day)

and attempted to rob him of his wristwatch. When Brigden refused to hand over

his watch, Wood stabbed him to death, inflicting multiple wounds with a “shank.”

Id. at 58, 88-89.

      The guard on duty in the “A” unit was Terry Duane New, one of the

defendants in this case. His shift was 3:00 p.m. to 11:00 p.m. Officer New

testified at Wood’s trial that at about 6:15 p.m. he noticed Mr. Brigden’s cell door


                                         -7-
standing open. New did not consider that to be normal, so he walked down and

looked in on Brigden, who seemed fine. New then sat by Brigden’s door for a

little while, but noticed nothing unusual, and Brigden did not say anything.

However, New testified he had a strange feeling, so he went up on the roof to

observe the activity in the yard. After a while he heard a scream, followed by

three more screams. As he started off the roof, he saw a knife thrown out. Id. at

73-75. Mr. Brigden was dead. The knife was connected to Wood, who was

ultimately tried and convicted of the murder.

      The plaintiff’s evidence that the defendants knew Mr. Brigden was in

jeopardy and wilfully ignored that fact, includes testimony at Wood’s trial from

inmates Robert Boulet, Michael Hendricks, John Crosson, James Murphy, and

Teddy Graham. Mr. Boulet testified as follows:

      Q      Oh, you weren’t there when the fences came down?
      A      No.
      Q      I’m sorry, you did say that.
             Were you aware, Mr. Boulet, that Reverend Brigden’s life was
      in danger, or did you have any idea?
      A      I -- you know, over a period of time people talk, you know,
      and you hear different things. So I heard that, you know, he
      shouldn’t stay on the yard because something might happen to him.
      Q      That was the talk?
      A      Right.
      Q      I mean, just talk amongst people at the mess hall and so forth?
      A      Right.
      Q      Okay. Were you aware of a hit list down there?
      A      They had it on the -- going around the yard that there was a
      certain number of people on there, that if they stayed there at Granite


                                        -8-
      when they moved protective over to McAlester, that they was going
      to get killed, or whatever, because of their crimes.
      Q      That was just kind of the word around?
      A      Yeah.

Appellants’ App. at 77-78.

      Mr. Hendricks testified as follows:

      Q       Okay. Mr. Hendricks, before you heard these conversations
      that you testified about, before that, were you aware in any way or
      did you have a sense that Reverend Brigden’s life was in danger?
      A       Yes.
      Q       What gave you that opinion?
      A       He’s told me quite a bit about it.
      Q       Okay.
      A       I’ve tried to talk to him and tried to get him to where he could
      get himself protection, but it didn’t do no good. So I went to the
      chapel there at the penitentiary and told the Chaplin, Ron Roscoe
      [sic], that I felt that this man’s life was really in danger --
      Q       And this was --
      A       -- and could he help in any way, maybe talk to the guy and
      maybe get him, you know, to change his mind.
              Ron Roscoe [sic] says, “I don’t want to be involved in
              it.”
      Q       And that’s the chaplin [sic]?
      A       Yeah.
      Q       And we are talking about a period of time before this incident?
      A       Before the killing, yes.

Id. at 79. He also testified that he knew Brigden “was getting harassed by the

people that killed him,” id. at 80, but was unable to state whether any of this

information was brought to the “attention of the penitentiary people.” Id.

      Mr. Murphy testified that inmate David Chatham told him that Chatham and

a couple of others would go to Brigden’s cell frequently “and take something


                                         -9-
from him just to be -- having something to do just for the fun of it and laugh

about it.” Id. at 81. He then testified as follows:

             Mr. Murphy, did you believe back last year that Reverend
      Brigden’s life was in danger from all sorts of inmates; did you
      believe that?
      Q      Yeah.
      Q      Have you ever heard that there was some kind of a hit list out
      there in the yard?
      A      Everyone has heard of that.
      Q      Yeah. Did you ever hear who’s on it?
      A      Yeah, several people.
      Q      Okay. Do you think the prison officials know about that?
      A      Yeah. They just said it was a joke, just like everyone else
      thought it was.
      Q      Okay. Well, you probably knew Tim Clark then, didn’t you?
      A      Yeah.
             MR. DEAVER: Your Honor, we would object to the relevance of --
             THE COURT: Sustained.
      Q      (By Mr. Jones) Did you ever watch the warden’s TV show?
      A      Yes.
      Q      Do you remember when he announced that the PC fence was
      coming down and you all be good to him?
      A      Yeah.
      Q      Did you see that one?
      A      Yeah.
      Q      Did you know Terry New, the corrections officer, very well?
      A      I knew him, I mean, just like I know a lot of them there.
      Q      Do you think Mr. New was aware that Mr. Brigden was in
      danger?
             MR. DEAVER: Object, Your Honor, calls for speculation.
             THE COURT: Sustained.

Appellants’ App. at 83-84.

      Mr. Crosson testified as follows:




                                          -10-
      Q       Did you do anything -- you said you were perfectly aware that
      Reverend Brigden’s life was in danger. Did you do anything maybe
      to tell the prison officials about that?
      A       The prison officials already knew it.
      Q       They did?
      A       Yes, sir. They said we had a choice, we could stay there, or
      we could go to OSP. OSP is not a choice. You’re made to go to
      OSP.
      Q       Bad place, isn’t it?
      A       Yes, sir.
      Q       23-hour a day lockdown?
      A       Yes, sir.
      Q       Okay. They knew his life was in danger, and they gave him a
      choice, and he chose to stay at Granite; is that about it?
      A       Yes, sir.
      Q       Okay. Have you ever heard of a hit list around the yard?
      A       Yes, sir.
      Q       Do you think it existed?
      A       Yes, sir, it does. It still does.
      Q       And there would be some names on it about who the various
      people in the population were they want to hit?
      A       Right.
      Q       Do you think the prison officials know about that?
      A       Yes, sir.
      Q       Do you think they ever tried to get a copy of the list?
      A       I can’t answer that, sir.
      Q       Did you ever watch the warden’s TV show?
      A       Yes, sir.
      Q       Did it make you uncomfortable being in A Unit when the show
      came on that just informed everybody the fences are down, that you
      be good to those guys; did that make you uncomfortable? Kind of
      like advertising it.
      A       For me it didn’t because I was tired of living anyway. That’s
      the reason I stayed, that was my choice.
      Q       Oh, okay. But for some it probably worried them?
      A       I’m sure.

Id. at 85-87.



                                       -11-
      Teddy Graham described how inmate Wood entered Brigden’s cell on June

12, 1994, demanding Brigden’s watch, and was told by Brigden that “Lieutenant

Moory [sic] had given him a direct order to tell anyone who tried to rob him, that

he would come to Lieutenant Moory [sic] and give him their name.” Appellants’

App. at 88.

      The plaintiff also introduced the trial testimony of Dr. Philip J. Murphy, to

the effect that Stephen Wood was a schizophrenic who committed murders

previously in part because he had a rage against child molesters. Id. at 93.

Finally, the plaintiff established that after the protective custody fence was

removed there was no restriction on inmates in the general population going to the

unit where Brigden was housed, and that inmates could go from one cell to the

other. Id. at 72.



                                   DISCUSSION

                                          I.

      We review de novo the district court’s grant of summary judgment for

failing to establish a cognizable Eighth Amendment claim. Applying the same

standards used by the district court, we must affirm if the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the


                                         -12-
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In short, drawing all reasonable inferences in favor of the plaintiff, we must

affirm if it would be improper to submit the case to a jury on this record.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Kaul v. Stephan,

83 F.3d 1208, 1212 (10th Cir. 1996).

       “‘[P]rison officials have a duty . . . to protect prisoners from violence at the

hands of other prisoners.’” Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.

1988)); see Wilson v. Seiter, 501 U.S. 294, 303 (1991). However, every injury

inflicted by one inmate on another does not constitute a violation of the Eighth

Amendment prohibition of cruel and unusual punishment. Farmer, 511 U.S. at

834.

       Farmer, consistent with earlier cases, held that “[a] prison official’s

‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates

the Eighth Amendment.” Farmer, 511 U.S. at 828. The Court stated:

       [A] prison official cannot be found liable under the Eighth
       Amendment for denying an inmate humane conditions of
       confinement unless the official knows of and disregards an excessive
       risk to inmate health or safety; the official must both be aware of
       facts from which the inference could be drawn that a substantial risk
       of serious harm exists, and he must also draw the inference.

Id. at 837.



                                          -13-
       This subjective standard requires a culpable state of mind on the part of the

official. See Wilson, 501 U.S. at 301-03. It is not satisfied by negligence (which,

by definition, is an unreasonable act or omission), or even gross negligence, or

recklessness as defined by civil law. 4 Farmer, 511 U.S. at 835-37 & n.4; Barrie v.

Grand County, 119 F.3d 862, 869 (10th Cir. 1997) (citing Berry v. City of

Muskogee, 900 F.2d 1489, 1495-96 (10th Cir. 1990)). It requires a level of

recklessness tantamount to criminal recklessness, inclusive of a subjective mens

rea. Farmer, 511 U.S. at 836, 839-40. Furthermore, the deliberate indifference

test also requires that in order for a prison official to be liable for a § 1983

violation the official must have been personally and directly responsible for the

occurrence of the alleged Eighth Amendment violation. Grimsley v. MacKay, 93

F.3d 676, 679 (10th Cir. 1996); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th

Cir. 1996).

       Applying these exacting standards, we agree with the district court’s

careful analysis, with the exception of Chaplain Roskom. Thus, with that one

exception, we agree with the district court that the testimony offered by inmates

Boulet, Hendricks, Crosson, Murphy and Graham does not implicate any


       4
        “The civil law generally calls a person reckless who acts or (if the person has a
duty to act) fails to act in the face of an unjustifiably high risk of harm that is either
known or so obvious that it should be known.” Farmer, 511 U.S. at 836 (citing W. Page
Keeton, et al., Prosser & Keeton on the Law of Torts, § 34, at 213-14 (5th ed. 1984) and
Restatement (Second) of Torts § 500 (1965)).

                                           -14-
defendant. The testimony is general, conclusory, and speculative, and it would be

impermissible to allow a jury to speculate on the defendants’ level of actual

knowledge and their state of mind based on such testimony.

       Warden Cowley certainly knew that OSR no longer had a protective

custody section and that Mr. Brigden had declined protective custody at OSP. 5

That the warden chose the medium of a prison-wide television announcement to

address the subject of fence removal at the previously segregated housing unit at

OSR hardly shows a culpable state of mind toward Brigden. Quite the opposite.

The fence removal would obviously be common knowledge, especially to inmates

who would have free access to the area. The warden’s message recognized the

obvious and was a cautionary warning to all inmates about their behavior. No

facts at all establish that Warden Cowley knew Mr. Brigden was going to be

attacked and ignored the situation. The only thing the plaintiff can point to is that

Brigden was attacked in 1992 and had been in protective custody because

convicted child molesters may be in danger in a general prison population.



       5
        We reject at the outset the contention that centralizing protective custody at OSP
was punitive or “no choice at all” or in any other way violated the constitutional rights of
Mr. Brigden or any other inmate. Inmates have no constitutional right to placement in a
particular prison facility. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt
v. Helms, 459 U.S. 460, 468 (1983) (“[T]he transfer of an inmate to less amenable and
more restrictive quarters for nonpunitive reasons is well within the terms of confinement
ordinarily contemplated by a prison sentence.”); Meachum v. Fano, 427 U.S. 215, 224-25
(1976).

                                            -15-
      On this point, Brigden’s own actions in twice refusing the offer of

protective custody become relevant as to the state of mind of all the defendants

and as to their culpability. First, while it may be argued that prison officials have

superior knowledge about dangers posed by the prison environment, and about

particularly dangerous inmates, no one could have had a more intimate interest in

assessing threats to Brigden’s safety than Brigden himself. One cannot be in a

prison for almost two years, even though segregated, without absorbing

knowledge of the culture of the place, beginning with the certain knowledge of

his 1992 attack by other inmates and why he was placed in protective custody at

the outset. If Brigden did not feel sufficiently threatened to choose protective

custody at OSP, it is hard to see why prison officials were not entitled to take this

into account in their own risk assessment.

      Then, after experiencing problems and complaining about them, Brigden

once again was offered and refused protective custody—this time in writing. 6

Once again, it is hard to see why Brigden’s own view of his safety would not at

least be one factor to consider in evaluating whether or not prison officials were



      6
        As indicated previously, we reject the argument that the offer of protective
custody in the disciplinary section at OSR—the only such housing available at OSR after
Brigden’s refusal of transfer to OSP—was somehow punitive or “no choice.” In addition
to the authorities cited in supra note 5, see Sandin v. Conner, 515 U.S. 472, 485-87
(1995). The confinement offered was neither for the purposes of punishment, nor, under
the circumstances, atypical.

                                         -16-
subjectively criminally reckless in perceiving an unreasonable risk to Brigden, in

actually drawing the inference, and in failing to act. See Knight v. Gill, 999 F.2d

1020, 1022 (6th Cir. 1993) (inmate’s refusal to be placed in temporary protective

custody is a factor to be considered in determining prison official’s state of

mind).

       Looked at another way, a prison official is not deliberately indifferent if he

knows of a risk to an inmate and takes reasonable steps to abate the risk. Farmer,

511 U.S. at 844-45. Prison officials took reasonable steps to protect Brigden on

two occasions, and he turned them down both times.

       For all these reasons, there is no jury case against Warden Cowley, nor

against Lt. Morey or Officer New. At most, Officer New was negligent in going

up on the roof. But we decline even that characterization, as well as plaintiff’s

argument, that Brigden’s cell door should have been locked. Brigden was in the

general population, had refused a unit where the doors are locked, and, according

to a letter in the prison files, enjoyed going to the library for the first time.

Brigden was not entitled to a personal guard as he moved about the prison (where

he would be as exposed to assault as when in his cell), or to otherwise generally

dictate the terms of his incarceration. Absent knowledge of any specific threat,

Officer New’s general uneasiness hardly translates into a culpable indifference

toward Brigden’s safety.


                                           -17-
      Our only disagreement with the district court’s analysis concerns Chaplain

Ron Roskom. The record (which we must accept) shows he was told specifically

that Brigden was in serious danger and chose to ignore the warning, saying he did

not want to get involved. The district court interpreted the warning to relate only

to persuading Brigden to transfer to OSP. We respectfully disagree, at least at

this point. Drawing inferences favorable to the nonmoving party, we conclude

that on the record as it now stands, there is a genuine issue of fact whether or not

Chaplain Roskom was deliberately indifferent to a serious risk to Brigden.

      There is much that the record does not tell us, however. For instance, we

are unable to ascertain Chaplain Roskom’s status as a state actor, or his duty or

ability to control or affect circumstances relating to the safety of an inmate. It

could be that as the record is further developed on remand, summary judgment

may again be appropriate for consideration. But, as the record now stands, we

must reverse the summary judgment entered in favor of Roskom.



                                          II.

      The district court cut off discovery in this case simultaneously with its

grant of summary judgment in defendants’ favor. The plaintiff argues

persuasively that in doing so the district court abused its discretion. Plaintiff

contends that the district court erroneously stated that plaintiff filed no Fed. R.


                                         -18-
Civ. P. 56(f) affidavit seeking further discovery in response to the defendants’

motion for summary judgment. Appellants’ App. at 125. In fact, plaintiff did file

a 56(f) affidavit, albeit in response to defendants’ motion for protective order.

Appellants’ App. at 54-55. Plaintiff also contends that government counsel first

resisted, then were slow in responding to, timely discovery requests, then falsely

represented to the court that plaintiff’s motion to compel was moot because

everything requested had been provided. Plaintiff promptly filed a pleading

objecting to the mootness contention, but the district court granted judgment

without ever mentioning or ruling on the objection.

      Frankly, we are sympathetic to the plaintiff’s general theme that discovery

proceedings here were less than ideal. But the standard governing our review of

the court’s denial of further discovery is abuse of discretion. Burks v. Oklahoma

Publ’g Co., 81 F.3d 975, 981 (10th Cir.), cert. denied, 117 S. Ct. 302 (1996);

Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995), cert. denied,

116 S. Ct. 1678 (1996). And, our search of this entire record leaves us convinced

that there is insufficient showing of the existence of discoverable evidence to

establish error on the part of the district court. Clearly, the plaintiff hopes and




                                          -19-
believes that further discovery will turn something up. It takes some showing

greater than that, however, to prevail at this point. 7



                                    CONCLUSION

       For the reasons stated, the judgment of the district court is AFFIRMED,

except as to the defendant RON ROSKOM. That judgment is REVERSED and

the case is REMANDED for further proceedings.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




       7
        For instance, in the 56(f) affidavit attached to the Plaintiffs’ Response to Motion
for Protective Order, counsel referred to letters and other information, but is general and
conclusory as to the information alleged therein, and nothing is attached to the affidavit.
Also, in denying that they had sufficient access to materials admittedly shown them by the
government, counsel acknowledge at least some access, yet identify nothing on appeal, or
in a motion to the district court to reconsider its ruling, which would materially change
the posture of the case.

                                           -20-
