                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2434
                        ___________________________

                       Gerald Lee Johnson; Shelly Johnson

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

                                 Mike Moody, et al.

                      lllllllllllllllllllllDefendants - Appellees
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                             Submitted: June 14, 2018
                            Filed: September 10, 2018
                                  ____________

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       At the time in question, Gerald Johnson was a special education teacher at
Roosevelt High School in Des Moines, Iowa. On December 4, 2015, Student C.P.
alleged that Johnson had called her into his classroom the day before to discuss her
grades and attendance issues and, during the meeting, locked the door and touched
her inappropriately. On January 19, 2016, Johnson was charged in Iowa State Court
with Sexual Exploitation by a School Employee and Assault with Intent to Commit
Sexual Abuse. See Iowa Code §§ 709.15(3)(a)(1), (5)(a), 709.11(3). After the state
court suppressed evidence derived from school surveillance videos that had not been
preserved, the prosecution dismissed the charges.

      Johnson and his wife then filed this lawsuit in Iowa District Court against two
members of the Des Moines Police Department who investigated C.P.’s allegation,
Officer Mike Moody and Detective Brian Mathis; Des Moines Police Chief Dana
Wingert; and the City of Des Moines, Iowa.1 As relevant here, Plaintiffs assert 42
U.S.C. § 1983 claims against the officers individually and the City for violation of
Johnson’s Fourteenth Amendment substantive due process rights and Iowa state law
claims of malicious prosecution, negligent hiring and supervision, respondeat
superior, and loss of spousal consortium.

      Defendants removed the action and promptly moved for summary judgment,
relying primarily on asserted issues of law, qualified immunity and collateral
estoppel. Plaintiffs filed a brief resisting summary judgment and requesting deferral
of a ruling until the scheduled close of discovery some months later. Plaintiffs
attached a Declaration of counsel under Rule 56(d) of the Federal Rules of Civil
Procedure (formerly rule 56(f)) describing the discovery they “anticipated
conducting.” After hearing oral argument, the district court2 entered a lengthy order
granting summary judgment in favor of the individual defendants and the City and
denying the request for additional discovery. Johnson v. Moody, No. 4:16-cv-449,
Order (S.D. Iowa June 15, 2017). Plaintiffs appeal, arguing only that the district
court abused its discretion by denying their request for time to conduct discovery


      1
       Plaintiffs also asserted claims against Des Moines Public Schools defendants,
which were dismissed and are not at issue, and a John Doe defendant who requires
no additional discussion given our disposition of the appeal.
      2
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

                                         -2-
before granting summary judgment for the Defendants. Reviewing the denial of their
Rule 56(d) request for abuse of discretion, we affirm. Toben v. Bridgestone Retail
Operations, LLC, 751 F.3d 888, 894 (8th Cir. 2014) (standard of review).

                                   I. Background.

       We will limit this section to the facts (taken in the light most favorable to
Plaintiffs as summary judgment non-moving parties) and the portions of the extensive
procedural history of the dispute that are relevant to the only issue on appeal, whether
the district court abused its discretion in denying Plaintiffs’ Rule 56(d) request for
additional discovery.

       A. State Court Proceedings. After C.P. made her allegation, Officer Moody
and Detective Mathis interviewed C.P. and her mother, attempted to interview
Johnson, viewed extensive surveillance videos of the school hallways on the day of
the incident, and reviewed text messages from C.P. to a friend and to her mother.
Their request that the school save all videos from that day was mishandled, and C.P.
deleted her text messages before they were fully preserved. Only notes of the videos
and screen-shot images of the text messages taken by Detective Mathis were
preserved and available as evidence for the criminal proceedings; Johnson never
viewed any portion of the video and reviewed only portions of the text messages.

       Johnson moved to dismiss the charges, alleging that “the State intentionally
and/or recklessly failed to preserve exculpatory video evidence that it knew was
critical to Johnson’s defense.” After an evidentiary hearing at which Moody, Mathis,
and others testified and were cross examined by Johnson’s attorney, the state court
denied the motion to dismiss because it did not find “any intentional destruction of
exculpatory evidence by law enforcement,” “any bad faith on the part of the police,”
nor “any actions by the police to intentionally and/or recklessly fail to preserve the
exculpatory video evidence.”

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        Johnson then moved to suppress the video and text message evidence, arguing
that allowing the prosecution to admit only partial evidence would violate his
constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by denying
him the ability to refute the evidence against him. The state court suppressed the
video evidence, concluding that allowing the State to present evidence the defendant
was unable to review “would be grossly unfair” and would deprive the defendant of
his right to meaningful cross-examination. It declined to suppress text messages that
had been preserved. The court “reaffirm[ed] that the evidence was not lost due to any
bad act on the part of law enforcement.” The prosecution then dismissed the charges
because “the State [did] not believe it [could] prove the Defendant’s guilt beyond a
reasonable doubt and [did] not believe it [was] appropriate to proceed with a trial at
[that] time.”

       B. District Court Proceedings. Plaintiffs’ Second Amended Complaint
included detailed fact allegations asserting that Defendants “failed to conduct a
proper investigation,” negligently destroyed the school surveillance videos, and failed
to preserve text messages before C.P. deleted them. The Complaint then asserted
multiple claims against the City and Police Department Defendants. At issue here
are:

       - § 1983 claims that investigating officers Moody and Mathis provided the
prosecutor “with misinformation, concealed exculpatory evidence, [] otherwise
engaged in bad faith conduct that was actively instrumental in causing the initiation
and continuation of the prosecution,” and recklessly disregarded Johnson’s
constitutional rights “by failing to properly and sufficiently investigate [C.P.’s] false
allegations” (Count I);

       - § 1983 claims that Police Chief Wingert and the City are liable for Johnson’s
injuries because their policies and practices, including failure to train and supervise
the investigators, caused the constitutional violations (Count II);

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       - Iowa state law claims that Officer Moody and Detective Mathis subjected
Johnson to malicious prosecution without probable cause (Count III);3 Chief Wingert
and the City negligently hired, retained, and supervised Moody and Mathis (Count
IV); the City is liable under the doctrine of respondeat superior for conduct and
omissions of Moody and Mathis that caused Plaintiffs injuries (Count VII); and loss
of spousal consortium resulting from the tortious actions alleged in Counts I, II, III,
IV, and VII (Count IX).

       Defendants removed the action to federal court and the district court denied
Plaintiffs’ motion to remand in August 2016. In late December, the court issued a
Scheduling Order setting a discovery deadline of October 2, 2017. In January 2017,
the City and Police Department Defendants filed a motion for summary judgment,
arguing that the state court’s findings of no bad faith or intentional destruction of
exculpatory evidence were entitled to collateral estoppel preclusive effect. Therefore,
they argued, Moody and Mathis are entitled to qualified immunity on the § 1983
claims of failure to investigate and concealing exculpatory evidence, and Plaintiffs
cannot prove their § 1983 supervisory and state law claims as a matter of law.
Defendants submitted extensive pleadings and other documents from the state court
criminal proceedings with the motion.

       Plaintiffs timely responded by filing their Brief Resisting Summary Judgment
and Requesting Deferral of Ruling until the Close of Discovery. With this Brief,
Plaintiffs filed counsel’s Rule 56(d) Declaration, averring that if they were given the
opportunity, they anticipated conducting the following discovery:




      3
       Plaintiffs advised the district court that Count III asserted only a state law
malicious prosecution claim. There is no clearly established federal constitutional
claim of malicious prosecution. See Techn. Ordnance, Inc. v. United States, 244 F.3d
641, 650-51 (8th Cir. 2001).

                                         -5-
      a. Taking depositions of all of the named parties and questioning these
      individuals regarding, inter alia, their knowledge of exculpatory
      information in the criminal prosecution against Mr. Johnson; when the
      parties learned exculpatory information; how decisions were made to
      investigate the case; conformance with the governing policy; and their
      training and experience.

      b. Obtaining the Des Moines Police Departments’ [sic] policies
      governing sexual assault investigations, preservation of evidence,
      evaluation of exculpatory evidence, and communication processes.

      c. Potentially retaining an expert(s) to opine on the standard of care for
      law enforcement and industry-accepted practices for preservation of
      evidence, investigation of sexual assault allegations, and communication
      of exculpatory evidence.

      d. Obtaining communications sent or received by the named parties
      pertaining to the criminal prosecution against Mr. Johnson, including e-
      mail correspondence.

Plaintiffs’ Brief argued that (i) Count 1 is not barred by collateral estoppel because
the state court’s bad faith finding was limited to the failure to preserve the
surveillance videos, whereas Plaintiffs allege Defendants “provided misinformation,
concealed exculpatory evidence, failed to investigate exculpatory evidence, and
generally conducted a flawed investigation”; (ii) Defendants are not entitled to
summary judgment based on the state court filings; and (iii) “Defendants’ remaining
arguments for summary judgment are premature.” Plaintiffs’ Statement of Additional
Undisputed Facts addressed the collateral estoppel issue and Plaintiffs’ intent to
conduct discovery but presented no additional facts supporting their claims of bad
faith investigation.

       In granting summary judgment, the district court ruled -- without deciding the
collateral estoppel issue -- that Moody and Mathis are entitled to qualified immunity


                                         -6-
on Count I because Plaintiffs failed to demonstrate that the investigators violated
Johnson’s constitutional rights by a conscience-shocking failure to properly and
sufficiently investigate C.P.’s false allegations. Plaintiffs’ supervisory liability claims
in Count II and respondeat superior claims in Count VII fail because Plaintiffs failed
to establish the investigators’ individual liability. The Count III malicious
prosecution claims fail because “Plaintiffs present no dispute as to whether Officer
Moody or Detective Mathis acted with malice or lacked probable cause.” The Count
IV claims fail for lack of proof of an underlying tort by the employee investigators.
Count IX fails because Defendants are not liable to Johnson on any other claim. The
district court then denied Plaintiffs’ Rule 56(d) request, explaining:

       Plaintiffs fail to demonstrate the facts they seek in further discovery are
       essential or that the facts they seek exist. During Mr. Johnson’s criminal
       trial, [he] deposed Detective Mathis as part of the criminal case. Officer
       Moody and Detective Mathis were examined and cross-examined during
       hearings on Mr. Johnson’s Motion to Dismiss. The City Defendants’
       investigation has been closed since at least February 2016. Much of
       Plaintiffs’ desired material represents “speculative hope” of finding
       evidence. “Mere speculation that there is some relevant evidence not yet
       discovered will never suffice.” Plaintiffs fail to carry their burden under
       Rule 56(d) . . . . (citations omitted).

                                     II. Discussion.

       “Although discovery need not be complete before a case is dismissed . . . .
Rule 56[d] allows a party to request a delay in granting summary judgment if the
party can make a good faith showing that postponement of the ruling would enable
it to discover additional evidence which might rebut the movant’s showing of the
absence of a genuine issue of material fact.” Robinson v. Terex Corp., 439 F.3d 465,
467 (8th Cir. 2006). To warrant time for additional discovery under Rule 56(d),
Plaintiffs must show: “(1) that they have set forth in affidavit form the specific facts
that they hope to elicit from further discovery, (2) that the facts sought exist, and (3)

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that these sought-after facts are ‘essential’ to resist the summary judgment motion.”
Toben, 751 F.3d at 895 (quotation omitted). As the district court noted, “Rule 56(d)
does not condone a fishing expedition where a plaintiff merely hopes to uncover
some possible evidence of unlawful conduct.” Id. (cleaned up). Our review of the
district court’s wide discretion in deciding a 56(d) motion is “very deferential.” Id.

       Here, the district court correctly identified the governing Rule 56(d) principles,
so there was no error of law amounting to an abuse of discretion. In arguing the court
abused its discretion, Plaintiffs emphasize that Defendants moved for summary
judgment soon after removing the case and months before the scheduled close of
discovery, and that Plaintiffs were entitled to a “full and fair opportunity” to discover
circumstantial evidence within Defendants’ possession relevant to their bad faith,
knowledge, and intent after the threshold collateral estoppel issue was resolved.

       Plaintiffs’ argument ignores a critical procedural fact -- Defendants’ summary
judgment motion included a claim that the individual Police Department Defendants
are entitled to qualified immunity from the § 1983 damage claims in Counts I and II.
The Supreme Court has repeatedly emphasized that qualified immunity is an
immunity from suit that should be resolved “at the earliest possible stage in litigation”
to ensure that insubstantial damage claims against government officials are resolved
“prior to discovery.” Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (citations and
quotations omitted). When plaintiff has asserted a § 1983 claim requiring proof of
wrongful motive, and defendant asserts a pre-discovery claim of qualified immunity,
the district court “may insist that the plaintiff put forward specific, nonconclusory
factual allegations that establish improper motive,” “should give priority to discovery
concerning issues that bear upon the qualified immunity defense,” and has “broad
discretion to tailor discovery narrowly and to dictate the sequence of discovery.”
Crawford-El v. Britton, 523 U.S. 574, 598-600 (1998) (quotations omitted). “[I]f the
defendant-official has made a properly supported [summary judgment] motion, the



                                          -8-
plaintiff . . . must identify affirmative evidence from which a jury could find that the
plaintiff has carried his or her burden of proving the pertinent motive.” Id. at 600.

       To defeat a motion for summary judgment based on qualified immunity, the
plaintiff must put forth facts showing that the officer’s conduct violated a
constitutional right, and that the right was clearly established at the time of the
alleged misconduct. Pearson, 555 U.S. at 232; see Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The district court has discretion to decide “which of the two prongs
of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. Thus, when
Defendants moved for summary judgment based on qualified immunity for Moody
and Mathis, supported by their testimony at the state court suppression hearing and
the state court’s finding -- however limited -- of no bad faith, Plaintiffs were required
to respond with affirmative evidence of bad faith if bad faith was an essential element
of their Count I claims.

       In Count I, Johnson alleged that his Fourteenth Amendment rights were
violated by Defendants’ reckless investigation of the allegations made against him by
C.P., including their failure to investigate exculpatory evidence. To establish the
alleged due process violation, Johnson must show that each individual defendant
“intentionally or recklessly failed to investigate, thereby shocking the conscience.”
Akins v. Epperly, 588 F.3d 1178, 1184 (8th Cir. 2009) (quotation omitted). This is
a question of law to which we apply a rigorous standard. “An officer’s negligent
failure to investigate inconsistencies or other leads is insufficient to establish
conscience-shocking misconduct.” Id. Rather, “[w]e have held that the following
circumstances indicate reckless or intentional failure to investigate that shocks the
conscience: (1) evidence that the state actor attempted to coerce or threaten the
defendant, (2) evidence that investigators purposefully ignored evidence suggesting
the defendant’s innocence, (3) evidence of systematic pressure to implicate the
defendant in the face of contrary evidence.” Id.

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       Here, in response to Defendants’ qualified immunity motion, Plaintiffs
presented no evidence tending to refute or contradict Defendants’ strong evidence
from the state court proceedings that their conduct in investigating C.P.’s serious
allegation of sexual misconduct, however questionable or incomplete, was not
conscious-shocking behavior as a matter of law. Rather, Plaintiffs asked the district
court to defer ruling on qualified immunity until after they subjected Moody and
Mathis to extensive, burdensome discovery. The district court did not abuse its
discretion in denying this request, consistent with the teaching of Crawford-El v.
Britton and other Supreme Court and circuit court precedents.

       Based on the summary judgment record, the district court concluded, as
Pearson v. Callahan expressly authorized, that Moody and Mathis were entitled to
qualified immunity from the Count I claims, not simply because the law was not
clearly established, but because their conduct in investigating did not violate
Johnson’s constitutional rights. This ruling was consistent with our decision in Akins
v. Epperly, and Plaintiffs do not challenge it on appeal. Evidence that investigators
ignored factual inconsistencies in the evidence, negligently failed to look into leads,
and did not question the alleged victim’s credibility is insufficient to establish that
they investigated in a reckless, conscience-shocking manner.

       Having determined that the individual Police Department Defendants are
entitled to qualified immunity on Count I, the district court properly addressed the
impact of this determination on Plaintiffs’ other claims. The court dismissed the
Count II supervisor liability claims against Chief Wingert and the City because the
individual Defendants did not violate Johnson’s constitutional rights. See A.H. v. St.
Louis Cty., Mo., 891 F.3d 721, 728 (8th Cir. 2018). It dismissed the Count III claim
for malicious prosecution because there is no evidence that Defendants Moody and
Mathis lacked probable cause or that they maliciously brought the prosecution. See
Reed v. Linn Cty., 425 N.W.2d 684, 686 (Iowa App. 1988). It dismissed the Count
IV claim for negligent hiring, retention, and supervision for lack of proof of an

                                         -10-
underlying tort by the employee investigators. See Godar v. Edwards, 588 N.W.2d
701, 708-09 (Iowa 1999). Under Iowa law, an employer has no respondeat superior
liability “unless the employee is liable” for an underlying tort. Dickens v. Associated
Anesthesiologists, P.C., 709 N.W.2d 122, 125 (Iowa 2006). Plaintiffs’ Count IX loss
of spousal consortium fails because Defendants are not liable as a matter of law on
the other claims, so no additional discovery was warranted on this claim. See, e.g.,
Bergfeld v. Unimin Corp., 226 F. Supp. 2d 970, 982-83 (N.D. Iowa 2002).

       On this record, we agree with the district court that Plaintiffs made no Rule
56(d) showing that additional discovery would overturn these summary judgment
rulings. Plaintiffs did not request additional discovery focused on the qualified
immunity issue. The district court’s determination that Plaintiffs presented no
evidence refuting Defendants’ showing of no bad faith or conscience-shocking
investigation was essential in resolving the threshold qualified immunity issue. And
that determination proved to be fatal to all of Plaintiffs’ claims against the City and
the Police Department Defendants as a matter of law. Plaintiffs requested time to
conduct wide-ranging discovery into all aspects of the investigation and numerous
Police Department policies. But they made no showing (i) that any sought-after facts
are essential to resist summary judgment on any of their claims, or (ii) that any such
evidence actually exists. Therefore, the district court did not abuse its discretion in
denying Plaintiffs’ Rule 56(d) request to defer its ruling until additional discovery
was completed and in granting summary judgment dismissing all claims.

      The judgment of the district court is affirmed.
                     ______________________________




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