                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      May 17, 2006
                             FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                       Clerk of Court

    ESTATE OF RICHARD RICCI;
    ANGELA RICCI,

               Plaintiffs-Appellants,

    v.                                                 No. 05-4185
                                                (D.C. No. 2:03-CV -749-TS)
    SA LT LA K E C ITY CO RPO RA TION,                  (D. Utah)
    a m unicipal corporation; R IC K
    DINSE; DO N B ELL; JERRY L.
    M EN D EZ; M A RK SC HA RM A N,

               Defendants-Appellees,

         and

    STATE OF UTAH ; CLINT FREIL;
    DR. RICHARD M . GARDEN; LEW IS
    P. BAILEY, R.N.,

               Defendants.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      On behalf of the estate of her deceased husband Richard Ricci and herself,

plaintiff Angela Ricci sued Salt Lake City, individual Salt Lake City police

officers, and state defendants under 42 U.S.C. § 1983. She appeals the district

court’s denial of her motion for a continuance under Rule 56(f) of the Federal

Rules of Civil Procedure and its grant of summary judgment in favor of the

Salt Lake City defendants. Exercising our jurisdiction under 28 U.S.C. § 1291,

we affirm.

                                  BACKGROUND

      On June 5, 2002, a young girl was abducted from her Salt Lake City home.

Shortly afterwards, Salt Lake City Police Department officers publicly identified

M r. Ricci, a parolee who had worked as a handyman in the missing girl’s home,

as a potential suspect. The city defendants interviewed him and obtained arrest

warrants for crimes he had admitted, including the theft of several items from the

girl’s residence at an earlier time.

      M r. Ricci was arrested by state officers on June 14, 2002 for an unrelated

parole violation and returned to the Utah State Prison. He was held in maximum

security because, as the deputy warden stated in deposition testimony, “[g]iven

the notoriety of his circumstances, it would not [have been] w ise to place him in

population, which would endanger his life.” Aplt. App. at 130. W hile in custody,

M r. Ricci suffered a massive cerebral hemorrhage and died on August 30, 2002.



                                        -2-
M onths later, the missing girl was found and her accused kidnappers w ere

arrested.

      On August 29, 2003, M s. Ricci filed this lawsuit, alleging violations of her

husband’s civil rights through defamation, false arrest, unlawful detention,

baseless prosecution, false imprisonment, cruel and unusual punishment, and

wrongful death. The state defendants reached a settlement with M s. Ricci. The

city defendants, however, sought summary judgment under Rule 56 of the Federal

Rules of Civil Procedure. The city defendants relied primarily on M s. Ricci’s

discovery answers, dated November 8, 2004, which conceded that she had no

factual support for asserting that they were involved in M r. Ricci’s arrest,

detention, or death. As additional legal grounds for summary judgment, they

argued that defamation does not generally rise to the level of a § 1983 action and

that the baseless prosecution claim failed because the city’s theft charges against

M r. Ricci did not end in his favor. On the city defendants’ motion, the magistrate

judge assigned to the case stayed discovery until after the district court ruled on

the summary judgment motion.

      M s. Ricci did not respond to the substance of the summary judgment

motion. Instead, she requested a continuance under Rule 56(f). The

accompanying affidavit asserted that, with additional discovery, she could gather

evidence supporting her speculation that the city defendants conspired with the

state defendants to coerce M r. Ricci’s confession by setting restrictive conditions

                                          -3-
of confinement. The district court denied M s. Ricci’s Rule 56(f) motion and

granted defendants’ summary judgment motion. 1


                                   D ISC USSIO N

      In her appellate brief, M s. Ricci argues that the district court abused its

discretion in denying her Rule 56(f) motion and that summary judgment was

inappropriate because the case turns on questions of motive. 2 This court review s

the district court’s Rule 56(f) ruling for abuse of discretion and its summary

judgment ruling de novo. Trask v. Franco, No. 04-2078, 2006 W L 1075595, *3

(10th Cir. Apr. 25, 2006) (stating Rule 56(f) standard); Smith v. Cummings,

Nos. 05-3180, 05-3262, 2006 W L 1067305, *2 (10th Cir. Apr. 24, 2006)

(stating summary judgment standard).

Rule 56(f)

      There is no requirement in Rule 56 that discovery be complete before

summary judgment can be entered. Pub. Serv. Co. of Colo. v. Cont’l Cas. Co.,



1
       The city defendants also filed a motion under Fed. R. Civ. P. 11 for
sanctions against M s. Ricci’s attorney. The court’s denial of the motion is not an
issue in this appeal.
2
       W e note that the issues discussed in the argument section of M s. Ricci’s
brief are somewhat inconsistent with her statement of issues. In the statement of
issues section, she phrases the issues as: “(1) W hether the trial court was unduly
prejudiced to conclude that Ricci lacked evidence so soon into the discovery
phase during litigation?” and “(2) W hether the trial court erred in denying [her]
56(f) request so as to allow a proper response to Defendant’s [sic] motion for
summary judgment based [sic]?” Aplt. Br. at 1.

                                         -4-
26 F.3d 1508, 1518 (10th Cir. 1994). Rule 56(f), however, grants discretion to

the district court to delay ruling on a summary judgment motion while the

opposing party conducts additional discovery. 3 The party seeking more time must

provide an affidavit identifying the facts that are not available and what steps she

has taken to obtain those facts. Comm. for the First Amendment v. Campbell,

962 F.2d 1517, 1522 (10th Cir. 1992). And the affidavit must do more than

simply allege that further discovery is necessary; it “must demonstrate precisely

how additional discovery will lead to a genuine issue of material fact.” Ben Ezra,

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

“M oreover, merely asserting that the evidence supporting a party’s allegation is in

the hands of the opposing party is insufficient to justify a denial of a motion for

summary judgment under Rule 56(f).” Jensen v. Redevelopment Agency, 998 F.2d

1550, 1554 (10th Cir. 1993) (quotations and alterations omitted).

      M s. Ricci’s Rule 56(f) filings w ere concentrated on criticizing the city

defendants’ discredited suspicions that M r. Ricci was responsible for the child’s




3
      Rule 56(f) provides:

      Should it appear from the affidavits of a party opposing the motion
      [for summary judgment] that the party cannot for reasons stated
      present by affidavit facts essential to justify the party’s opposition,
      the court may refuse the application for judgment or may order a
      continuance to permit affidavits to be obtained or depositions to be
      taken or discovery to be had or may make such other order as is just.

                                         -5-
abduction. She also asserted that an additional fourteen depositions w ould

uncover admissible evidence of genuine issues of material fact.

      As the district court recognized, M s. Ricci presented “only a barrage of

inferences” linking her intended discovery to the city defendants’ potential

liability. Aplt. App. at 337, 347. She failed to explain how the contemplated

depositions would enable her to oppose the operative facts: M r. Ricci was

arrested by state agents for a parole violation, he was incarcerated in a state

facility, and he died in that facility. Under these circumstances, the district court

did not abuse its discretion in denying M s. Ricci’s Rule 56(f) request.

Summary Judgment

      Summary judgment is appropriate “if the pleadings, depositions, answ ers 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 moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). W e examine

“the record and all reasonable inferences that might be drawn from it in the light

most favorable to the non-moving party.” Palladium M usic, Inc. v.

EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).

      M s. Ricci claims that entry of summary judgment was inappropriate

because the city defendants’ motivation is an issue to be determined by a

factfinder. She proceeds from a correct premise. W e have observed that if

plaintiff claims a constitutional violation, “summary judgment may be precluded

                                          -6-
because questions concerning defendant’s motives or knowledge must be

determined.” Seamons v. Snow, 206 F.3d 1021, 1028 (10th Cir. 2000) (quotation

omitted). This is true if “a necessary element of the claim for relief presents an

inquiry into the state of mind of one or more of the parties.” Id. at n.2 (quotation

omitted).

      Here, however, the city defendants’ motivation is irrelevant to our summary

judgment analysis. On the record before us, there is no genuine dispute about the

city defendants’ lack of involvement in the conditions of M r. Ricci’s confinement

and his unfortunate death. In the context of this case, their reasons for singling

out M r. R icci as a suspect have no legal significance. See M itchell v. M aynard,

80 F.3d 1433, 1441 (10th Cir. 1996) (stating that proof of personal participation

is essential to recovery on a § 1983 claim).

      Further, M s. Ricci has no § 1983 cause of action for defamation. See

Siegert v. Gilley, 500 U.S. 226, 234 (1991) (stating that there is no “constitutional

protection for the interest in reputation”). And there is no evidentiary support for

a claim based on malicious prosecution because the city defendants charged M r.

Ricci w ith only his admitted thefts. See Roska ex rel. Roska v. Peterson, 328 F.3d

1230, 1244 (10th Cir. 2003) (using state law as a starting point for a

constitutional claim of malicious prosecution and explaining that Utah requires a

showing of criminal proceedings initiated for an improper purpose and without

probable cause against an innocent plaintiff, along with proof that the proceedings

                                          -7-
were terminated in favor of the accused). The district court properly granted the

city defendants’ summary judgment motion. 4

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     W ade Brorby
                                                     Circuit Judge




4
      M s. Ricci also devotes a section of her brief to an assertion that entry of
summary judgment was premature. Aplt. Br. at 28-30. This section simply
re-works her Rule 56(f) argument and we decline to address it separately.

                                         -8-
