                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-7528


SCOTT TYREE,

                Plaintiff – Appellant,

          v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:14-ct-03158-BO)


Submitted:   February 19, 2016            Decided:   March 23, 2016


Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


Scott Tyree, Appellant Pro Se. Michael Bredenberg, Special
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Scott William Tyree, a federal prison inmate, appeals from

the   district          court’s       order       granting       summary    judgment        to   the

Government in Tyree’s suit filed under the Federal Tort Claims

Act (“FTCA”).             Tyree alleged that prison officials failed to

protect him from, and failed to respond in a timely manner to,

an    attack       by     his    cellmate.               Based     upon    the       Government’s

affidavits         accompanying            its    motion    for     summary      judgment,       the

district          court     ruled          that      the     prison        guards       responded

immediately to the altercation, and that Tyree did not assert a

claim    that      prison       officials         should     have       known   of    the    danger

prior    to       the    attack.            On    appeal,     Tyree       contends      that     the

district       court       abused          its     discretion       in     entering         summary

judgment prior to discovery.                        We agree and remand for further

proceedings.

        We   “review       de    novo       a    district    court’s       award      of    summary

judgment,         viewing       the    facts       and     inferences       reasonably        drawn

therefrom in the light most favorable to the nonmoving party.”

Woollard      v.        Gallagher,         712     F.3d    865,     873     (4th Cir.        2013).

“Summary judgment is appropriate only if the record shows ‘that

there is no genuine dispute as to any material fact and the

movant       is     entitled          to        judgment     as     a     matter      of     law.’”

Id. (quoting Fed. R. Civ. P. 56(a)).                              The relevant inquiry on

summary judgment is “whether the evidence presents a sufficient

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disagreement to require submission to a jury or whether it is so

one-sided        that      one   party    must       prevail    as     a    matter     of    law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

To   withstand         a   summary       judgment      motion,       the     non-movant       must

produce competent evidence sufficient to reveal the existence of

a genuine issue of material fact for trial.                                  See Thompson v.

Potomac      Elec.      Power     Co.,    312     F.3d    645,     649      (4th     Cir.    2002)

(“Conclusory or speculative allegations do not suffice, nor does

a    mere    scintilla       of     evidence      in     support       of    [the    non-moving

party’s] case.” (internal quotation marks omitted)).                                    We will

uphold the district court’s grant of summary judgment unless we

conclude that a reasonable jury could return a verdict for the

non-moving party on the evidence presented.                                See EEOC v. Cent.

Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).

       Under      the       FTCA,    the       Government        has        waived    sovereign

immunity for “the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his

office      or   employment.”             28    U.S.C.     §   1346(b)        (2012).        With

respect to federal prisoners, the Supreme Court has determined

that the duty of care owed by the Bureau of Prisons (“BOP”) is

fixed       by    18       U.S.C.    §     4042       (2012),      independent          of    any

inconsistent state rule.                 United States v. Muniz, 374 U.S. 150,

164-65 (1963).             The BOP’s duty of care owed to a prisoner is

“the exercise of ordinary diligence to keep prisoners safe and

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free from harm.”           Jones v. United States, 534 F.2d 53, 54 (5th

Cir. 1976).         Regarding prisoner placement, BOP personnel can

only    be   deemed    negligent       in       violation       of   this     duty   when

personnel    knew     or    reasonably      should       have   known   of       potential

problems between inmates.             Parrott v. United States, 536 F.3d

629, 637 (7th Cir. 2008).

       Rule 56(d) requires “that summary judgment be refused where

the    nonmoving    party    has   not   had       the   opportunity        to   discover

information that is essential to his opposition.”                       Nguyen v. CNA

Corp., 44 F.3d 234, 242 (4th Cir. 1995) (addressing predecessor

to Rule 56(d)) (internal quotation marks omitted).                          The rule “is

intended as a safeguard against a premature grant of summary

judgment.”     King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994).

Requests pursuant to the rule should be denied, however, “if the

additional    evidence       sought    for      discovery       would   not       have   by

itself created a genuine issue of material fact sufficient to

defeat summary judgment.”             Ingle v. Yelton, 439 F.3d 191, 195

(4th Cir. 2006) (addressing predecessor to Rule 56(d)) (internal

quotation marks omitted).             We will not reverse the denial of a

Rule 56(d) request unless there was “a clear abuse of discretion

or, unless there is a real possibility the party was prejudiced

by the denial of an extension.”              Id.

       Here, Tyree, acting pro se, urged the district court to

defer ruling on the motion for summary judgment until after he

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had an opportunity for discovery.                    Specifically, Tyree asserted

that   the    parties     were       in    disagreement         about   the     timeline     of

events.       Tyree     claimed       that,       after     an    emergency      light      was

activated in his cell, he was beaten by his cellmate for five

minutes before officers arrived.                    The officers averred that they

responded immediately.            Tyree claims that video surveillance and

written      reports    in     the    control       of    the    BOP    would    assist      in

determining      the    actual       timeline.           Tyree     also    asserted       that

prison records could show whether his cellmate had anything on

his record that would have indicated that he should not have

been   housed    with     Tyree.           Tyree     also      questioned       whether     the

emergency      system    was     fully       operational,          given      that   neither

officer      stated    that     they       heard    the     emergency      tone      that    is

designed to activate together with the emergency light.                                     The

district court did not address Tyree’s contentions or rule on

Tyree’s motion.

       We find that discovery on these topics would potentially

have   created    a     genuine      issue     of    material      fact    sufficient        to

defeat summary judgment.                  Accepting Tyree’s assertions as true,

prison officials did not respond for over five minutes after the

emergency      light     was     activated.              The     record    is    devoid      of

information regarding whether this alleged five minute delay was

reasonable.      See Palay v. United States, 349 F.3d 418, 432 (7th

Cir. 2003) (providing scenarios whereby failure to respond in

                                              5
timely    manner    could       constitute       negligence).       Given      that    the

affidavits in the record do not describe the same timeline and

that     Tyree’s    discovery        requests       could     result     in     relevant

evidence to which he would otherwise have no access, we conclude

that the district court’s failure to rule on Tyree’s Rule 56(d)

motion was an abuse of discretion.

       While we express no opinion on the Government’s defenses

that were not addressed by the district court or the scope of

proper    discovery,       we    find    that     the   district    court      erred    in

granting       summary    judgment       based     solely     on   the   Government’s

disputed timeline without permitting discovery.                     Accordingly, we

vacate    and    remand    for     further       proceedings.      We    deny    Tyree’s

motion    to    grant     appeal    by    default.       We     dispense      with    oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                               VACATED AND REMANDED




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