                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0056n.06
                           Filed: October 28, 2004

                                           No. 03-6133

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


PHILIP D. OVERSTREET,                            )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )
                                                 )   ON APPEAL FROM THE UNITED
LEXINGTON-FAYETTE                  URBAN         )   STATES DISTRICT COURT FOR THE
COUNTY GOVERNMENT,                               )   EASTERN DISTRICT OF KENTUCKY
                                                 )
       Defendant-Appellee.                       )
                                                 )
                                                 )



Before: MARTIN, COLE, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Philip D. Overstreet filed

an action in the United States District Court for the Eastern District of Kentucky against his

employer, the Lexington-Fayette Urban County Government (“LFUCG”), on behalf of himself and

all former, current and future officers and employees in various Divisions, asserting that the

LFUCG’s real property disclosure policy violated his Third, Fourth, Fifth, Ninth and Fourteenth

Amendment rights by (1) violating his due process rights, (2) violating his Fourth Amendment

rights, (3) violating his right to privacy, (4) violating his equal protection rights and (5) being

unconstitutionally vague. Overstreet also brought claims under the corresponding provisions of the

Kentucky Constitution. Plaintiff sought a declaratory judgment, injunctive relief, and damages. On
No. 03-6133
Overstreet v. Lexington-Fayette Urban County Government

December 17, 2000, the district court denied Overstreet’s request for a temporary injunction. This

court affirmed the ruling of the district court.

       Following the court’s denial of an injunction, LFUCG filed a motion to dismiss with the

district court. The district court construed LFUCG’s motion to dismiss as a motion for summary

judgment and entered judgment for LFUCG on May 27, 2003, from which Overstreet now appeals.

For the following reasons, we affirm the district court’s grant of summary judgment in favor of

LFUCG.

                                                   I.

       On October 16, 2000, the LFUCG announced a new policy requiring that certain employees

disclose their own, as well as their family’s, real property and business interests in Fayette County,

Kentucky. The stated purpose of the policy was to address concerns over a perceived conflict

between private interests and public duties of officers and employees of the LFUCG and to promote

“confidence in the integrity of the government.”

       Overstreet was an employee of LFUCG in the Division of Engineering at the time this policy

was promulgated. Overstreet received the disclosure form and was instructed to complete it by

November 1, 2000. Overstreet returned the form by the requested date, filling out only his name,

division, and employee number, and attaching a notarized statement to the otherwise blank form

which stated that the information was a matter of public record and could be so obtained if desired.

In response, LFUCG disciplined Overstreet in the form of a written reprimand and instructed him




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Overstreet v. Lexington-Fayette Urban County Government

to complete the form. Overstreet failed to do so and was thus disciplined in the form of suspension

without pay for seven days.1

         On November 29, 2000, Overstreet filed a complaint in the Eastern District of Kentucky

asserting on his own behalf and on behalf of all former, current and future officers and employees

that the policy violated his Third, Fourth, Fifth, Ninth, and Fourteenth Amendment rights under the

United States Constitution as well as the equivalent provisions of the Kentucky Constitution.

Overstreet alleged that the policy violated his right to privacy, his right to be free from unreasonable

searches and seizures, his equal protection rights, and his due process rights. Overstreet also asserted

that the policy was impermissibly vague. Overstreet sought a declaratory judgment, an injunction,

and damages as well as attorneys’ fees and costs.

         Overstreet filed a motion for a temporary injunction on November 29, 2000. The district

court conducted a hearing on Overstreet’s motion on November 30, 2000, and entered an order

denying Overstreet’s motion on December 1, 2000. Overstreet filed a Notice of Appeal from that

decision and also filed a Motion for Temporary Injunction Pending Appeal in the district court and

the Sixth Circuit. The district court denied Overstreet’s request for an injunction once more, while

the Sixth Circuit granted Overstreet’s motion in part and enjoined LFUCG from initiating

administrative charges for Overstreet’s dismissal pending the appeal. On September 30, 2002, the

         1
           Overstreet appealed LFUCG’s decision to discipline him to the LFUCG Civil Service Commission
(“Commission”), which upheld the disciplinary action. Overstreet appealed this finding to the Fayette Circuit Court,
and LFUCG removed the case to federal district court in a separate action. The district court issued an opinion in that
case finding the Commission’s decision to be arbitrary and finding that the Commission’s actions during the pendency
of the district court’s review of its decision had violated Overstreet’s procedural due process rights. In an opinion filed
simultaneously with this opinion, we vacated the district court’s opinion and remanded the case to the district court with
directions to remand it to state court. See Lexington-Fayette Urban County Gov’t Civil Serv. Comm’n v. Overstreet ,
03-5851.

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Overstreet v. Lexington-Fayette Urban County Government

Sixth Circuit affirmed the district court’s denial of the injunction. Overstreet v. Lexington-Fayette

Urban County Gov’t, 305 F.3d 566, 580 (6th Cir. 2002).

         Following the resolution of the injunction issue, LCUFG filed a motion to dismiss on

February 7, 2003. Overstreet filed a response on February 25, 2003, and on April 21, 2003, filed

a motion for partial summary judgment, on the ground that the district court’s determination in the

companion case that Overstreet’s procedural due process rights had been violated should be treated

as res judicata in the instant case.2

         The district court construed LFUCG’s motion to dismiss as a motion for summary judgment

and granted the motion on May 27, 2003. The court stated, after quoting language from the Sixth

Circuit opinion deciding the injunction issue, that Overstreet had waived all of his claims, save for

the privacy and Fourth Amendment claims, because he did not argue the other claims before the

Sixth Circuit. In a footnote, the district court rejected Overstreet’s attempt to assert a procedural due

process challenge in his motion for partial summary judgment based on the court’s finding of a

procedural due process violation in the companion case. The district court stated that the

determination in the companion case was not entitled to preclusive effect in the present case. The

district court proceeded to resolve the privacy and Fourth Amendment claims against Overstreet on

the merits.

         Overstreet then filed a motion to alter, amend or vacate, on the grounds that (1) the district

court’s ruling that Overstreet had waived his claims not raised before the Sixth Circuit was



         2
          Although Overstreet refers to res judicata in his brief, the theory he is asserting is actually issue preclusion.
See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).
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Overstreet v. Lexington-Fayette Urban County Government

erroneous, and (2) Overstreet was denied the opportunity to conduct discovery. The district court

denied this motion on August 13, 2003. In denying this motion, the district court stated that

Overstreet “was not required to assert every theory, or argument in the complaint at the preliminary

injunction stage or during the appeal of this Court’s denial of injunctive relief,” but rather was

“required to present evidence or at least arguments pertaining to every cause of action in the

complaint or risk waiving that cause of action.” On August 29, 2003, Overstreet filed a notice

appealing (1) the district court’s order dated December 1, 2000 denying temporary injunctive relief;3

(2) the district court’s order dated May 27, 2003 granting summary judgment in favor of LFUCG;

and (3) the district court order dated August 13, 2003 denying Overstreet’s motion to alter, vacate

or amend its earlier order.

                                                            II.

         This court reviews a district court’s order granting summary judgment de novo. Nguyen v.

City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000). Summary judgment is appropriate “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 moving

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

         This court reviews the district court’s decisions regarding discovery matters for an abuse of

discretion. Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 580 (6th Cir. 2004).


         3
           Although Overstreet names the denial of injunctive relief as one of the grounds upon which he is appealing
in his Notice of Appeal, he fails to present any argument in his brief as to why the denial of an injunction should be
reversed. In any event, he has already appealed this decision, and the Sixth Circuit upheld the denial of injunctive relief
in Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566 (6th Cir. 2002). Overstreet is not entitled
to relitigate the issue in an additional appeal. See Mitchell v. Chapman, 343 F.3d 811, 819 (6th Cir. 2003). Therefore,
we do not address this issue in our opinion.
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Overstreet v. Lexington-Fayette Urban County Government

                                                          A.

         Overstreet first contends that the district court erred in finding that he had waived his claims

not raised before the Sixth Circuit in the request for injunctive relief–namely, his substantive due

process, equal protection, and unconstitutional vagueness claims–in the current action. We are in

agreement with this contention.

         In its May 27, 2003 order, the district court quoted the following language from the Sixth

Circuit:

         Although Mr. Overstreet’s Complaint asserted that the Policy violates as many as
         five provisions of the Constitution, on appeal, he argues only that the Policy
         constitutes an invasion of his privacy and an unreasonable search under the Fourth
         Amendment to the Constitution.

Overstreet, 305 F.3d at 573. Based on this language, the district court proceeded to hold that “the

plaintiff has waived all arguments in the complaint, except for the privacy and Fourth Amendment

claims argued before the Sixth Circuit.” The remainder of the district court opinion analyzed and

rejected Overstreet’s privacy and Fourth Amendment claims on the merits.4

         The district court erred in holding that Overstreet’s failure to present his remaining claims

before the Sixth Circuit resulted in a waiver of those claims before the district court. An appeal of

a district court’s denial of an injunction is a limited interlocutory appeal, governed by 28 U.S.C. §

1292(a)(1). A decision not to appeal certain issues denied at the preliminary injunction stage in no

way diminishes an individual’s right to pursue those issues in the district court. Cf. F.W. Kerr


         4
          Although Overstreet did not present any arguments on his privacy and Fourth Amendment claims in his brief
or motion to the district court, the district court reviewed and rejected those claims on the merits. Overstreet appealed
from the entire May 27, 2003 judgment in his notice of appeal. However, he does not contest or challenge the district
court’s privacy and Fourth Amendment rulings in his brief. These claims are therefore waived. See United States v.
Elder, 90 F.3d 1110, 1118 (6th Cir. 1996).
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Overstreet v. Lexington-Fayette Urban County Government

Chem. Co. v. Crandall Assoc., Inc., 815 F.2d 426, 428 (6th Cir. 1987) (noting that failure to appeal

an issue as of right from an order concerning a preliminary injunction does not waive the issue in

an appeal from final judgment). Because the appeal to the Sixth Circuit was from the district court’s

decision to deny a preliminary injunction, rather than an appeal from the final judgment,

Overstreet’s failure to raise all of his claims before this court did not serve to waive any of his

claims. This court’s purpose at that point in the litigation was to determine whether the district

court’s order regarding the injunction constituted an abuse of discretion, Overstreet, 305 F.3d at 573;

such a review had no bearing on the merits of the case. See Weaver v. Univ. of Cincinnati, 970 F.2d

1523, 1538 (6th Cir. 1992) (holding that a court hearing an interlocutory appeal from a denial of

injunctive relief does not review the merits of the claim); Duplex Printing-Press Co. v. Campbell

Printing-Press & Mfg. Co, 69 F. 250, 252 (1895) (holding that a district court determining whether

to grant a preliminary injunction cannot “finally . . . determine all the questions between the parties

to the action, because it is not within the proper province of this court to do so on an appeal from

an order granting a preliminary injunction.”). To the extent that the district court’s ruling granting

summary judgment in LFUCG’s favor on Overstreet’s claims rested on the notion that he had

waived the claims by not raising them on the interlocutory appeal, that reasoning was erroneous.

                                                  B.

       Notwithstanding the above error in the district court’s reasoning, we hold that the district

court was correct in granting summary judgment on Overstreet’s substantive due process, equal

protection, and unconstitutional vagueness claims, as Overstreet failed to present any genuine issue

of material fact on these remaining claims. The district court correctly stated in its August 13, 2003

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Overstreet v. Lexington-Fayette Urban County Government

order that Overstreet “was not required to assert every theory, or argument in the complaint at the

preliminary injunction stage or during the appeal of this Court’s denial of injunctive relief,” but

rather was “required to present evidence or at least arguments pertaining to every cause of action

in the complaint.” Because Overstreet failed to do so, LFUCG was entitled to a judgment as a

matter of law pursuant to Federal Rule of Civil Procedure 56(c).

       Rule 56(c) states that summary judgment is appropriate where “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 moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). The court must determine in a motion for summary

judgment “whether the evidence presents a sufficient 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).         The moving party bears the initial burden of

demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Once the moving party shows an absence of evidence to support the non-moving

party’s claim, the burden shifts to the non-moving party to show that there is more than “some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). The non-moving party may not rely on mere allegations and assertions in his

pleadings, but rather must present specific facts that show that there is some material issue

warranting a trial. Nichols v. Moore, 2004 WL 2039356, at *3 (E.D. Mich. Sept. 3, 2004). If the

non-moving party cannot meet this burden, summary judgment is appropriate.




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       In this case, Overstreet failed to present his substantive due process, equal protection, and

unconstitutional vagueness claims in a manner sufficient to survive summary judgment.

Overstreet’s memorandum in opposition to LFUCG’s motion to dismiss is devoid of any ground

upon which to find summary judgment inappropriate on these claims. Despite a thorough recitation

of the facts of the case, Overstreet fails to present even a single piece of evidence, legal authority,

or valid argument in support of the allegations in his complaint that his substantive due process or

equal protection rights were violated or that the policy was unconstitutionally vague. Rather, the

motion in opposition argues only that the district court should hear Overstreet’s claims on the merits

because the Sixth Circuit did not rule upon the issues presented.

       In fact, Overstreet’s motion, like his complaint, does barely more than make oblique

references to the constitutional violations of which he complains. Overstreet states that he “intend[s]

to demonstrate, through the course of discovery, that the actions taken by the LFUCG were

inappropriate, that the policies and procedures were improperly implemented, unconstitutionally

enforced, erroneously applied, and that [he] was improperly singled out for unfair and inequitable

treatment, all as set forth in the original Complaint.” However, Overstreet fails to specify precisely

what discovery would have revealed that would enable him to “demonstrate” the causes of action

“set forth in the original Complaint” in the future. Because Overstreet failed to present even mere

arguments in support of his claims, we find that summary judgment was appropriate on Overstreet’s

substantive due process, equal protection, and unconstitutional vagueness claims.




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                                                  C.

       On appeal, Overstreet also asserts that the district court erred in failing to grant his motion

for partial summary judgment. In that motion, Overstreet asserted that the district court’s

determination in the companion case that Overstreet’s procedural due process rights had been

violated due to the Commission’s failure to produce an accurate transcript of the Commission

hearing should have been given preclusive effect in this case. We find that the district court did not

err in denying Overstreet’s motion.

       Overstreet argues that the doctrine of issue preclusion should operate in this case to entitle

him to judgment as a matter of law on his due process claim. The four elements of issue preclusion

are: (1) the issue precluded must be the same issue involved in a prior proceeding; (2) the issue must

actually have been litigated in the prior proceeding; (3) determination of the issue must have been

a critical and necessary part of the decision in the prior proceeding; and (4) the prior forum must

have provided the party against whom estoppel is asserted a full and fair opportunity to litigate the

issue. Cent. Transp., Inc. v. Four Phase Sys., Inc., 936 F.2d 256, 259 (6th Cir. 1991); NLRB v.

Master Slack and/or Master Trousers Corp., 773 F.2d 77, 81 (6th Cir. 1985).

       The doctrine of issue preclusion is not appropriate on these facts. Overstreet cannot satisfy

the first element required for issue preclusion, and therefore, his claim must fail. The district court

specifically held in the companion case that the Commission’s failure to produce an accurate

transcript of the Commission hearing reviewing the disciplinary action taken against Overstreet

deprived him of meaningful post-deprivation review, and therefore violated his procedural due

process rights. By contrast, at issue in the current case is the constitutionality of LFUCG’s real

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Overstreet v. Lexington-Fayette Urban County Government

property disclosure form itself. The court’s finding that Overstreet’s procedural due process rights

had been violated in the specific context of the district court’s review of the Commission’s hearing

has no bearing on the constitutionality of LFUCG’s policy. Because these are two separate and

distinct issues, issue preclusion is not appropriate in this case.

                                                  D.

        Finally, Overstreet claims that the district court abused its discretion in failing to grant his

motion to alter, vacate, or amend its order on the ground that he was denied an opportunity to

conduct discovery, such that he was unable to properly defend his claims against the summary

judgment motion. We hold that the district court did not abuse its discretion.

        In order to survive a summary judgment motion, it was incumbent upon Overstreet to do

more than make vague allegations or conclusory statements regarding the need for discovery. See

Triplett v. Connor, 2004 WL 1987146, at *2 (6th Cir. Sept. 3, 2004); Lanier v. Bryant, 332 F.3d 999,

1006 (6th Cir. 2003) (“Nebulous assertions that more discovery time would have produced evidence

to defeat summary judgment will be unavailing.”). Rather, Overstreet had the burden of showing

that he could have obtained information through discovery that would have disclosed facts material

to his case. See Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997); Chilingirian v. Boris, 882

F.2d 200, 203 (6th Cir. 1989).

        Overstreet has failed to meet this burden. Overstreet failed to concretely state what relevant

information additional discovery time might possibly uncover that would aid this court in disposing

of the case, as required by Sixth Circuit case law. Overstreet has not reached beyond “[n]ebulous




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Overstreet v. Lexington-Fayette Urban County Government

assertions”, Lanier, 332 F.3d at 1006, and therefore, has not successfully met his burden in

challenging the district court’s determination on the issue of adequate discovery time.

                                               III.

       For the foregoing reasons, we affirm the district court’s grant of summary judgment to

LFUCG.




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