                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 5 2002
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 TIMOTHY R. LOCKABY,

               Plaintiff - Appellant,                    No. 02-6033
          v.                                      (D.C. No. 00-CV-1285-L)
 L. L. YOUNG; LARRY HAHN; JACK                        (W. D. Oklahoma)
 PALMER; CECIL YOUNG; BOB
 TOMLINSON; TOM LEWIS;
 DOTTIE STREET; GENE BROOKS;
 BRENDA BROOKS; ROBERT
 BERNARD, Doctor; SHYAMYANT
 KULKARNI, Doctor; and GEORGE
 ROACH,

               Defendants - Appellees.


                             ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and HARTZ , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

to honor the request of the parties for a decision on the briefs without oral




      *
       This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is therefore

ordered submitted without oral argument.

      Defendants are employees of the Oklahoma Department of Corrections

(ODC). Plaintiff brought a § 1983 claim, alleging that they violated his Eighth

Amendment rights while he was incarcerated at the Oklahoma State Reformatory

in Granite, Oklahoma, by failing to provide a safe environment or adequate

medical care. His complaint also raised tort claims under state law.

      Plaintiff, appearing pro se, appeals the district court order granting

summary judgment for Defendants. He appears to raise four issues on appeal: (1)

whether the evidence before the district court showed a genuine issue of material

fact, precluding summary judgment; (2) whether the court should have allowed

Plaintiff more time to conduct discovery before granting Defendants’ motion for

summary judgment; (3) whether this court should allow Plaintiff to amend his

complaint to state a cause of action arising out of events which occurred after he

filed his complaint; and (4) whether the district court abused its discretion by not

granting Plaintiff’s motion for post-judgment relief. Our jurisdiction arises under

28 U.S.C. § 1291. We affirm the district court’s grant of summary judgment on

Plaintiff’s § 1983 claims and its denial of Plaintiff’s post-judgment motion. Also,

we deny Plaintiff’s motion to amend. We must, however, reverse the district




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court judgment in part and remand with instructions to dismiss without prejudice

the state tort law claims raised by Plaintiff.

I.    Background

      The underlying facts are not disputed. On March 23, 2000, Plaintiff

stepped into an uncovered manhole located on prison grounds and injured himself.

Until moments before his fall, the manhole had been covered with a piece of

three-quarter-inch plywood. The plywood, however, had been washed away by

runoff water from a rainstorm. The same runoff obscured the hole. A guard

noticed the potential danger and shouted to Plaintiff to look out, but he did not

hear the warning in time. The make-shift manhole cover was replaced by a

permanent metal one on March 28, 2000.

      After his accident Plaintiff received extensive medical care; he was treated

at the prison medical facility on numerous occasions and saw several specialists,

including an orthopedist, a urologist, and a neurologist. His doctors prescribed

various medications and treatment programs and conducted numerous tests (x-

rays, MRI, and blood and urine tests) to determine the cause of his ailments.

After almost a year, Plaintiff’s doctors determined that he had a spinal injury that

would require surgery to correct. He underwent the prescribed operation on

January 25, 2001.




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      Prior to his surgery, Plaintiff filed the complaint in this case. The district

court referred the matter to a magistrate judge, who ordered the ODC to submit a

Special Report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). In the

same order the magistrate judge prohibited any further discovery until the Special

Report had been filed.

      After completion of the Special Report, Defendants filed a Motion to

Dismiss/Motion for Summary Judgment. The magistrate judge entered an order

explaining to Plaintiff that he was required to respond to Defendants’ motion and

that his response would have to comply with Rule 56 of the Federal Rules of Civil

Procedure. The order also stated that to defeat Defendants’ motion, Plaintiff’s

response would have to be supported by “affidavits and/or documents to set forth

specific facts showing that there is a genuine issue of material fact to be litigated

at the trial.” Plaintiff filed a timely and lengthy response, discussing the facts of

the case and providing supporting documentation. Plaintiff made no argument in

his response that he lacked adequate time to discover information material to his

case, nor did he ask for additional time in which to conduct discovery.

      Based on the documents before him, the magistrate judge entered his

Report and Recommendation that Defendants’ motion for summary judgment be

granted. The magistrate judge determined that there were no genuine issues of

material fact relating to either of Plaintiff’s Eighth Amendment claims. He found


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no evidence that the ODC Defendants acted with deliberate indifference to

Plaintiff’s health or safety with regard to the conditions that caused Plaintiff’s

injury. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Perkins v. Kan. Dep’t

of Corr., 165 F.3d 803, 807 (10th Cir. 1999). Nor did he find any evidence that

Defendants acted with deliberate indifference to Plaintiff’s serious medical needs

by failing to provide him with adequate medical care after his fall. See Estelle v.

Gamble, 429 U.S. 97, 104-06 (1976); Daniels v. Gilbreath, 668 F.2d 477, 481-82

(10th Cir. 1982). The magistrate judge further recommended that the district

court decline to exercise supplemental jurisdiction over the state law claims.

      Plaintiff asked for and received a time extension to file a response to the

Report and Recommendation. In his response he claimed that he had not had

enough time to conduct proper discovery. He also asserted that he intended to

conduct discovery to substantiate his claims (1) regarding Defendants’

administration of, or failure to administer, pain medication and (2) regarding

Defendants’ failure to securely cover the manhole. He did not, however, explain

why further discovery would enable him to obtain material information not

already before the court. The Special Report contained copies of Plaintiff’s

medical records and his doctor’s affidavit; and Plaintiff’s own response to

Defendants’ summary judgment motion contained incident reports describing the

events surrounding his accident. There appears to be no dispute as to the facts.


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      The district court entered an order adopting the magistrate judge’s Report

and Recommendation “in its entirety,” but mentioned only the § 1983 claims, not

the state law claims, and the judgment simply stated that “judgment is hereby

entered in favor of defendants . . . and against plaintiff Timothy Lockaby.”

      Plaintiff filed a Motion for Reconsideration, in which he again alleged lack

of adequate time to conduct discovery. He claimed that the magistrate judge’s

earlier order directing the ODC to prepare the Special Report suspended his

discovery efforts, and the subsequent order advising him of his responsibilities in

responding to Defendants’ summary judgment motion was inadequate to inform

him that he was allowed to resume discovery. The district court denied the

motion.

II.   Analysis

      A.     Summary Judgment

      The only argument clearly stated in Plaintiff’s brief is that the court did not

allow him to conduct discovery before it granted Defendants’ summary judgment

motion. Nevertheless, because we construe the pleadings of pro se parties

liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we will also

address what may be Plaintiff’s further claim that summary judgment was

improper even based on the record before the district court.




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        We review the grant of a motion for summary judgment de novo. Applied

Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990). We apply the same legal standard used by the district court under Rule

56(c) and “examine the record to determine if any genuine issue of material fact

was in dispute; if not, the court must decide if the substantive law was correctly

applied.” Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.

1988). We examine the factual record in the light most favorable to the non-

moving party. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir.

1988). The non-moving party may not, however, rely solely on its pleadings but

must set forth specific facts showing that there is a genuine issue for trial with

regard to those dispositive matters for which it carries the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

        As for Plaintiff’s contention that summary judgment was improper because

there was evidence in the record showing genuine issues of material fact, we

agree with the district court’s conclusion that there was no basis shown for

Plaintiff’s § 1983 claim. We therefore affirm the district court’s decision for

substantially the reasons set forth by the district court in its order filed

November 27, 2001, and by the magistrate judge in his report filed February 28,

2001.

        We now turn to Plaintiff’s assertion that he is entitled to relief because the


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magistrate judge did not allow him to conduct discovery in order to bolster his

argument against summary judgment. A party opposing summary judgment may

be entitled to a delay in proceedings in order to conduct discovery. See Fed. R.

Civ. P. 56(f); Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1521

(10th Cir. 1992). But the party must do more than simply allege that further

discovery is necessary; “the party must demonstrate precisely how additional

discovery will lead to a genuine issue of material fact.” Ben Ezra, Weinstein &

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

      Here, the contents of Plaintiff’s pleadings on the matter are either

inapposite or conclusory, alleging only that if given more time to conduct

discovery, he could obtain the information necessary to show a genuine issue of

material fact. Because Plaintiff failed to explain adequately how further

discovery would have shown the existence of such an issue, the district court did

not err in rejecting his request for more time.

      B.     Request to Amend Complaint

      In his opening brief on appeal, Plaintiff expresses his desire to amend his

complaint to include allegations of “retaliatory transportation” and failure to

provide adequate medical care, which relate to the conditions under which he was

transported from the hospital after his back surgery. We decline this request. An

appellate court will not entertain a motion to amend a complaint not properly


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raised before the district court. See Tele-Communications, Inc. v. C.I.R., 104 F.3d

1229, 1232 (10th Cir. 1997) (appellate court will not consider an issue raised for

the first time on appeal). Although Plaintiff did complain about his post-surgery

treatment in his response to Defendants’ summary judgment motion, he never

moved the court to amend his complaint to include additional claims arising from

the conduct.

      C.       Post-judgment Relief

      Plaintiff’s briefs also appear to challenge the district court’s denial of his

post-judgment motion for relief. Preliminarily, we observe that although the

district court treated Plaintiff’s motion as one falling under Rule 60(b) of the

Federal Rules of Civil Procedure, perhaps it was a Rule 59(e) motion. Which rule

is the applicable one depends upon whether the motion was filed within ten days

of the date of judgment. The district court entered its judgment on July 12, 2001.

Thus, the ten-day deadline for filing a timely motion under Rule 59(e) expired on

July 26, 2001. See Fed. R. Civ. P. 6(a). Although Plaintiff’s motion was not

stamped by the court clerk until July 31, 2001, the “prisoner mailbox rule”

provides that an inmate’s pleadings are deemed filed as of the date on which they

are deposited into the appropriate prison mailing system. See Houston v. Lack,

487 U.S. 266, 275-76 (1988); United States v. Warner, 54 F.3d 788, 1995 WL

307586, at *2 (10th Cir. 1995) (unpublished decision) (holding that “prisoner


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mailbox rule” is applicable to filings in district court proceedings). Plaintiff’s

post-judgment motion contained a “certificate of mailing” indicating that the

document had been mailed on July 25, 2001—within ten days of the entrance of

the judgment. Such a certificate may have been sufficient to afford Plaintiff the

benefit of the prisoner mailbox rule. See Bridgeforth v. Gibson, 162 F.3d 1172,

1998 WL 729256, at *4 n.2 (10th Cir. 1998) (unpublished decision).

      In any event, we need not resolve this issue here; both Rule 60(b) and Rule

59(e) rulings are reviewed for an abuse of discretion. See Campbell, 962 F.2d at

1523 (Rule 59(e)); Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir.

1992) (Rule 60(b)). Because the district court properly granted Defendants’

summary judgment motion and Plaintiff has failed to show any additional

evidence or circumstances that would undermine the summary judgment

determination, the district court did not abuse its discretion in denying Plaintiff’s

motion, however styled. Therefore, we affirm the district court’s denial of

Plaintiff’s motion for post-judgment relief.

      D.     State Tort Claims

      Finally, we note an oversight by the district court in entering judgment.

The district court’s order adopted the magistrate judge’s recommendations, but

both the order and judgment failed to address Plaintiff’s state law claims. The




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judgment of the district court should be corrected to dismiss the state tort claims

without prejudice. We remand for this purpose.

III.   Conclusion

       We AFFIRM the judgment below with respect to Plaintiff’s § 1983 claims,

but we REVERSE the judgment with respect to the state law claims and

REMAND with instructions to correct the judgment so that Plaintiff’s state law

claims are dismissed without prejudice.

                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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