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No. 96-1701

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Charles Gordon Long, *

*

Appellant, *

*

v. *

*

County of Goodhue, a political *

subdivision of the State of *

Minnesota; Forest M. *

Wipperling, individually and *

as Sheriff of Goodhue County; *

Dean Albers, individually and *

as Chief Deputy of the *

Goodhue County Sheriffs *

Department; Rick Olander, *

individually and as Lieutenant * Appeal from the United States

of the Goodhue County Sheriffs * District Court for the 

Department; Don Skillstad, * District of Minnesota.

individually and as Sergeant *

of the Goodhue County Sheriffs * [UNPUBLISHED]

Department; Hermann Von *

Knobelsdorff, individually and *

as Sergeant of the Goodhue *

County Sheriffs Department; * 

Doe, One; Doe, Two, *

individually and as jailer of *

the Goodhue County Sheriffs *

Department, jointly and *

severally, *

*

Appellees. *

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 Submitted: January 6, 1997

 Filed: January 10, 1997

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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

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PER CURIAM.
 The Honorable Michael James Davis, United States District

1

Judge for the District of Minnesota, adopting the report and

recommendation of the Honorable John M. Mason, United States

Magistrate Judge for the District of Minnesota.

Charles Gordon Long appeals from the district court's order

1

dismissing this 42 U.S.C. § 1983 action. We affirm.

Long, a pretrial detainee confined in the Goodhue County Jail

beginning December 24, 1994, brought this section 1983 action against the

County of Goodhue, and its sheriff and deputies, contesting policies and

practices at the county jail. Long claimed that defendants individually,

and in conspiracy, intentionally violated his constitutional rights by

subjecting him to certain jail conditions. He sought injunctive and

declaratory relief, damages, and a jury trial. 

Defendants answered, and moved to dismiss or alternatively for

summary judgment. Defendants argued that Long did not allege any actual

injury or pain, that he failed to state an actionable Eighth Amendment or

Fourteenth Amendment claim, and that defendants were immune. Defendants

attached affidavits in support. 

The magistrate judge granted Long's request for an extension of time

to respond to allow him to research case law. In his response to the

summary judgment motion, Long argued that because the time for completing

discovery had not passed, the only issue properly before the court was an

assertion of qualified immunity by defendants in their individual

capacities, but that there was a genuine issue of material fact as to each

alleged violation. Long further asserted that damages for these violations

could be presumed. Long also moved to strike the affidavits and exhibits

from defendants' summary judgment motion. 

The magistrate judge recommended "dismissal" of the complaint because

Long had "not satisfied his burden of setting forth specific facts showing

that there [was] a genuine issue for trial."
-3-

(Appellee's Addendum at 5.) With respect to Long's motion to strike, the

magistrate judge concluded that defendants had not failed to comply with

Federal Rule of Civil Procedure 12 by filing their motion after their

answer, and that their affidavits and exhibits were relevant and

admissible. The district court, conducting de novo review, adopted the

magistrate judge's report over Long's objections, and granted defendants'

"motion to dismiss," denied Long's motion to strike, and dismissed the

complaint with prejudice. 

Although the magistrate judge and the district court's order

contained "dismissal" language, it is apparent that the district court

considered evidence presented outside the pleadings, properly converted the

motion to dismiss to one for summary judgment, and resolved the case using

the summary judgment standard. Under the plain language of Rule 12(c), a

motion for judgment on the pleadings may be brought after the pleadings are

closed, and should be treated as a motion for summary judgment if matters

outside the pleadings are presented. See Fed. R. Civ. P. 12(c). This is

precisely what occurred here. 

We know of no requirement that summary judgment must await the

deadline for completion of discovery. Had Long been unable to respond to

the summary judgment motion because he needed additional discovery, the

proper procedure would have been to seek a continuance under Rule 56(f).

When Long moved for an extension of time to respond to the summary judgment

motion, he made no mention of a need for additional discovery; he stated

that he needed more time to research case law and that he intended to move

for leave to amend his complaint to add causes of action arising after the

date of his complaint. In addition, Long had not indicated what facts

discovery would yield, only that it was possible discovery could turn up

a factual dispute, and that he should have been granted leave to amend to

incorporate those additional facts. Thus, we conclude the district court

committed no procedural error.
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We need not address the merits of the summary judgment motion because

Long has not argued the merits in his appellate brief; arguments not

briefed are considered abandoned. See Fed. R. App. P. 28(a); Primary Care

Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1212 (8th

Cir. 1993) (appellate review of issue waived where appellants' brief failed

to provide legal support); Jasperson v. Purolator Courier Corp., 765 F.2d

736, 740-41 (8th Cir. 1985)(same).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.