## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT BRUCE BRIGDEN, Deceased, by and through his Wife and Next of Kin; JANE CHURCHILL BRIGDEN, Widow and Personal Representative of the decedent Robert Bruce Brigden; DAVID BRUCE BRIGDEN; PAMELA JANE BRIGDEN OGDEN; JANICE ELAINE BRIGDEN JEFFUS; ALLEN CHURCHILL BRIGDEN; KENDRA LYNN BRIGDEN HOLTZMAN; REBECCA SUSAN BRIGDEN WELCH,

Plaintiffs - Appellants, No. 96-6339

v. W.D. Oklahoma STATE OF OKLAHOMA, ex rel. The Oklahoma Department of Corrections; LARRY FIELDS, individually and in the capacity as Director of the Oklahoma Department of Corrections; JACK COWLEY, individually and in his capacity as Warden of the Oklahoma Reformatory at Granite; LT. TERRY NEW, individually and in his capacity as a correctional officer at the Granite Reformatory; LT. WAYNE MOREY, individually and in his capacity as a correctional officer at the Granite Reformatory; RON ROSKOM, individually and in his capacity as Chaplain at the Granite Reformatory,

Defendants - Appellees. (D.C. No. CIV-95-1626-L)* This order and judgment is not binding precedent, except under the doctrines of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.

1 In addition to Mr. Brigden’s widow, his children are joined as plaintiffs in this lawsuit. Since Mrs. Brigden is suing in her capacity as personal representative and therefore has standing, for convenience we refer to her individually throughout our opinion as the plaintiff. -2- ORDER AND JUDGMENT *

Before PORFILIO , ANDERSON , and TACHA , Circuit Judges.

Robert Bruce Brigden, a convicted sex offender, was stabbed to death in his cell at the Oklahoma State Reformatory (OSR) by ano ther inmate on June 12, 1994. Subsequently his widow and personal representative 1 brought this civil rights action against the Oklahoma Department of Co rrections and its Director, the Warden of OSR, two correctional officers, and t he OSR chaplain. Her suit alleges that the defendants, in violation of Mr. Br igden’s Eighth Amendment right to be free from cruel and unusual punishment, were deliberately indifferent to the danger of physical harm to Mr. Brigden at the hands of other inmates and failed to protect him. The district court granted the defend ants’ motions for summary judgment essentially because the plaintiff had not demonstrated a genuine jury2It is unclear whether appellants appeal as to Director Fields, but they make no

argument in their brief about the district court’s ruling as to him. In any event, it is clear that the district court properly entered summary judgment in his favor. -3- question as to whether any defendant had the requir ed culpable mental state with respect to Mr. Brigden’s safety. On appeal the plaintiff contends that the record es tablishes genuine issues of fact sufficient to avoid summary judgment, and t hat, in any event, the district court abused its discretion by cutting off discovery. 2 We affirm as to all defendants except Chaplain Roskom. As to him, we r everse and remand for further proceedings.

BACKGROUND In 1992, Mr. Brigden was convicted in Woods County, Oklahoma, of eight counts of lewd molestation and one count of rape byinstrumentation and was sentenced to 60 years’ imprisonment. On August 25, 1992, he arrived at the Oklahoma State Reformatory to begin serving his sentence. The next morning he was attacked in the prison yard by other inmates ap parently because of the nature of his crime, which involved children, and its atte ndant publicity. He then requested and was placed in protective custody, an area of the prison fenced off from the general population. Prison staff supporte d Mr. Brigden’s placement in protective custody due to the nature of his offense , rating his victim potential as-4-

high. Appellants’ App. at 42. According to the reco rd submitted to us, Mr. Brigden’s incarceration then proceeded without comp laint or incident for the next 21 months. In 1994 the Department of Corrections sought to mak e various operating and housing efficiencies to accommodate the ever-gr owing inmate population in the system. One such change involved closing the p rotective custody unit at OSR and centralizing protective custody housing at the Oklahoma State Penitentiary (OSP). Planning in this regard was detailed, as sh own by the following excerpts from an April 1, 1994, memorandum from James L. Saf fle, Regional Director of the Southeastern Region, to Larry Fields, Director of the Department of Corrections: 2. We believe we can increase medium security beds b y moving the protective custody beds from the Oklahom a State Reformatory to the Penitentiary. According t o the daily system count, we would have approximately 27 beds for growth, if our protective custody count remained the same, and they were all housed at the Penitentiary. We decided to give the inmates at OSR the option to come off protection, prior to any movement of the protective custody unit to the Penitentiary. There is belief that many of the inmates will choose to rema in at OSR. Our plan is to move the protection unit off of F-4 at the Penitentiary and place all protective custody inmat es on D and E Units, which will provide 160 beds, and better protection, due to the isolation from other units, and-5- individual exercise areas. F-4 would then be used for general housing. The movement from the F Cellhouse would assist us i n better utilizing the current vacant beds that are o n the protection unit. We are consistently running 25 be ds vacant, which we desperately need to fill.

. . . . If you approve this strategy, we recommend that ourGeneral Counsel review the movement recommendations, in reference t o OSR protective custody unit being placed at the Peniten tiary, to determine if we need to conduct a classification review priorto movement. We also recommend that we prepare correspondence notif ication to our legislative leaders, prior to any movement, in orde r for them to be aware of the location change and reason for the cha nge, concerning our protective custody units. Lastly, a time schedule of all movement would be pr epared by the strategy committee, in order to coordinate all move ment, and prevent any communication breakdowns. Of course, this depe nds on your approval of the recommendations. I believe these recommendations will enhance correc ting our current reception and transfer problem, as well as addressi ng our bed vacancy problem, within the protective units at OSRand the Penitentiary. Appellants’ App. at 43-44. The plaintiff acknowledges in her brief on appeal t hat, as contemplated by the plan outlined above, Mr. Brigden was interviewe d by staff and given an option. He could remain in protective custody by t ransferring to the penitentiary at Lexington, or he could stay at OSR in the genera l population. Appellants’ Br. at 4-5, 12-13, 17. Some inmates chose to transfer to OSP. Appellants’ App. at3 In their joint motion for summary judgment the defendants recite a number of

“facts” unsupported by certified documents, affidavits based upon personal knowledge as required by Fed. R. Civ. P. 56(e), or any reference to a Martinezreport requested by the court. Martinez v. Aaron , 570 F.2d 317, 318-19 (10th Cir. 1978). One example is an assertion that thirty-three inmates chose to transfer to protective custody at OSP. Appellants’ App. at 23. Appellees then rely on those facts in their brief on appeal without citation to the record in violation of Fed. R. App. P. 28 and 10th Cir. R. 28.1. See, e.g. , Appellees’ Answer Br. at 3. The plaintiff’s brief is equally deficient. We, of course, cannot rely upon unsupported factual assertions, and we strongly deplore their use. -6- 92. Brigden not only chose, but, according to lett ers from family members, importuned corrections officials to stay at OSR. Appellants’ Br. at 12-13, 17; Appellants’ App. at 46, 47. 3 In conjunction with the dismantling of the protecti ve custody fence at OSR, Warden Cowley announced the planned removal during a scheduled weekly video broadcast to all inmates. The warden told the inmates that the fences were down and that inmates previously housed in protective cu stody who chose to stay at OSR should be treated with respect. The protective custody unit fence at OSR was removed on May 15, 1994, and Mr. Brigden was ho used in the general population. Two weeks later, on May 31, 1992, he c omplained to staff that he was being intimidated by other inmates. The write- up of the complaint uses the term “bulldogged,” without further elaboration. Ap pellants’ App. at 49. Inmates housed in the area testified at the trial of Brigde n’s killer that the killer and others were going to Brigden’s cell almost daily after the fence came down to harass and rob him. Appellants’ App. at 81-82. However, none of them testified that they-7-

reported the incidents to the defendants, except to the prison chaplain, Ron Roskom. When Mr. Brigden complained to the staff that he wa s being “bulldogged,” the defendant, Lt. Wayne Morey, offered to move him to A-1-Pod for protection, but Brigden declined in writing, stating: “I Robert Brigden DOC# 207536, does [sic] acknowledge that protection was offered to me and I declined the offer to be moved to A-1-Pod to serve that purpose.” Id. at 49. The A-1-Pod was the disciplinary housing unit. There is evidence that Mr. Brigden either at that t ime, or generally contemporaneous to the events in question, expresse d complaints or concerns to Lt. Morey about being robbed by the inmates who wer e harassing him, and that Lt. Morey had instructed him to report any such inc ident. Id. at 88. In the early evening on June 12, 1994, another inmate, Stephen Edward Wood, entered Mr. Brigden’s cell (at OSR cell doors are unlocked during the day) and attempted to rob him of his wristwatch. When B rigden refused to hand over his watch, Wood stabbed him to death, inflicting mu ltiple wounds with a “shank.” Id. at 58, 88-89. The guard on duty in the “A” unit was Terry Duane N ew, one of the defendants in this case. His shift was 3:00 p.m. t o 11:00 p.m. Officer New testified at Wood’s trial that at about 6:15 p.m. h e noticed Mr. Brigden’s cell door-8-

standing open. New did not consider that to be nor mal, so he walked down and looked in on Brigden, who seemed fine. New then sat by Brigden’s door for a little while, but noticed nothing unusual, and Brig den did not say anything. However, New testified he had a strange feeling, so he went up on the roof to observe the activity in the yard. After a while he heard a scream, followed by three more screams. As he started off the roof, he saw a knife thrown out. Id. at 73-75. Mr. Brigden was dead. The knife was connec ted to Wood, who was ultimately tried and convicted of the murder. The plaintiff’s evidence that the defendants knew M r. Brigden was in jeopardy and wilfully ignored that fact, includes t estimony at Wood’s trial from inmates Robert Boulet, Michael Hendricks, John Cros son, James Murphy, and Teddy Graham. Mr. Boulet testified as follows: Q Oh, you weren’t there when the fences came down? A No. Q I’m sorry, you did say that. Were you aware, Mr. Boulet, that Reverend Brigden’s life was in danger, or did you have any idea? A I -- you know, over a period of time people talk, you know, and you hear different things. So I heard that, yo u know, he shouldn’t stay on the yard because something might happen to him. Q That was the talk? A Right. Q I mean, just talk amongst people at the mess hall and so forth? A Right. Q Okay. Were you aware of a hit list down there? A They had it on the -- going around the yard that t here was a certain number of people on there, that if they stayed there at Granite-9-

when they moved protective over to McAlester, that they was going to get killed, or whatever, because of their crimes

. Q That was just kind of the word around? A Yeah. Appellants’ App. at 77-78. Mr. Hendricks testified as follows: Q Okay. Mr. Hendricks, before you heard these conve rsations that you testified about, before that, were you awa re in any way or did you have a sense that Reverend Brigden’s life w as in danger? A Yes. Q What gave you that opinion? A He’s told me quite a bit about it. Q Okay. A I’ve tried to talk to him and tried to get him to where he could get himself protection, but it didn’t do no good. So I went to the chapel there at the penitentiary and told the Chapl in, Ron Roscoe [sic], that I felt that this man’s life was really in danger -- Q And this was -- A -- and could he help in any way, maybe talk to the guy and maybe get him, you know, to change his mind. Ron Roscoe [sic] says, “I don’t want to be involvedin it.” Q And that’s the chaplin [sic]? A Yeah. Q And we are talking about a period of time before t his incident? A Before the killing, yes. Id. at 79. He also testified that he knew Brigden “wa s getting harassed by the people that killed him,” id. at 80, but was unable to state whether any of this information was brought to the “attention of the pe nitentiary people.” Id. Mr. Murphy testified that inmate David Chatham told him that Chatham and a couple of others would go to Brigden’s cell frequ ently “and take something-10-

from him just to be -- having something to do just for the fun of it and laugh about it.” Id. at 81. He then testified as follows:

Mr. Murphy, did you believe back last year that Rev erend Brigden’s life was in danger from all sorts of inmates; did you believe that? Q Yeah. Q Have you ever heard that there was some kind of a hit list out there in the yard? A Everyone has heard of that. Q Yeah. Did you ever hear who’s on it? A Yeah, several people. Q Okay. Do you think the prison officials know about that? A Yeah. They just said it was a joke, just like eve ryone else thought it was. Q Okay. Well, you probably knew Tim Clark then, did n’t you? A Yeah. MR. DEAVER: Your Honor, we would object to the rel evance of -- THE COURT: Sustained. Q (By Mr. Jones) Did you ever watch the warden’s TV show? A Yes. Q Do you remember when he announced that the PC fenc e was coming down and you all be good to him? A Yeah. Q Did you see that one? A Yeah. Q Did you know Terry New, the corrections officer, v ery well? A I knew him, I mean, just like I know a lot of them there. Q Do you think Mr. New was aware that Mr. Brigden wa s in danger? MR. DEAVER: Object, Your Honor, calls for speculat ion. THE COURT: Sustained. Appellants’ App. at 83-84. Mr. Crosson testified as follows:-11-

Q Did you do anything -- you said you were perfectlyaware that Reverend Brigden’s life was in danger. Did you do anything maybe to tell the prison officials about that? A The prison officials already knew it. Q They did? A Yes, sir. They said we had a choice, we could stay there, or we could go to OSP. OSP is not a choice. You’re m ade to go to OSP. Q Bad place, isn’t it? A Yes, sir. Q 23-hour a day lockdown? A Yes, sir. Q Okay. They knew his life was in danger, and they gave him a choice, and he chose to stay at Granite; is that ab out it? A Yes, sir. Q Okay. Have you ever heard of a hit list around th e yard? A Yes, sir. Q Do you think it existed? A Yes, sir, it does. It still does. Q And there would be some names on it about who the various people in the population were they want to hit? A Right. Q Do you think the prison officials know about that? A Yes, sir. Q Do you think they ever tried to get a copy of the list? A I can’t answer that, sir. Q Did you ever watch the warden’s TV show? A Yes, sir. Q Did it make you uncomfortable being in A Unit whenthe show came on that just informed everybody the fences are down, that you be good to those guys; did that make you uncomforta ble? Kind of like advertising it. A For me it didn’t because I was tired of living any way. That’s the reason I stayed, that was my choice. Q Oh, okay. But for some it probably worried them? A I’m sure. Id. at 85-87.-12-

Teddy Graham described how inmate Wood entered Brig den’s cell on June 12, 1994, demanding Brigden’s watch, and was told b y Brigden that “Lieutenant Moory [sic] had given him a direct order to tell anyone who tried to rob him, that he would come to Lieutenant Moory [sic] and give hi m their name.” Appellants’ App. at 88. The plaintiff also introduced the trial testimony o f Dr. Philip J. Murphy, to the effect that Stephen Wood was a schizophrenic wh o committed murders previously in part because he had a rage against ch ild molesters. Id. at 93. Finally, the plaintiff established that after the p rotective custody fence was removed there was no restriction on inmates in the general population going to the unit where Brigden was housed, and that inmates cou ld go from one cell to the other. Id. at 72.

DISCUSSION
I. We review de novo the district court’s grant of sum mary judgment for failing to establish a cognizable Eighth Amendment claim. Applying the same standards used by the district court, we must affir m 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-13-

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In short, drawing all reasonable inferences in favo r of the plaintiff, we must affirm if it would be improper to submit the case t o a jury on this record. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986); Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). “‘[P]rison officials have a duty . . . to protect p risoners from violence at the hands of other prisoners.’” Farmer v. Brennan , 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship , 842 F.2d 556, 558 (1st Cir. 1988)); see Wilson v. Seiter , 501 U.S. 294, 303 (1991). However, every injury inflicted by one inmate on another does not constit ute a violation of the Eighth Amendment prohibition of cruel and unusual punishme nt. Farmer , 511 U.S. at
834.
Farmer , consistent with earlier cases, held that “[a] pri son official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer , 511 U.S. at 828. The Court stated: [A] prison official cannot be found liable under th e Eighth Amendment for denying an inmate humane conditions o f confinement unless the official knows of and disreg ards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the i nference. Id. at 837.4 “The civil law generally calls a person reckless who acts or (if the person has a

duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Farmer, 511 U.S. at 836 (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts , § 34, at 213-14 (5th ed. 1984) and Restatement (Second) of Torts § 500 (1965)). -14- This subjective standard requires a culpable state of mind on the part of the official. See Wilson , 501 U.S. at 301-03. It is not satisfied by negli gence (which, by definition, is an unreasonable act or omission), or even gross negligence, or recklessness as defined by civil law. 4 Farmer , 511 U.S. at 835-37 & n.4; Barrie v. Grand County , 119 F.3d 862, 869 (10th Cir. 1997) (citing Berry v. City of Muskogee , 900 F.2d 1489, 1495-96 (10th Cir. 1990)). It req uires a level of recklessness tantamount to criminal recklessness, i nclusive of a subjective mens

rea . Farmer , 511 U.S. at 836, 839-40. Furthermore, the delibe rate indifference test also requires that in order for a prison offic ial to be liable for a § 1983 violation the official must have been personally an d directly responsible for the occurrence of the alleged Eighth Amendment violatio n. Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir. 1996); Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996). Applying these exacting standards, we agree with th e district court’s careful analysis, with the exception of Chaplain Ro skom. Thus, with that one exception, we agree with the district court that th e testimony offered by inmates Boulet, Hendricks, Crosson, Murphy and Graham does not implicate any5 We reject at the outset the contention that centralizing protective custody at OSP

was punitive or “no choice at all” or in any other way violated the constitutional rights of Mr. Brigden or any other inmate. Inmates have no constitutional right to placement in a particular prison facility. SeeOlim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt v. Helms , 459 U.S. 460, 468 (1983) (“[T]he transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”); Meachum v. Fano , 427 U.S. 215, 224-25 (1976). -15- defendant. The testimony is general, conclusory, a nd speculative, and it would be impermissible to allow a jury to speculate on the d efendants’ level of actual knowledge and their state of mind based on such tes timony. Warden Cowley certainly knew that OSR no longer had a protective custody section and that Mr. Brigden had declined p rotective custody at OSP. 5 That the warden chose the medium of a prison-wide t elevision announcement to address the subject of fence removal at the previou sly segregated housing unit at OSR hardly shows a culpable state of mind toward Br igden. Quite the opposite. The fence removal would obviously be common knowled ge, especially to inmates who would have free access to the area. The warden ’s message recognized the obvious and was a cautionary warning to all inmates about their behavior. No facts at all establish that Warden Cowley knew Mr. Brigden was going to be attacked and ignored the situation. The only thing the plaintiff can point to is that Brigden was attacked in 1992 and had been in protec tive custody because convicted child molesters may be in danger in a gen eral prison population.6As indicated previously, we reject the argument that the offer of protective

custody in the disciplinary section at OSR—the only such housing available at OSR after Brigden’s refusal of transfer to OSP—was somehow punitive or “no choice.” In addition to the authorities cited in supranote 5, see Sandin v. Conner, 515 U.S. 472, 485-87 (1995). The confinement offered was neither for the purposes of punishment, nor, under the circumstances, atypical. -16- On this point, Brigden’s own actions in twice refus ing the offer of protective custody become relevant as to the state of mind of all the defendants and as to their culpability. First, while it may b e argued that prison officials have superior knowledge about dangers posed by the priso n environment, and about particularly dangerous inmates, no one could have h ad a more intimate interest in assessing threats to Brigden’s safety than Brigden himself. One cannot be in a prison for almost two years, even though segregated , without absorbing knowledge of the culture of the place, beginning wi th the certain knowledge of his 1992 attack by other inmates and why he was pla ced in protective custody at the outset. If Brigden did not feel sufficiently t hreatened to choose protective custody at OSP, it is hard to see why prison offici als were not entitled to take this into account in their own risk assessment. Then, after experiencing problems and complaining a bout them, Brigden once again was offered and refused protective custo dy—this time in writing. 6 Once again, it is hard to see why Brigden’s own vie w of his safety would not at least be one factor to consider in evaluating wheth er or not prison officials were-17-

subjectively criminally reckless in perceiving an u nreasonable risk to Brigden, in actually drawing the inference, and in failing to a ct. See Knight v. Gill , 999 F.2d 1020, 1022 (6th Cir. 1993) (inmate’s refusal to be placed in temporary protective custody is a factor to be considered in determining prison official’s state of mind).Looked at another way, a prison official is not del iberately indifferent if he knows of a risk to an inmate and takes reasonable s teps to abate the risk. Farmer , 511 U.S. at 844-45. Prison officials took reasonab le steps to protect Brigden on two occasions, and he turned them down both times. For all these reasons, there is no jury case agains t Warden Cowley, nor against Lt. Morey or Officer New. At most, OfficerNew was negligent in going up on the roof. But we decline even that character ization, as well as plaintiff’s argument, that Brigden’s cell door should have been locked. Brigden was in the general population, had refused a unit where the do ors are locked, and, according to a letter in the prison files, enjoyed going to t he library for the first time. Brigden was not entitled to a personal guard as he moved about the prison (where he would be as exposed to assault as when in his ce ll), or to otherwise generally dictate the terms of his incarceration. Absent kno wledge of any specific threat, Officer New’s general uneasiness hardly translates into a culpable indifference toward Brigden’s safety.-18-

Our only disagreement with the district court’s ana lysis concerns Chaplain Ron Roskom. The record (which we must accept) show s he was told specifically that Brigden was in serious danger and chose to ign ore the warning, saying he did not want to get involved. The district court interpreted the warning to relate only to persuading Brigden to transfer to OSP. We respe ctfully disagree, at least at this point. Drawing inferences favorable to the no nmoving party, we conclude that on the record as it now stands, there is a gen uine issue of fact whether or not Chaplain Roskom was deliberately indifferent to a s erious risk to Brigden. There is much that the record does not tell us, how ever. For instance, we are unable to ascertain Chaplain Roskom’s status as a state actor, or his duty or ability to control or affect circumstances relating to the safety of an inmate. It could be that as the record is further developed on remand, summary judgment may again be appropriate for consideration. But, a s the record now stands, we must reverse the summary judgment entered in favor of Roskom.

II. The district court cut off discovery in this case s imultaneously with its grant of summary judgment in defendants’ favor. Th e plaintiff argues persuasively that in doing so the district court ab used its discretion. Plaintiff contends that the district court erroneously stated that plaintiff filed no Fed. R.-19-

Civ. P. 56(f) affidavit seeking further discovery i n response to the defendants’ motion for summary judgment. Appellants’ App. at 1 25. In fact, plaintiff did file a 56(f) affidavit, albeit in response to defendants ’ motion for protective order. Appellants’ App. at 54-55. Plaintiff also contends that government counsel first resisted, then were slow in responding to, timely d iscovery requests, then falsely represented to the court that plaintiff’s motion to compel was moot because everything requested had been provided. Plaintiff promptly filed a pleading objecting to the mootness contention, but the distr ict court granted judgment without ever mentioning or ruling on the objection. Frankly, we are sympathetic to the plaintiff’s gene ral theme that discovery proceedings here were less than ideal. But the sta ndard governing our review of the court’s denial of further discovery is abuse of discretion. Burks v. Oklahoma Publ’g Co. , 81 F.3d 975, 981 (10th Cir.), cert. denied , 117 S. Ct. 302 (1996); Motley v. Marathon Oil Co. , 71 F.3d 1547, 1550 (10th Cir. 1995), cert. denied , 116 S. Ct. 1678 (1996). And, our search of this en tire record leaves us convinced that there is insufficient showing of the existence of discoverable evidence to establish error on the part of the district court. Clearly, the plaintiff hopes and7For instance, in the 56(f) affidavit attached to the Plaintiffs’ Response to Motion

for Protective Order, counsel referred to letters and other information, but is general and conclusory as to the information alleged therein, and nothing is attached to the affidavit. Also, in denying that they had sufficient access to materials admittedly shown them by the government, counsel acknowledge at least someaccess, yet identify nothing on appeal, or in a motion to the district court to reconsider its ruling, which would materially change the posture of the case. -20- believes that further discovery will turn something up. It takes some showing greater than that, however, to prevail at this poin t. 7

CONCLUSION For the reasons stated, the judgment of the distric t court is AFFIRMED, except as to the defendant RON ROSKOM. That judgme nt is REVERSED and the case is REMANDED for further proceedings.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge