UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERNELL HAILES, 

 

 Plaintiff, 

 Civil Action 2:12-cv-00687 

 v. Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

 

MR. COLLIER, et al.

 

 Defendants. 

OPINION AND ORDER 

 Plaintiff, Ernell Hailes, an inmate in the custody of the Chillicothe Correctional 

Institution (“CCI”), who is proceeding without the assistance of counsel, filed this civil rights 

action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants, Officer Elam (“Elam”) 

and Lieutenant Collier (“Collier”) retaliated against him for exercising his religion. This matter 

is before the Court for consideration of Plaintiff’s Motion for Leave for Further Discovery (ECF 

No. 37), Defendants’ Memorandum in Opposition (ECF No. 38), and Plaintiff’s Reply (ECF No. 

39). The Court construes Plaintiff’s Motion as a request for discovery under Federal Rule of 

Civil Procedure 56(d). For the reasons that follow, Plaintiff’s Motion is GRANTED. As a 

result, Defendants’ Motion for Summary Judgment (ECF No. 23) is DENIED WITHOUT 

PREJUDICE to re-filing when the limited discovery described in this Order has been 

completed. 

I. 

 Plaintiff brings this action under 42 U.S.C. § 1983. He contends that Defendants violated 

his rights under the First Amendment of the United States Constitution when they took an 

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adverse action against him for refusing to report to work on his Sabbath day. Plaintiff is a 

Seventh Day Adventist. According to Plaintiff, his religion dictates that he refrain from 

working on the Sabbath, which lasts from sundown on Friday until sundown on Saturday. 

(Mot.for Summ. J. 8, ECF No. 23-1). As such, on March 3, 2011, Plaintiff submitted a Request 

for Religious Accommodation (“Accommodation”), requesting a work schedule that would 

allow him to observe the Sabbath. CCI granted the Accommodation on March 7, 2011. CCI 

assigned Plaintiff to a position as a Yard Worker, which generally requires inmates to work 

Monday through Friday. 

 On Saturday, January 14, 2012, at around 2:00 a.m., Defendant Elam woke Plaintiff and 

ordered him to report to work due to a snow event. Plaintiff asserts in his Complaint that he 

refused to report to work because it was the Sabbath. Further, Plaintiff asserts that he showed his 

Accommodation paperwork to Defendant Elam, and later to Defendant Collier. Defendants 

maintain that they were unaware of Plaintiff’s Accommodation. Further, in affidavits, 

Defendants deny that Plaintiff ever provided his Accommodation paperwork. 

Because he refused to report to work, Defendant Elam issued a conduct report to Plaintiff 

for which Plaintiff was put in segregation. On January 19, 2012, Plaintiff appeared before a 

Hearing Officer for adjudication of the Conduct Report. The Hearing Officer found Plaintiff not 

guilty of the conduct violation. (Mot. for Summ. J. Ex. C, ECF No. 23-3). 

Defendants filed a Motion for Summary Judgment on July 22, 2013. (ECF No. 23.) In 

their Motion, Defendants maintain that Plaintiff refused to show his Accommodation paperwork. 

In his Supplemental Brief in Reply, Plaintiff again asserts that he showed Defendants the 

Accommodation paperwork. Plaintiff, however, but does not make that statement in an affidavit 

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or sworn declaration under the penalty of perjury as he must for the Court to consider it under 

Federal Rule of Civil Procedure 56. (See Pl.’s Supp. Brief 3, ECF No. 31.) 

 Plaintiff filed the subject Motion on November 13, 2013. In the Motion, Plaintiff notes 

that Defendants’ “main argument” in their Motion for Summary Judgment involves Plaintiff’s 

refusal to show Elam and Collier his Accommodation paperwork. (Pl.’s Mot. for Disc. 1, ECF 

No. 37.) In order to respond to this contention, Plaintiff asks the Court to order Defendants to 

turn over the misconduct summary judgment dismissal document, which he asserts will “state 

that the plaintiff did meet with the officers, the reason for the meeting, and the results of the 

meeting, including [the] hearing sergeant’s reason for dismissal.” (Id.) In their Memorandum in 

Opposition, Defendants assert that they have already provided such document as an exhibit in 

their Pending Motion for Summary Judgment. (Defs.’ Mem. in Opp. 10, ECF No. 38, citing 

Mot. for Summ. J. Ex. C, ECF No. 23-3.) The Court is unable to discern whether the document 

provided as Exhibit C in Defendant’s Motion for Summary Judgment is the document that 

Plaintiff is requesting in his Motion. (See Mot for Summ. J. Ex. C, ECF No. 23-3.) The 

document is titled “Hearing Officer’s Report” and contains only minimal information about the 

Hearing Officer’s not-guilty finding. 

II. 

Federal Rule of Civil Procedure 56(d) provides as follows: 

If a nonmovant shows by affidavit or declaration1

 that, for specified reasons, it 

cannot present facts essential to justify its opposition, the court may: 

 

1

 Construing Plaintiff’s pro se filing liberally, as it must, the Court finds that Plaintiff’s Motion 

for Discovery sufficiently sets out the need for discovery, even though Plaintiff has not presented 

the request by formal affidavit or declaration. See Spotts v. U.S., 429 F.3d 248, 250 (6th Cir. 

2005) (“Because [plaintiff] is proceeding pro se, we construe [his or] her filings liberally.”) 

(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (concluding that allegations in a pro se

complaint must be held to less stringent standards than those of “formal pleadings drafted by 

lawyers”). 

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(1) defer considering the motion or deny it; 

(2) allow time to obtain affidavits or declarations or to take discovery; or 

(3) issue any other appropriate order. 

Fed. R. Civ. P. 56(d). The party requesting a delay in disposition of a summary judgment 

motion to obtain additional evidence “must ‘indicate to the district court [the party's] need for 

discovery, what material facts it hopes to uncover, and why it has not previously discovered the 

information.’” Enyart v. Karnes, No. 2:09-CV-687, 2011 WL 1070870, at *1 (S.D. Ohio Mar. 

21, 2011) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000)). 

III. 

The Court concludes that Plaintiff is entitled to the discovery prior to a ruling on 

Defendants’ Motion for Summary Judgment. In his Motion, Plaintiff specifically describes the 

document he is requesting. Plaintiff further asserts that he is requesting the document to counter 

Defendants’ contention that he did not provide his Accommodation paperwork. Finally, though 

Plaintiff did not make his request under Rule 56(d) until November 13, 2013, the Court 

concludes that his request is not dilatory. Although Plaintiff has been able to conduct some 

general discovery, his current request is in direct response to Defendants’ assertions in their 

Motion for Summary Judgment which did not become ripe for review until September 23, 2013. 

Even more persuasive, the discovery Plaintiff requests could impact the Court’s ruling on 

Defendants’ Motion for Summary Judgment. In determining whether a district court abuses its 

discretion in denying a motion under Rule 56(d), the United States Court of Appeals for the 

Sixth Circuit considers, among other factors, “whether the desired discovery would have 

changed the ruling below.” CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th. Cir. 2008). Here, the 

document Plaintiff requests has the potential to include competent summary judgment evidence 

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to corroborate his assertion that he provided the Accommodation paperwork to Defendants. 

Since Defendants contest this fact in their Motion for Summary Judgment, further discovery into 

this issue could have an impact on the Court’s ruling. 

IV. 

Accordingly, Plaintiff’s Motion for Discovery under Rule 56(d) is GRANTED. (ECF 

No. 37.) Plaintiff is DIRECTED to inform the Court WITHIN FOURTEEN (14) DAYS OF 

THE DATE OF THIS ORDER whether the document Defendants provided as Exhibit C in 

their Motion for Summary Judgment is the document to which he is referring in his Motion. For 

ease of reference, the Court has attached the document to this Order as Exhibit 1. If not, Plaintiff 

is DIRECTED to provide Defendants with specific information to enable them to produce the 

appropriate document(s). If Defendants maintain that such a document does not exist, they must 

support this showing with sworn affidavits. Defendant’s Motion for Summary Judgment (ECF 

No. 23) is therefore DENIED WITHOUT PREJUDICE to re-filing after the limited discovery 

described in this Order has been completed. 

IT IS SO ORDERED. 

Date: January 27, 2014 /s/ Elizabeth Preston Deavers 

 Elizabeth Preston Deavers 

 United States Magistrate Judge

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