IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN PATRICK MOORE, 

 Plaintiff, 

 Civil Action 2:12-cv-609 

 vs. Judge Marbley 

 Magistrate Judge King 

BRENT CRUSE, et al., 

 Defendants. 

OPINION AND ORDER 

 Plaintiff John Patrick Moore, now an inmate at the Southern Ohio 

Correctional Facility, filed this civil rights action under 42 U.S.C. 

§ 1983 on July 10, 2012. Complaint, Doc. No. 5. The Complaint 

asserts claims under § 1983 for, inter alia, violations of the First 

and Eighth Amendments to the United States Constitution. 

Specifically, the Complaint alleges that defendants discriminated 

against plaintiff and assault plaintiff during a volleyball game at 

Chillicothe Correctional Institution (“CCI”) based on his religious 

beliefs and for wearing religious headgear. Id. at pp. 5-7. 

 Defendants filed a motion for summary judgment on March 14, 2013, 

Defendants Cruse, Pfeifer, Thornhill, and Walker’s Motion for Summary 

Judgment, Doc. No. 31. On March 26, 2013, plaintiff filed a motion 

titled Declaration of John Moore (“Plaintiff’s Motion”), Doc. No. 33, 

seeking additional time to complete discovery under Fed. R. Civ. P. 

56(d). Defendants have filed a response to Plaintiff’s Motion, 

Defendants’ Response, Doc. No. 36. Plaintiff has not filed a reply. 

This matter is now ripe for consideration. 

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Rule 56(d) of the Federal Rules of Civil Procedure establishes 

the proper procedure to be followed when a party concludes that 

additional discovery is necessary to respond to a motion for summary 

judgment: 

When Facts Are Unavailable to the Nonmovant. If a 

nonmovant shows by affidavit or declaration that, for 

specified reasons, it cannot present facts essential to 

justify its opposition, the court may: 

 (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 affidavit or declaration required by the 

rule must “indicate to the district court [the party’s] need for 

discovery, what material facts [the party] hopes to uncover, and why 

[the party] has not previously discovered the information.” Cacevic 

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

Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989)). A motion 

under Rule 56(d) may be properly denied where the requesting party 

“̔makes only general and conclusory statements [in the supporting 

affidavit or declaration] regarding the need for more discovery and 

does not show how an extension of time would have allowed information 

related to the truth or falsity of the [information sought] to be 

discovered,’” Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th 

Cir. 2004) (quoting Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 

(6th Cir. 1999)), or where the affidavit or declaration “lacks ‘any 

details’ or ‘specificity.’” Id. (quoting Emmons v. McLaughlin, 874 

F.2d 351, 357 (6th Cir. 1989)). The importance of complying with the 

specific requirements of Rule 56(d) cannot be over-emphasized. See 

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Cacevic, 226 F.3d at 488. Finally, whether or not to grant a request 

for additional discovery falls within the trial court’s discretion. 

Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009). 

In the case presently before the Court, plaintiff seeks 

additional discovery to (1) “review the rosters of Inmate name and 

numbers” of the individuals who participated in the volleyball league, 

(2) “review security footage of the incident,” and (3) have an 

“opportunity to interview each person who was on the volleyball 

league.” Plaintiff’s Motion, ¶¶ 4-5, 7. Plaintiff asserts that this 

discovery will permit him to obtain “written Affidavits and 

declarations from Inmates that were present [at the volleyball game],” 

“produce witness testimony that [he was assaulted,]” and “clearly show 

the facts in a light favorable to [his] claim.” Id. at ¶¶ 3-5. 

Additional time to complete discovery is necessary, plaintiff argues, 

because he did not have sufficient time to learn the identities of 

witnesses while incarcerated at CCI, “he has not had access to 

discovery,” and defendants “claim confidentiality” regarding the 

identities of the inmates in the volleyball league. Id. at ¶¶ 3, 6-7. 

Plaintiff’s arguments are without merit. 

Plaintiff has had more than four and a half months to conduct 

discovery in this case. See Order, Doc. No. 16, p. 1 (September 10, 

2012 order directing that “[d]iscovery may proceed and must be 

completed no later than January 31, 2013”). Nevertheless, it does not 

appear that plaintiff conducted, or even attempted to conduct, any 

discovery; defendants’ representation that plaintiff has not sought 

any discovery, see Defendants’ Response, pp. 1-3, is uncontroverted. 

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Plaintiff does represent that defendants “claim confidentiality” 

regarding the identities of inmates in the volleyball league. 

However, prior to filing Plaintiff’s Motion on March 26, 2013, no 

party had filed a motion to extend the discovery deadline, a motion to 

compel discovery, or any other discovery related motion. Plaintiff 

has simply not shown that he was diligent in pursuing the information 

that he now seeks. The Court also concludes that plaintiff’s 

declaration lacks the specificity required by Rule 56(d). 

Specifically, plaintiff’s conclusory declaration does not adequately 

articulate the material information that plaintiff hopes to learn, nor 

does it explain why that information is necessary to respond to the 

Motion for Summary Judgment, why he has not previously learned that 

information, and why the requested extension of the discovery 

completion date would permit him to learn that information. 

Plaintiff’s Motion, Doc. No. 33, is therefore DENIED. 

 Plaintiff may have fourteen (14) days to respond to the Motion 

for Summary Judgment, Doc. No. 31. If plaintiff fails to file a 

response to the Motion for Summary Judgment within fourteen days of 

this order, the affidavits or other papers submitted in support of the 

Motion for Summary Judgment will be accepted as true by the Court. 

See Fed. R. Civ. P. 56(c). 

September 10, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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