* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JOHN BASTIAN,

Plaintiff-Appellant,

v. UNITED STATES BUREAU OF PRISONS; WILLIE MACK; RUFUS WILLIAMS, Correction Officers,

Defendants-Appellees. No. 99-3216 (D.C. No. 95-3535-MLB) (D. Kan.)

ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff John Bastian appeals from an order of the district court granting defendants’ motion for summary judgment in this cas e brought pursuant to the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971) . We affirm. P laintiff alleged that the individual defendants, employees of the United States Bureau of Prisons, denied him his Eighth Amendment right to be free f rom cruel and unusual punishment by assaulting, robbing , and attempting to murder him while he was handcuffed. He alleged that defendants further subjected him to cruel and unusual punishment by denying him foodand water for six and a half hours and by refusing to permit him to see an “outside” doctor after the assault. D efendants moved for summary judgment on all of plaintiff’s claims. The district court granted the motion in part and denie d it in part holding that defendants were not entitled to qualified immunity on plainti ff’s claims of excessive force and denial of medical attention. D efendants filed another motion for summary judgment with extensive documentation. Plaintiff then had a total of twenty-three days to respond to defendants’ motion. See D. Kan. R. 7.1(b) (providing that “[a] party shall have twenty days to respond to a motion to dismiss or for summary judgment”); Fed. R. Civ. P. 6(e) (al lowing three additional days for mailing) . Plaintiff filed a response almost a month late. The district court1 Rule 7.4 provides that if the respondent does not f ile a response to a summary judgment motion within the time specified w ithin Rule 7.1(b), the court may consider the motion to be uncontested and grantthe motion without further notice. The failure to file a response is a waiverof the right to later file a response, except upon a showing of excusable neglec t.

2 Although plaintiff is proceeding pro se, he must comply with local court rules. See Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992). -3- struck the response as untimely pursuant to D. Kan. R. 7.4. 1 The court granted defendants ’ motion for summary judgment on the basis that pla intiff had failed to
overcome defendants ’ defense of qualified immunity. On appeal, plaintiff argues that the district courterred in its ruling. Plaintiff also contends that the district court vio lated his due process rights because the magistrate judge had set his case for t rial, but the district court judge granted summary judgment instead of conducting a tr ial. “The district court is entitled to considerable def erence in its interpretation and application of its own rules of practice and procedure.” 2 Mitchell v. Maynard , 80 F.3d 1433, 1447 (10th Cir. 1996); see also Hernandez v. George , 793 F.2d 264, 266 (10th Cir. 1986) (reviewing distr ict court’s interpretation and application of local rules for abuse of discretion) . Plaintiff’s only excuse for not filing a timely res ponse was an allegation of conspiracy between prison officials and defendants’ counsel. The only documentation he submitted to support that allegati on was an incident report-4-

which resulted in disciplinary action against him. That incident occurred after the time by which plaintiff was to have filed his respo nse. The court did not abuse its discretion in striking plaintiff’s response. In reviewing the entry of summary judgment on the m erits, we examine the case “de novo, drawing all reasonable inferences in fav or of the nonmovants.” Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994). The moving pa rty must show there is no genuine issue as to any material f act and it is entitled to judgment as a matter of law. See id. The nonmovant must establish, at a minimum, an inference of the presence of each eleme nt essential to the case. See id. Federal Rule of Civil Procedure 56(e) authorizes th e entry of summary judgment “if appropriate,” when the nonmoving party fails to respond to a properly supported summary judgment motion. Due to plaintiff’s failure to file a timely respons e, the district court deemed defendants’ motion uncontested. The facts containe d in defendants’ motion established that no assault occurred nor did any de nial of medical attention occur. Defendants’ documentation is extensive. Summary ju dgment was properly granted. Even if we were to consider plaintiff’s r esponse to defendants’ motion, his unsupported allegations are insufficient to cre ate any genuine issue of material fact which would preclude the entry of summary judg ment.-5-

Plaintiff argues that the district court denied him due process by disposing of the case on summary judgment although the magistrate judge was preparing the case for trial. Once defendants moved for summary judgment, the district court properly ruled on that motion prior to conducting atrial. Once summary judgment had been granted, no trial was necessary. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Defendants’ motion for leave to file an appendix to their brief is DENIED as duplicative of the material contained in the record on appeal. Plaintiff’s motion to file a supplemental brief is GRANTED.

Entered for the Court

John C. Porfilio Circuit Judge