*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-20086

_____________________

PHILLIP D BENKERT

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.,

Defendants

TEXAS DEPARTMENT OF CRIMINAL JUSTICE 

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

Docket No. H-98-CV-4122

_________________________________________________________________

August 22, 2000

Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:*

Plaintiff-Appellant Phillip Benkert, proceeding pro se,

appeals the district court’s entry of summary judgment in favor

of his employer, Defendant-Appellee Texas Department of Criminal
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Justice (“TDCJ”). For the following reasons, we vacate the

district court’s grant of summary judgment. 

I.

Benkert is a Lieutenant of Correctional Officers at TDCJ. 

Benkert filed a report with TDCJ in June 1996, alleging that one

of his supervisors had violated Title VII. After that report was

filed, Benkert alleges that TDCJ retaliated against him. 

Specifically, Benkert claims that his job duties were decreased,

and that he was given unfair evaluations, denied leave time, and

denied a promotion for which he had applied. After filing a

complaint with the Equal Employment Opportunity Commission,

Benkert received a right to sue letter and subsequently filed

suit against TDCJ in federal district court on December 10, 1998.

TDCJ filed motions for summary judgment in July and

September of 1999, and both motions were denied. Then, in

November 1999, TDCJ filed a “Motion to Reconsider Denial of

Motion for Summary Judgment and First Supplemental Motion for

Summary Judgment Attaching Additional Evidence.” This motion

included affidavits and other documentary evidence. Benkert

replied to this motion, but his reply did not include any

rebuttal affidavits or other evidence, and instead merely rested

on the pleadings. On November 24, 1999, TDCJ filed a

“Supplemental Motion for Summary Judgment with Additional

Attachments.” This motion was also accompanied by affidavits and
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documentary evidence. Benkert never filed a reply to this

motion. 

According to Benkert, around this time relations between

Benkert and his attorney, Woodrow Epperson, were rapidly

deteriorating. Having failed to secure a written contract from

Epperson, Benkert was locked in a dispute with Epperson over fees

and strategy. On December 16, 1999, without ever filing a reply

to TDCJ’s November 24 motion for summary judgment, Epperson moved

to withdraw as Benkert’s attorney of record. The next day,

Benkert, acting pro se, filed a “Motion for Continuance to

Substitute Legal Counsel.” The district court, without ruling on

either Epperson’s motion to withdraw or Benkert’s motion for a

continuance, granted TDCJ’s supplemental motion for summary

judgment on January 4, 2000. Benkert timely appeals.

II.

We will liberally construe a pro se appellant’s arguments on

appeal. See Chriceol v. Phillips, 169 F.3d 313, 315 n.2 (5th

Cir. 1999). Thus, we read Benkert’s brief to argue that the

district court erred in failing to consider his motion for a

continuance prior to considering, and granting, TDCJ’s

supplemental motion for summary judgment. We agree.

It does not appear that the district court ever ruled on

Benkert’s motion for a continuance. We believe that Benkert’s

motion raised issues that warranted further inquiry by the
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district court. Specifically, the district court should have

inquired into the problems between Benkert and Epperson;

Benkert’s ability to retain new counsel; and Benkert’s ability to

respond to the motion for summary judgment. If the allegations

raised by Benkert in his motion are true, it may have been

appropriate to delay ruling on TDCJ’s motion for summary

judgment. 

On appeal, TDCJ argues that Benkert has waived any right to

contest the district court’s decision to rule on the summary

judgment motion. TDCJ contends that Benkert’s motion never

properly asked for an enlargement of time in which to respond to

the motion for summary judgment, but merely requested that the

district court postpone the trial. Benkert’s motion belies that

argument. Contrary to TDCJ’s argument, the motion did not

overtly request a trial continuance. Indeed, the motion’s only

allusions to the trial are a reference to the trial date and to

Benkert’s belief that Epperson was not prepared for trial. Taken

as a whole, Benkert’s motion is fairly construed as a request

that the court delay any final decision in the case. 

When a party opposing summary judgment is not presently able

to present adequate rebuttal evidence under Rule 56(e), the court

may “refuse the application for summary judgment or may order a

continuance to permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make such other order as

is just.” Fed. R. Civ. P. 56(f). The Supreme Court directs that
 

1 A party submitting a Rule 56(f) motion is expected to submit

an affidavit in support of the motion and some courts have found

that failure to do so is grounds for refusing to grant a

continuance. See, Gurary v. Winehouse, 190 F.3d 37, 43-44 (2d

Cir. 1999). In this case, Benkert failed to submit a supporting

affidavit with his motion. This court, however, has observed

that “[w]hile a party’s failure to comply with Rule 56(f)[‘s

affidavit requirement] does not preclude consideration of the

motion, some equivalent statement, preferably in writing . . . is

expected.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.

1986) (footnote ommitted); accord Washington v. Allstate Ins.

Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Given Benkert’s pro se

status and the statements contained in the motion for a

continuance, we find that his failure to submit an affidavit with

his motion was not fatal.

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pleadings filed by a pro se litigant are to be held to “less

stringent standards than formal pleadings drafted by lawyers.” 

Haines v. Kerner, 404 U.S. 519, 520 (1972). Viewing Benkert’s

motion to the district court in a liberal light, it is properly

construed as a Rule 56(f) motion requesting that the district

court delay consideration of TDCJ’s motion for summary judgment

and allow Benkert additional time to file rebuttal evidence.1

Rule 56(f) motions “are generally favored, and should be

liberally granted.” Stearns Airport Equip. Co., Inc. v. FMC

Corp., 170 F.3d 518, 534 (5th Cir. 1999). Given the allegations

raised in Benkert’s motion for a continuance, we believe that the

district judge should have made further inquiry into the issues

raised in Benkert’s motion prior to ruling on TDCJ’s motion for

summary judgment. 

The allegations in Benkert’s motion for a continuance set

out a host of problems he had been having with his attorney. 
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Initially, we note that Epperson failed to file rebuttal evidence

to TDCJ’s first supplementary motion for summary judgment. The

Federal Rules of Civil Procedure make abundantly clear the

dangers facing a litigant who responds to a summary judgment

motion containing supplemental affidavits by merely resting on

his earlier pleadings, dangers of which Epperson should have been

well aware. See Fed. R. Civ. P. 56(e). Furthermore, Benkert’s

motion recognized that some sort of evidence needed to be

presented to rebut TDCJ’s summary judgment motions and it

suggested that such evidence was presently available, but that

Epperson had failed to present it to the court. According to

Benkert, Epperson allegedly advised Benkert that there was no

point in submitting any evidence in response to TDCJ’s motion

because it had already been denied and because it would alert

TDCJ to the nature of his evidence. Lastly, Epperson filed no

response to TDCJ’s November 24 supplemental summary judgment

motion, but stated in his December 16 motion to withdraw -

inaccurately, as best we can tell - that a response to TDCJ’s

summary judgment motion had been filed. 

Moreover, the record does not indicate, and TDCJ does not

argue, that Benkert’s motion was filed for any reason other than

to request that the court defer ruling on an outstanding summary

judgment motion so that a litigant suddenly abandoned by his

counsel might obtain substitute representation and properly reply

to the outstanding motion. It does not appear that Benkert had
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previously tried to delay these proceedings or acted in a

dilatory fashion. Nor is there any indication that Epperson’s

motion to withdraw and Benkert’s subsequent motion for a

continuance were motivated by some nefarious plan to foist added

delay and expense upon TDCJ. 

The allegations in Benkert’s motion outlining the conflicts

with his attorney, along with the lack of any history of delays

or dilatory tactics by Benkert, suggest to us that further

inquiry by the district court is warranted. As such, we vacate

the district court’s entry of summary judgement so that the

district judge may properly consider Benkert’s motion for a

continuance. We emphasize that we decide only that the district

judge should have made further inquiry about Benkert’s problems

with his counsel, his ability to retain new counsel and his

ability to respond (with or without counsel) to the summary

judgment motion. We do not, however, venture an opinion as to

what the outcome of further inquiry by the district court should

be. Nor do we preclude the entry of summary judgment at the

conclusion of that inquiry or at a later date.

III.

For the above stated reasons, we VACATE the district court’s

entry of summary judgment and remand for consideration of

Benkert’s motion for a continuance. Costs shall be borne by

TDCJ.
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