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

### DEC 30 1997 

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

RICHARD L. TAYLOR, an individual,

Plaintiff-AppellantCross-Appellee,

v. RAYMOND E. HAM, individually and in his official capacity as Chief of Police of the Ponca City Police Department, Defendant-AppelleeCross-Appellant, CITY OF PONCA CITY, Oklahoma, ex rel. Ponca City Police Department,

Defendant-Appellee, and EVERETTE VAN HOESEN, individually, and in his official capacity as Assistant Police Chief; BOB STIEBER, individually and in his official capacity as President of Fraternal Order of Police, Lodge No. 103; DON RAY, individuallyand in his official capacity as VicePresident of Fraternal Order of Police, Lodge No. 103 and Grievance Chairperson; FRATERNAL ORDER 96-6245 & 96-6258 (D.C. No. 95-CIV-1650-M/L) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the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.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. -2- OF POLICE, Lodge No. 103, an unincorporated association of Ponca City Police Officers; GARY MARTIN,

Defendants.

ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. Plaintiff Richard Taylor was discharged from his po sition as an officer with the Ponca City, Oklahoma, police department after b eing involved in a one-car accident in which he was the driver and the passeng er was killed. In appeal No. 96-6245, plaintiff appeals the district court’s entry of summary judgment in favor-3-

of Chief Raymond Ham and the City of Ponca City on his claims that he was deprived of both property and liberty interests without due process in connection with his discharge. Plaintiff also appeals the dis trict court’s denial of his motion under Fed. R. Civ. P. 56(f) for an extension of tim e to take further discovery before responding to defendants’ summary judgment m otion. In appeal No. 96-6258, Chief Ham cross-appeals the district court’s May 22, 1996 ruling that he submit to a deposition. Chief Ham objects to the district court having ordered him to submit to disc overy before ruling on his qualified immunity defense. In its final order of June 10, 1996, the district court determined that Chief Ham was qualifiedly immune, a nd entered judgment against plaintiff on all claims. Although the district cou rt’s final order obviated the need for Chief Ham to submit to a deposition, he filed t he present protective cross-appeal in the event we reverse the district c ourt’s ruling on the merits of plaintiff’s claims. Chief Ham acknowledges that hi s cross-appeal will be moot if we affirm the district court’s final order of June 10, 1996. Appeal No. 96-6245 We review the district court’s ruling on plaintiff’ s Rule 56(f) motion under an abuse of discretion standard. See International Surplus Lines Ins. Co. v. Wyoming Coal Ref. Sys. Inc. , 52 F.3d 901, 904 (10th Cir. 1995). “When a party files an affidavit under Rule 56(f) for additional discovery time, . . . [t]he trial-4-

court may deny the affiant’s request for additional time, deny the motion for summary judgment, order a continuance for additiona l discovery or make such other order as is just.” Jensen v. Redevelopment A gency of Sandy City , 998 F.2d 1550, 1553-54 (10th Cir. 1993) (citations and quotation omitted). A party seeking time to conduct additional discovery under Rule 56(f) must provide an affidavit identifying what facts are notavailable and what steps the party has taken to obtain those facts. See Committee for the First Amend. v. Campbell , 962 F.2d 1517, 1522 (10th Cir. 1992). “Rule 56(f ) may not be invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable . . . .” Pasternak v. Lear Petroleum Exploration, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). “Furthermore , if the party filing the Rule 56(f) affidavit has been dilatory, or the information sought is irrelevant to the summary judgment motion or merelycumulative, no extension will be granted.” Jensen , 998 F.2d at 1554. Here, plaintiff did not file an affidavit as such. Rather, his counsel filed a motion and brief, to which he attached his affidavi t stating that all factual averments contained in the motion and brief were tr ue to the best of his knowledge. Even if construed as the required affid avit, these documents did not meet the requirements of Rule 56(f). They neither set forth the specific facts plaintiff needed to discover, nor explained how suc h facts would have been useful-5-

to oppose defendants’ motion. See Jensen , 998 F.2d at 1554-55. Further, the record reflects that plaintiff was dilatory in purs uing discovery before filing the Rule 56(f) motion. Under the circumstances, the di strict court did not abuse its discretion in denying plaintiff’s Rule 56(f) motion

. We turn then, to the district court’s grant of summ ary judgment to Chief Ham and the City of Ponca City on plaintiff’s due p rocess claims. We review the grant of summary judgment de novo, applying the sam e standards as the district court under Rule 56(c). See Wolf v. Prudential Ins. Co. of Am. , 50 F.3d 793, 796 (10th Cir. 1995). Plaintiff contended that the City and Chief Ham dep rived him of his property interest in employment without due process . Primarily, plaintiff attacked the pretermination process he was given, in part be cause it did not completely conform to the process outlined in the collective b argaining agreement between the City and the police union. Plaintiff also atta cked the post-termination process he was given, alleging that the City had refused to cooperate in the de novo arbitration hearing provided for by the collective bargaining agreement. The district court acknowledged that plaintiff had a pr operty interest in his employment, but concluded that he received all the process he was due under federal law. See, e.g. , Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532,-6-

545-57 (1985) (discussing the pre- and post-termination process due a tenured public employee under federal law). Plaintiff also contended that defendants deprived h im of his liberty interest by making public statements suggesting that he was guilty of the criminal offenses with which he had been charged, without gi ving him an appropriate name-clearing hearing. The district court conclude d that plaintiff failed to establish that defendants infringed his liberty int erests. Specifically, the district court determined that plaintiff failed to establish through admissible evidence either that defendants published information about plaintiff that was false and stigmatizing or that the alleged publication of suc h information foreclosed future employment opportunities. See, e.g. , Watson v. University of Utah Med. Ctr. , 75 F.3d 569, 579 (10th Cir. 1996) (setting forth eleme nts of claim for liberty deprivation). The district court further ruled that Chief Ham was qualifiedly immune from plaintiff’s claims, because plaintiff failed t o establish that Chief Ham’s actions violated any constitutional right. See, e. g. , Pueblo Neighborhood Health Ctrs., Inc. v. Losavio , 847 F.2d 642, 646 (10th Cir. 1988) (holding that, to overcome a qualified immunity defense, a plaintiff must “show both that the defendant’s alleged conduct violated the law and th at the law was clearly established when the alleged violation occurred”). Similarly, the court ruled that-7-

plaintiff failed to establish any liability on the part of the City, because he failed to show the deprivation of any constitutional right , much less a causal link between a constitutional deprivation and any customor policy of the City. See,
e.g. , Jenkins v. Woods , 81 F.3d 988, 993 (10th Cir. 1996) (“To establish municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation [of a federally protected right] alleged. ”) Based upon our review of the record, the parties’ b riefs, and the controlling law, we conclude that the district court properly g ranted summary judgment to defendants City of Ponca City and Chief Raymond Hamon plaintiff’s claims for deprivation of property and liberty interests witho ut due process. We, therefore, AFFIRM the judgment of the United States District C ourt for the Western District of Oklahoma for substantially the reasons set forthin its Order of June 10, 1996. Our affirmance of the district court’s final order moots Chief Ham’s protective cross-appeal in No. 96-6258, which is DISMISSED.

Entered for the Court

John C. Porfilio Circuit Judge