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, individually

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* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, United States District

Court for the District of Kansas, sitting by designation.

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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, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

Plaintiff Richard Taylor was discharged from his position as an officer with

the Ponca City, Oklahoma, police department after being involved in a one-car

accident in which he was the driver and the passenger was killed. In appeal No.

96-6245, plaintiff appeals the district court’s entry of summary judgment in favor
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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 district court’s denial of his motion

under Fed. R. Civ. P. 56(f) for an extension of time to take further discovery

before responding to defendants’ summary judgment motion.

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 discovery 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, and entered judgment against

plaintiff on all claims. Although the district court’s final order obviated the need

for Chief Ham to submit to a deposition, he filed the present protective

cross-appeal in the event we reverse the district court’s ruling on the merits of

plaintiff’s claims. Chief Ham acknowledges that his 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
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court may deny the affiant’s request for additional time, deny the motion for

summary judgment, order a continuance for additional discovery or make such

other order as is just.” Jensen v. Redevelopment Agency 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 not available 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 merely cumulative, 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 affidavit stating that all factual

averments contained in the motion and brief were true to the best of his

knowledge. Even if construed as the required affidavit, 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 such facts would have been useful
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to oppose defendants’ motion. See Jensen, 998 F.2d at 1554-55. Further, the

record reflects that plaintiff was dilatory in pursuing discovery before filing the

Rule 56(f) motion. Under the circumstances, the district court did not abuse its

discretion in denying plaintiff’s Rule 56(f) motion.

We turn then, to the district court’s grant of summary judgment to Chief

Ham and the City of Ponca City on plaintiff’s due process claims. We review the

grant of summary judgment de novo, applying the same 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 deprived him of his

property interest in employment without due process. Primarily, plaintiff attacked

the pretermination process he was given, in part because it did not completely

conform to the process outlined in the collective bargaining agreement between

the City and the police union. Plaintiff also attacked 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 property 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,
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545-57 (1985) (discussing the pre- and post-termination process due a tenured

public employee under federal law).

Plaintiff also contended that defendants deprived him of his liberty interest

by making public statements suggesting that he was guilty of the criminal

offenses with which he had been charged, without giving him an appropriate

name-clearing hearing. The district court concluded that plaintiff failed to

establish that defendants infringed his liberty interests. 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 such 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 elements of claim for liberty

deprivation).

The district court further ruled that Chief Ham was qualifiedly immune

from plaintiff’s claims, because plaintiff failed to 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 that the law was clearly

established when the alleged violation occurred”). Similarly, the court ruled that
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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 custom or 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’ briefs, and the controlling

law, we conclude that the district court properly granted summary judgment to

defendants City of Ponca City and Chief Raymond Ham on plaintiff’s claims for

deprivation of property and liberty interests without due process. We, therefore,

AFFIRM the judgment of the United States District Court for the Western District

of Oklahoma for substantially the reasons set forth in 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