*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60312

Summary Calendar

 

EDDIE ROSS

Plaintiff-Appellant,

versus

MEREDITH A. PIERCE, Individually and in

his Official Capacity as Supervisor for 

Warren County, Mississippi Farmers Home 

Administration

Defendant-Appellee.

 

Appeal from the United States District Court

For the Southern District of Mississippi 

(5:93-CV-58BrN)

 

November 12, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Facts and Procedural History

Plaintiff-Appellant Eddie Ross filed this § 1981 action

against the United States of America; Mike Espy, Secretary of

Agriculture; the Farmers Home Administration (“FmHA”); and Meredith

A. Pierce, individually and in his official capacity as supervisor
2

of the Warren County Farmers Home Administration. Ross alleged

that those defendants unconstitutionally denied him an FmHA loan on

the basis of his race. On May 12, 1994, the district court granted

motions to dismiss the United States, Mike Espy and FmHA, but

denied the motion to dismiss Pierce because the former were

protected from suit by the doctrine of sovereign immunity while the

latter was not if his alleged acts were ultra vires. The district

court ordered discovery as to whether defendant Pierce was acting

ultra vires.

Some discovery ensued. Pierce served interrogatories on

appellant, and eventually filed a motion to compel that was granted

by the district court. Pierce noticed Ross’s deposition. Ross’s

attorney failed to provide a suitable date for the deposition, and

the district court eventually ordered Ross to respond to Pierce’s

discovery requests. Ross did not notice any depositions.

On November 7, 1994, six months after the district court

dismissed all the defendants but Pierce, Pierce filed a Renewed

Motion to Dismiss or for Summary Judgment, contending that he was

at all relevant times acting within the course and scope of his

FmHA employment. In that motion, Pierce contended that Ross had

“failed to conduct any discovery attempt to prove some ultra vires

act on the part of the defendant.” Ross opposed Pierce’s motion

arguing that he was “entitled to adequate discovery from the

Defendant, and upon his receiving said discovery, will produce
3

evidence of [defendant’s] ultra vires acts.” The district court

then entered a scheduling order directing that all discovery be

completed by February 1, and ordered Pierce to respond to all

discovery propounded on him by Ross, which Pierce apparently did on

December 19. The parties entered a case status report on March 1,

1995 indicating that “all discovery has been completed, with the

exception of some unspecified depositions which the plaintiff

indicates a desire to take with regard to certain U.S.D.A.

officials who participated in the review of plaintiff’s operating

loan applications/denials for 1991 and 1992.” Ross did not notice

any additional depositions, request additional discovery, object to

the case status report, or make any additional motions to compel.

With the Motion for Summary Judgment still pending in the

district court, Pierce filed a Motion for Clarification and Request

For Ruling on Renewed Motion to Dismiss or for Summary Judgment on

February 16, 1995. Ross did not oppose Pierce’s motion. Finally,

on April 19, 1995, the district court entered a Memorandum Opinion

and Order granting Pierce summary judgment.

Finally spurred into action, Ross filed a Motion to Alter or

Amend Order or Judgment, contending that his discovery was not

completed and that he still needed to conduct some depositions.

The district court denied that motion, noting that during the “two

years that his case was pending, the plaintiff never noticed a

single deposition.” Ross now appeals.
4

Discussion

Plaintiff-Appellant Ross complains that the district court

either was not aware of or did not consider Ross’s discovery

problems and need for additional discovery when it granted summary

judgment, and that summary judgment is thus improper. Ross is

correct that where the party opposing summary judgment adequately

invokes Rule 56, summary judgment may be improper. See

International Shortstop v. Rally’s Inc., 939 F.2d 1257, 1267 (5th

Cir. 1991), cert. denied, 502 U.S. 1059 (1992). However, “[t]he

nonmoving party must show how the additional discovery will defeat

the summary judgment motion, that is, will create a genuine dispute

as to a material fact, and ‘may not simply rely on vague assertions

that additional discovery will produce needed, but unspecified

facts.’” Id. (internal citation omitted) (quoting Washington v.

Allstate Ins. Co., 901 F.2d 1281, 1286 (5th Cir. 1990) and S.E.C.

v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980),

cert. denied, 449 U.S. 866 (1981)). In opposing Pierce’s November

7 motion for summary judgment, Ross arguably invoked Rule 56

adequately. In response, the district court entered a scheduling

order directing that all discovery be completed by February 1. The

district court also ordered the defendant to respond to all

discovery propounded on him by Ross, which defendant apparently did

on December 19. 
5

Even if we assume, however, that Ross adequately invoked Rule

56 against Pierce’s first motion for summary judgment, he did not

do so in response to Pierce’s February 16 motion. A “plaintiff

must present affirmative evidence in order to defeat a properly

supported motion for summary judgment. This is true even where the

evidence is likely to be within the possession of the defendant, as

long as the plaintiff has had a full opportunity to conduct

discovery.” Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2514

(1986) (emphasis added). Where the plaintiff has not had adequate

opportunity for discovery, summary judgment must be denied. In

Shortstop, for example, we reversed summary judgment where the nonmoving party made “multiple filings prior to the court’s ruling on

the motion for summary judgment, and “thrice sought a continuance

of discovery and promptly alerted the district court to the

discovery proceedings before the magistrate judge.” 939 F.2d at

1267-68. In that case the non-moving party also requested leave to

file a supplemental memorandum opposing summary judgment and

“explained that the discovery it sought pertained directly to the

[issue] which was the focus of” the summary judgment motion. Id.

at 1268. In contrast, however, Ross never opposed Pierce’s renewed

motion for summary judgment, never sought to continue discovery in

any way after December 19, and never explained what facts

additional discovery might yield on the ultra vires issue. Despite

the fact that Ross now claims he had additional discovery to do,
6

and that defendant’s responses to his discovery were inadequate, he

did not notice any additional depositions, request additional

discovery, or file any additional motions to compel. Moreover,

Ross knew the identity of all the individuals reviewing his loans

at least by September 7, 1993. We can not say that Ross had

inadequate opportunity to discover essential information where he

had from September 1993 until April of 1995 to notice these

depositions and did not. Ross neither opposed or objected to the

supposedly inaccurate case status report of March 1, 1995. When

the district court noted that “all discovery had been completed,”

it was because Ross had not noticed a single deposition or objected

to discovery since December 19, nor objected to Pierce’s renewed

motion on the grounds that his own discovery was incomplete. In

the absence of any of these actions by the party opposing summary

judgment, the district court did not abuse its discretion in

issuing summary judgment without affording Ross additional time for

discovery. See Carriere v. Sears, Roebuck, 893 F.2d 98, 102 (5th

Cir.), cert. denied, 498 U.S. 817 (1990) (four month delay in

discovery justifies denial of Rule 56(f) motion and entry of

summary judgment).

Finally, Ross contends that summary judgment was improper in

this case because “cases which turn on the moving party’s state of

mind are not well suited for summary judgment.” Appellant’s Brief,

citing Ross v. John’s Bargain Stores, 464 F.2d 111, 115 (5th Cir.
7

1972). Nevertheless, the plaintiff must make a showing sufficient

to establish the existence of each element essential to his case.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Plaintiff’s brief

asserts no evidence to raise a question of fact on the ultra vires

issue, the only issue remaining in the case. Similarly,

plaintiff’s response to Pierce’s summary judgment motion, filed in

the district court, asserts no evidence to raise a question of fact

on the ultra vires issue but merely concludes that such evidence

might be forthcoming from discovery. Ross does not explain what

this evidence might be, nor from whom it might come. As explained

above, summary judgment was appropriately granted by the district

court despite plaintiff’s nebulous reference to additional

discovery.

AFFIRMED.