* This order and judgment is not binding precedent, e xcept under the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

### FEB 11 1998 

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

MICHAEL MINTZ,

Plaintiff-Appellant,

v. GARY L. HENMAN, Warden; FRANCISCO DELMURO, M.D.; GILBERTO MEJIA; (NFN) (HAROLD) HARRELL, Assistant Warden; THOMAS V. (KRAJENKA); KRAJENTA; TERRY L. CAIN; JOSEPH M. MENDEZ; THOMAS S. HYDE; MICHAEL (TALBOT) TOLBERT; AND GREGORY G. HOUGH, Defendants-Appellees. No. 97-3081 (D.C. No. 93-CV-3535-RDR)

(D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.1 Rule 56(f) provides:

(f) When Affidavits are Unavailable . Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the applic ation for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or m ay make such other order as is just.

-2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Michael Mintz, a federal prisoner, appeal s the district court’s entry of summary judgment in favor of defendants on his c ivil rights claims. Plaintiff concedes that, in responding to defendants’ motion, he did not come forward with evidence demonstrating a genuine issue of material fact. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (discussing standard for evaluating merits of a summary judgment motion). He asserts, however, that the district court erred in granting summary judgment in spite of his request f or additional time to conduct discovery, pursuant to Fed. R. Civ. P. 56(f). 1 After reviewing the district court’s ruling for abuse of discretion, see International Surplus Lines Ins. Co. v. Wyoming Coal Ref. Sys. Inc. , 52 F.3d 901, 904 (10th Cir. 1995), we affirm.-3-

Fed R. Civ. P. 56(f) allows a party opposing a moti on for summary judgment to seek deferral of a ruling pending disco very of essential facts. See Committee for the First Amendment v. Campbell , 962 F.2d 1517, 1521-22 (10th Cir. 1992). The rule is not “invoked by the mere a ssertion that discovery is incomplete or that specific facts necessary to oppo se summary judgment are unavailable.” Pasternak v. Lear Petroleum Explorat ion, Inc. , 790 F.2d 828, 833 (10th Cir. 1986). A party requesting additional ti me must provide an affidavit “identifying the probable facts that are not available,” listing the steps “taken to obtain these facts,” and explaining “how additional time will enable him to rebut movant’s allegations of no genuine issue of fact,” Committee for the First Amendment , 962 F.2d at 1522 (quotation omitted). “The purpo se of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in good faith and to afford the trial court the showin g necessary to assess the merit of a party’s opposition.” Id . (quotation omitted). If the party seeking deferr al has been dilatory, “no extension will be granted.” Jen sen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1554 (10th Cir.1993). Here, defendants filed their summary judgment motio n on March 5, 1996. Acting pro se, plaintiff responded on March 21 withconclusory statements unsupported by any evidentiary matter. At a pretri al hearing held April 17, plaintiff indicated that no further discovery was n ecessary. On August 16, 1996,-4-

an attorney entered his appearance for plaintiff an d asked for the court’s permission to submit an out-of-time response to the summary judgment motion. The district court granted the request. On the Dec ember 9, the attorney filed a memorandum opposing the motion. The memorandum dis puted defendants’ version of certain material facts, but noted that p laintiff could not yet produce opposing affidavits and asked for “a continuance to permit affidavits to be obtained or discovery to be taken as envisioned by Rule 56(f).” Appellant’s App. at 112, 113, 114. No affidavit accompanied the mem orandum. “[C]ounsel’s unverified assertion in a memorandum o pposing summary judgment does not comply with Rule 56(f) and result s in a waiver.” Committee for the First Amendment , 962 F.2d at 1522. Moreover, even if plaintiff’s counseled memorandum may be construed as the requis ite affidavit, the submission does not meet the requirements of Rule 5 6(f). For instance, the memorandum provides no information on the steps pla intiff had already taken to obtain discovery. Finally, the record reflects that plaintiff was dilatory. He made no attempt to obtain discovery, even during the fou r-month period between counsel’s entry of appearance and the filing of the memorandum.-5-

Under the circumstances, the district court did notabuse its discretion in denying plaintiff’s Rule 56(f) motion. The judgment of the United States District Court for the District of Kansas is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge