Brown v. Davies

Decision Date29 November 1993
Citation976 F.2d 740
PartiesNOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
CourtU.S. Court of Appeals — Tenth Circuit

Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT *

JOHN P. MOORE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(e); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This is a pro se appeal from an order granting summary judgment to all defendants on various grounds. We have examined the briefs and the record and determine the judgment of the trial court should be affirmed.

In his brief, Mr. Brown asserts the trial court erred in granting summary judgment without discovery and by deciding factual disputes in defendants' favor. Neither argument has merit.

Although appearing here pro se, plaintiff was represented by counsel in the district court who filed a lengthy response to the defendants' motions for summary judgment. Nowhere in that response is there an indication that discovery was essential to summary judgment. Moreover, no affidavit was filed pursuant to Fed.R.Civ.P. 56(f) seeking a delay of the disposition of the motions so that discovery could be obtained.

There is simply no rule requiring discovery before disposition of a motion for summary judgment. Indeed, when the dispositive facts are uncontroverted, summary judgment is required. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). In the absence of a Rule 56(f) affidavit or some other indication in the record that discovery was necessary, a trial court is not inhibited from granting a motion for summary judgment even though discovery is incomplete.

Although Mr. Brown baldly asserts the trial court resolved disputed issues in defendants' favor, he has failed to set forth any such facts. Following the local...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT