Walters v. City of Ocean Springs
| Decision Date | 03 October 1980 |
| Docket Number | No. 80-3192,80-3192 |
| Citation | 626 F.2d 1317 |
| Parties | Ralph A. WALTERS, Plaintiff-Appellant, v. CITY OF OCEAN SPRINGS and Kevin Alves, Defendants-Appellees. Summary Calendar . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Brice Kerr, Pascagoula, Miss., for plaintiff-appellant.
Hopkins & Logan, Thomas E. Vaughn, Gulfport, Miss., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GEE, RUBIN and RANDALL, Circuit Judges.
Plaintiff-Appellant Ralph A. Walters brings this appeal from summary judgment entered by the district court below in favor of both Defendant-Appellees, the City of Ocean Springs, Mississippi, and one of its policemen, Officer Kevin Alves. Walters alleged that the defendants deprived him of his constitutional rights when they arrested him on a charge of theft; his cause of action was based upon 42 U.S.C. § 1983 (1976), and was within the district court's subject-matter jurisdiction by virtue of 28 U.S.C. § 1343 (1976). He also alleged pendant state-law claims for malicious prosecution and abuse of process. On appeal, he urges that the trial court erred in denying his motion under Fed.R.Civ.P. 56(f) for additional discovery time to obtain affidavits that would controvert the defendants' summary judgment motions, and also urges that the grant of summary judgment was improper because the defendants had not succeeded in proving that there were no genuine issues of fact remaining in the case. For the reasons stated below, we affirm the decision of the district court in all respects.
On June 4, 1978, Mr. J. B. Nobles, a resident of Ocean Springs, Mississippi, filed a complaint with the Ocean Springs Police Department alleging that a boat motor had been stolen from his yard on the previous day. Officer Joe Ray Jones of the Ocean Springs Police Department investigated the alleged theft and filed an official report stating that a Mr. John Cole had advised Officer Jones that he and his wife had witnessed the theft of the outboard motor. According to Officer Jones' report, Cole told him that the theft was committed by two individuals driving a green Chevrolet pickup truck, license number JA5-423. According to the report, Cole described one individual as being a tall, slender man with graying hair, and the other as being a teenage boy. An arrest warrant was issued for a "person or persons unknown" on charges of grand larceny. Further investigation established that the license tag number related by Cole to Officer Jones corresponded to a green Chevrolet pickup truck owned by Walters. Additionally, Defendant-Appellee Alves contacted Cole to verify the account of the incident as set out in the investigation report filed by Officer Jones.
Investigators in the Ocean Springs Police Department traced Walters to Tylertown, Mississippi. Officer Alves checked state driver's license identification records to verify the approximate description and age of Walters, and ascertained that the description conformed to that given by Cole. At this point, Officer Alves and another officer, on instructions of their superior, went to Tylertown to question Walters and possibly to make an arrest based on Walters' replies. Upon questioning Walters, the policemen ascertained that he had been in Ocean Springs at the approximate time of the alleged theft, and that he had been accompanied by his son, a teenage boy fitting the approximate description related by Cole. Officer Alves noted that Walters conformed to the physical description given by Cole and that he was operating a green Chevrolet pickup truck with the tag number related by Cole. Accordingly, Officer Alves arrested Walters and returned him to Ocean Springs. Shortly thereafter, Walters was released on bond, with a preliminary hearing set for June 21, 1978. Walters does not allege that Officer Alves or any other member of the Ocean Springs Police Department used unnecessary force in making the arrest, or during the detention after arrest. Walters appeared at the preliminary hearing on June 21, 1978, but the two eye-witnesses, Mr. & Mrs. Cole, refused to appear to testify on behalf of either the State or Walters. Because the Coles' eye-witness testimony was the sole evidence linking Walters to the theft, the charges were dismissed.
Almost exactly one year later, on June 20, 1979, Walters filed this section 1983 action in the district court below, alleging that he had been deprived of his constitutional rights under color of state law by virtue of the acts of Officer Alves and the Police Department of the City of Ocean Springs. The specific rights he alleged were violated were "his rights to security of person and freedom from arrest, except on probable cause, supported by oath or affirmation, guaranteed by the Fourth Amendment to (the United States) Constitution, and his rights not to be deprived of liberty without due process of law, guaranteed by the Fifth and Fourteenth Amendments to said Constitution." Walters also alleged causes of action for malicious prosecution and abuse of process under Mississippi law as matters within the pendent jurisdiction of the district court. Officer Alves and the City of Ocean Springs answered separately on August 7, 1979.
On January 7, 1980, Officer Alves and the City filed separate motions for summary judgment with supporting affidavits. A hearing on the motions was set for February 4, 1980. On February 1, 1980, Walters responded to the defendants' motions for summary judgment, alleging first that there were still genuine issues of material fact in the case, and, in the alternative, that Walters had been unable to secure controverting affidavits from two key witnesses, Mr. & Mrs. Cole. Pursuant to Fed.R.Civ.P. 56(f), Walters moved for an order of continuance and enlargement of discovery time in order that he might depose Mr. & Mrs. Cole for purposes of opposing the defendants' motions for summary judgment. Walters' attorney attached a supporting affidavit, also pursuant to rule 56(f). He alleged in the affidavit that his conversations with Mr. & Mrs. Cole before and after filing suit had convinced him that their testimony would create genuine issues of fact regarding the circumstances of the arrest, but that the Coles had only indicated on January 29, 1980, that they would not come forth voluntarily to execute controverting affidavits.
At the hearing on February 4, 1980, the district court denied Walters' motion for continuance under rule 56(f), and granted in full both defendants' motions for summary judgment. On February 7, 1980, the district court entered its findings of fact and conclusions of law, and also entered summary judgment in favor of both defendants. Walters filed a motion to reconsider and vacate the summary judgment and to allow additional time for discovery, again urging his need to depose Mr. & Mrs. Cole to controvert the defendants' summary judgment motions. This motion was denied, and Walters appealed.
Fed.R.Civ.P. 56(e) provides, in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
The possible unfairness that this requirement might work upon the nonmovant is substantially mitigated by Fed.R.Civ.P. 56(f), which provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(Emphasis added.) Walters contends on appeal that the trial court erred in refusing his request for a continuance so that he could depose Mr. & Mrs. Cole in hopes of obtaining evidence to controvert the defendants' motions for summary judgment. We assume arguendo that Walters' motion met the formal requirements of rule 56(f), and that his rule 56(f) affidavit alleged with sufficient particularity the controverting facts that he expected to adduce from the Coles, and that those controverting facts would have created a genuine issue of fact sufficient to forestall the summary judgment.
Professor Moore has succinctly paraphrased the applicable law:
Where . . . the party opposing summary judgment timely presents his affidavit under Rule 56(f) stating reasons why he is presently unable to proffer evidentiary affidavits he directly and forthrightly invokes the trial court's discretion. Unless dilatory or lacking in merit, the motion should be liberally treated. Exercising a sound discretion the trial court then determines whether the stated reasons are adequate. And, absent abuse of discretion, the trial court's determination will not be interfered with by the appellate court.
Another illustrative situation to which Rule 56(f) may apply is where the opposing party has not been able to locate a witness, or having located him has been unable to secure an affidavit from him and has not had time to take his deposition, and such witness has knowledge of material facts which would defeat or aid in defeating the motion for summary judgment. The opposing party should detail the above situation by his own affidavit. The court may then, in the exercise of a sound discretion, grant or deny a continuance or make some other just disposition of the motion for summary judgment, depending on whether it believes the affidavit has merit.
6 (pt. 2) J. Moore, Federal...
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