Beruflich Dokumente
Kultur Dokumente
AUG 9 2004
PATRICK FISHER
Clerk
No. 03-6222
(D.C. No. 02-CV-1173-F)
(W.D. Okla.)
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
the district court enter summary judgment in favor of defendants Ward and Cotner
because he concluded that: (1) plaintiff submitted insufficient evidence to support
an inference that he had been exposed to unreasonably high levels of (ETS); and
(2) even if plaintiff could prove that he was exposed to unreasonably high levels
of ETS, he failed to submit evidence showing that defendants Ward and Cotner
acted with deliberate indifference concerning ETS.
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Simms v. Okla. ex
, 151
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Finally, in his opening brief, plaintiff argues that the district court erred by
not allowing him to engage in discovery regarding his Eighth Amendment claim
before entering summary judgment. However, if [plaintiff] felt he could not
oppose defendants motion[] for summary judgment without more information, he
should have submitted an affidavit pursuant to Fed. R. Civ. P. 56(f) requesting a
continuance until further discovery was had.
979 (10th Cir. 1993). Plaintiff failed to submit a Rule 56(f) affidavit to the
district court, however, and the fact that he was pro se in the district court
proceedings did not excuse him from complying with the requirements of Rule
56(f). Id. In light of plaintiffs failure to present and preserve the discovery
issue in accordance with Rule 56(f), we deem it waived.
The judgment of the district court is AFFIRMED. We also GRANT the
Request for Extension of Time to Pay Required Filing Fee that plaintiff filed in
this court on June 9, 2004 insofar as plaintiff requested an extension of time until
June 17, 2004.
Entered for the Court
Michael R. Murphy
Circuit Judge
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