Criminal Practice – Federal Tort Claims Act – Rule 56(d)

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The district court’s denial of the former federal prisoner’s Rule 56(d) request ignores unrebutted, legally significant evidence related to his pursuit of his discovery requests and constitutes an abuse of discretion.

We vacated the district court’s summary judgment order and remanded.

Larry Michael Slusser, a former federal prisoner, appealed the district court’s order accepting the magistrate judge’s recommendation and awarding summary judgment to the United States on Slusser’s negligence claim brought under the Federal Tort Claims Act (FTCA). On appeal, Slusser contended that the district court erred in awarding summary judgment to the United States for two reasons: (1) the district court’s decision was premature because the United States did not provide Slusser with requested discovery, and (2) a genuine issue of material fact existed as to his negligence claim.

Slusser filed a pro se amended complaint against the United States alleging a negligence claim under the FTCA after he allegedly slipped on a puddle of water and fell while incarcerated in the Federal Correctional Institution in Edgefield, South Carolina. Slusser broke his right wrist as a result of the fall and underwent surgery. The amended complaint alleged that a correctional officer on duty in Slusser’s unit knew or should have known about the puddle of water and faulted the officer for neither posting “Wet Floor” signs near the puddle nor taking steps to have the puddle mopped up. The United States moved to dismiss the amended complaint and to stay discovery pending the resolution of its motion to dismiss. The magistrate judge granted the motion to stay discovery but later recommended denying the motion to dismiss. The district court adopted the magistrate judge’s recommendation and denied the motion to dismiss. The discovery stay terminated at that point.

The magistrate judge thereafter entered an Amended Scheduling Order requiring that discovery be completed no later than January 9, 2023, and that all discovery requests be served in time for any responses to be served by that date. On January 9, 2023, the district court received Slusser’s “Motion for Discovery and Subpoena Duces Tecum,” which was dated January 2, 2023, and sought the same discovery as requested in December 2021. Two days later, the magistrate judge denied the motion. On January 17, 2023, the district court received Slusser’s “Motion to Compel All Discovery,” which was dated January 12, 2023. Slusser explained that he received a January 9, 2023, letter from the Assistant United States Attorney returning his discovery requests because, in the attorney’s view, they were not timely served. The magistrate judge denied the motion to compel and agreed with the United States that the discovery requests were not timely served. The United States then moved for summary judgment on Slusser’s negligence claim. In response, Slusser argued, among other things, that the motion was premature because the United States never responded to his discovery requests served in December 2021. The magistrate judge issued a report recommending that the United States’ summary judgment motion be granted. Slusser objected to the magistrate judge’s report and again insisted that the United States had to respond to his discovery requests served in December 2021. Slusser also filed an affidavit under Fed. R. Civ. P. 56(d), explaining why he needed the requested discovery and asking the district court to defer ruling on the summary judgment motion until that discovery was produced. The district court entered an order overruling Slusser’s objections, adopting the magistrate judge’s recommendation, and awarding summary judgment to the United States. The district court rejected Slusser’s Rule 56(d) request to defer action on the motion for summary judgment. The district court assumed that the requested discovery would create a genuine issue of material fact on Slusser’s negligence claim but found that Slusser was not entitled to a deferral because he failed to explain why he did not timely serve his January 2023 discovery requests under the Amended Scheduling Order. Slusser timely appealed the district court’s order.

On appeal, Slusser argued that the district court erred in denying his Rule 56(d) request to defer a ruling on the United States’ summary judgment motion. We agreed with Slusser that the district court abused its discretion in denying his request under Rule 56(d). The district court’s analysis did not consider that Slusser served discovery requests on the United States in December 2021, before the magistrate judge stayed discovery pending resolution of the United States’ motion to dismiss. After the district court resolved the motion to dismiss, the discovery stay terminated and Slusser’s December 2021 discovery requests remained pending. The untimeliness of any later requests for the same discovery does not undermine that fact. We thus concluded that the district court’s denial of Slusser’s Rule 56(d) request ignores unrebutted, legally significant evidence related to Slusser’s pursuit of his discovery requests and constitutes an abuse of discretion.

Vacated and remanded.

Slusser v. U.S. (Lawyers’ Weekly No. 003-006-25, 7 pp.) (Per Curiam) Appealed from the U.S. District Court for the District of South Carolina, at Rock Hill (Donald C. Coggins Jr., J.) Larry Michael Slusser, Appellant Pro Se; Johanna Valenzuela, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit Unpublished