28 F. 3d 1216 - McNary v. Indiana State Prison

Before RIPPLE and MANION, Circuit Judges, and ROBERT A. GRANT, District Judge**.

Darrell McNary, an inmate at the Indiana State Prison, filed an action pursuant to 42 U.S.C. Sec. 1983 against various prison officials. McNary alleged that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to protect him from assault by another inmate, Lamoine Oliver. McNary appeals from the grant of summary judgment in favor of the defendants, specifically challenging the district court's action in granting summary judgment for the defendants at a time when the defendants had not responded to his discovery requests.

In opposing summary judgment, McNary filed an affidavit contesting "all of the defendants claims." He also requested that the court "deny or either stay" its decision on summary judgment pending completion of discovery. (R. at 30). At the time of McNary's response to summary judgment, the defendant's response to McNary's discovery requests were not yet due. Subsequently and prior to the due date of the responses to the discovery requests, the defendants filed a request for a protective order precluding further discovery pending a ruling on their summary judgment motion. (R. at 34) Although McNary failed to respond, the court denied the defendants' request. (R. at 35). The defendant's presumably never answered the discovery requests and forty days later the court granted summary judgment in favor of the defendants. (R. at 37).

On appeal, McNary contends that the district court erred in ruling on defendants' motion for summary judgment while discovery was still pending. If McNary wanted compliance with outstanding discovery, however, he should have submitted a Rule 56(f) affidavit in order to secure such additional discovery. Chicago Florsheim Shoes v. Cluett, Peabody & Co., 826 F.2d 725, 727 (7th Cir.1987). Because McNary failed to move for a continuance to obtain discovery under Rule 56(f), we cannot conclude that the district court abused its discretion in proceeding to rule on defendants' motion for summary judgment. Id.1

McNary also asserts that he was not advised by the district court of the requirements of Federal Rule of Civil Procedure 56. McNary is correct. The district court did not advise him of his rights in opposing summary judgment. However, counsel for the defendants did advise him in a manner that fully satisfies the requirements of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982).

After reviewing the order of the district court granting summary judgment for defendants on the merits of their motion, we conclude that summary judgment was correctly entered in this case. For these reasons and those stated in the opinion of the district court, we AFFIRM.