UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) GILBERT M. GRAHAM, ) ) Plaintiff, ) ) v. )Civil Action No. 03-1951 (RWR/DAR) ) MICHAEL MUKASEY et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Gilbert Graham brought this employment

discrimination action against the Attorney General and others.

He objects to an order by the magistrate judge that denied his

motion for additional discovery under Fed. R. Civ. P. 56(f).

Because Graham has not shown that the magistrate judge’s order

was clearly erroneous or contrary to law, Graham’s objections

have been overruled.

BACKGROUND

Graham filed this lawsuit alleging seven counts of

discrimination against the defendants. Six of Graham’s seven

counts were dismissed, while one count alleging that the

defendants discriminated against Graham by subjecting him to a

hostile work environment in retaliation for participation in

protected activities survived. After discovery was completed,

the defendants moved for summary judgment under Rule 56, arguing

that the five bases for Graham’s assertion of a retaliatory -2-

hostile work environment could not as a matter of law constitute

a hostile work environment:

(a) [Graham] was not afforded “reasonable leave” to work on his EEO complaint; (b) his request for leave was subjected to scrutiny; (c) his reputation was tarnished when he was given a mechanically deficient FBI car; (d) he was told by FBI counsel that he could not publish a document that contained classified information . . . ; and (e) he was threatened that he could be prosecuted if he published the classified document.

(Defs.’ Mem. in Supp. of Mot. for Summ. J. at 7.) Graham

responded by moving for a continuance to obtain discovery under

Rule 56(f), arguing that he was denied the opportunity to conduct

discovery necessary to oppose defendants’ motion for summary

judgment. (Pl.’s Mot. to Continue Pursuant to Rule 56(f) (“Pl.’s

Mot. to Continue”) at 1.) Defendants opposed Graham’s motion for

discovery, arguing that the record showed that Graham was given a

full and fair opportunity to conduct discovery.

Magistrate Judge Robinson denied Graham’s motion to

continue, finding that

Plaintiff has failed to make the showing required by Rule 56(f) of the Federal Rules of Civil Procedure. That rule requires that a party opposing a motion for summary judgment show by affidavit “that, for specified reasons, [he] cannot present facts essential to justify [his] opposition.” Here, Plaintiff makes no such allegation; rather, Plaintiff appears to invite the court to revisit various prior rulings limiting discovery. See, e.g., Plaintiff’s Rule 56(f) Motion at 2-3, 4-12. While Plaintiff submits that he “has been prohibited from obtaining access to all relevant facts required to define the precise formulation of a prima facie case . . ., he does not identify any material fact enumerated by Defendants in the statement -3-

accompanying their Motion for Summary Judgment which he is unable, by reason of a need for additional discovery, to controvert.

(Order Denying Plaintiff’s Mot., July 24, 2008 (“Order”) at 1-2.)

Graham objects to the Order, arguing that the Order was based on

a misunderstanding of the proper scope of discovery to which he

was entitled; improperly required Graham to identify material

facts he needed more discovery to controvert; was arbitrary; and

improperly characterized his request for a polygraph examination

as not a discovery request.1 (Pl.’s Mem. in Supp. of Pl.’s Mot.

for Recons. (“Pl.’s Mem.”) at 1.)

DISCUSSION

A party may object to a magistrate judge’s determination in

a discovery dispute. Fed. R. Civ. P. 72(a); Local Civil Rule

72.2. “Upon consideration of objections filed . . . , a district

judge may modify or set aside any portion of a magistrate judge’s

order under this Rule found to be clearly erroneous or contrary

to law.” Local Civil Rule 72.2(c). A magistrate judge’s

decision is entitled to great deference unless it is clearly

erroneous or contrary to law, “that is, if on the entire evidence

1 Graham also argues that the Order improperly made a credibility determination in the defendants’ favor by citing the defendant’s argument that “nothing in the record indicates that [Graham] was not given a full and fair opportunity to conduct discovery.” (Pl.’s Mem. at 5.) However, the Order found that Graham had not made the showing required by Rule 56(f). It made no credibility determinations and did not even comment upon the defendants’ argument. -4-

the court is left with the definite and firm conviction that a

mistake has been committed.” Donohoe v. Bonneville, Civil Action

No. 07-949 (RWR),

(D.D.C. February 27,

2009) (quoting Moore v. Chertoff,

(D.D.C. 2008)).

A party may respond to a motion for summary judgment by

moving for additional discovery. Rule 56(f) requires that the

party seeking additional discovery show by affidavit “that, for

specified reasons, it cannot present facts essential to justify

its opposition[.]” Fed. R. Civ. P. 56(f); Bancoult v. McNamara,

(D.D.C. 2003) (“A non-moving party seeking

the protection of Rule 56(f) must state by affidavit the reasons

why he is unable to present the necessary opposing material.”)

(citation omitted). The party seeking discovery bears the burden

of identifying the facts to be discovered that would create

genuine issues of material fact and the reasons why the party

cannot acquire those facts without additional discovery. Byrd v.

Environmental Protection Agency,

, 248 n.8 (D.C. Cir.

1999).

Graham argues that the Order was based on a misunderstanding

and misapplication of the general principle that plaintiffs enjoy

liberal discovery of employers’ records to document their claims.

He asserts that the Order wrongly concluded that his motion for

additional discovery sought to revisit prior discovery rulings. -5-

Contrary to Graham’s assertion, there was nothing erroneous about

the finding that Graham’s motion for a continuance attempted to

revisit previous discovery rulings that did not go his way.

Graham’s motion objected to, and sought additional discovery for,

“defendants’ inadequate responses to interrogator[ies]

[numbers 3, 10, and 17],” “defendants’ inadequate responses” to

documents requests 10, 14 and 57, and “defendants’ inadequate

responses” to requests for admission 24, 164, 167, 169, and 171,

and sought an order requiring “additional discovery” regarding

those interrogatories and document requests. (Pl.’s Mem. in

Supp. of Pl.’s Mot. to Continue at 6-11.) Graham already

litigated those very same discovery responses. (See Pl.’s Mot.

to Determine the Sufficiency of Defs.’ Resps. to First Request

for Admns., September 11, 2006 [Docket No. 78]; Pl.’s Mot. for

Sanctions for Defs.’ Noncompliance with the Court’s Discovery

Order, September 22, 2006 [Docket No. 79]; Pl.’s Mot for

Sanctions for Defs.’ Noncompliance with the Court’s Disc. Orders,

November 16, 2006 [Docket No. 91].) Graham objected to one

adverse discovery decision, and his objection was overruled. See

Graham v. Mukasey,

(D.D.C. 2008). Graham

also seeks to serve on defendants additional interrogatories that

were previously deemed untimely by Magistrate Judge Robinson.

(See Pl.’s Mot. for Extension of Time to Complete Disc. and

Extend Disc. Limits, June 9, 2006 [Docket No. 62]; Minute Entry -6-

of June 12, 2006 Denying in Part Pl.’s Mot.) Thus, the Order did

not clearly err by determining that these issues had been

previously litigated, and that reviving them does not satisfy his

burden under Rule 56(f). See Pinkerton’s Inc. v. Shelly

Pinkerton Corp.,

(6th Cir. 1999) (plaintiff

prohibited from relitigating discovery issues under Rule 56(f)).

Graham argues that the Order was clearly erroneous and

arbitrary because it required Graham to specify how his

additional requested discovery would controvert the defendants’

assertions in their motion for summary judgment. (Pl.’s Mem.

at 7.) Graham complains that the Order will “railroad” him by

forcing him to oppose “a premature motion for summary judgment

before making full discovery.” (Pl.’s Mem. at 8.) Rule 56(f) is

intended to prevent railroading “a non-moving party through a

premature motion for summary judgment before the non-moving party

has had the opportunity to make full discovery.” Berliner

Corcoran & Rowe LLP v. Orian,

(D.D.C.

2008) (quoting Dickens v. Whole Foods Market Group Inc., Civil

Action No. 01-1054 (RMC),

, at * 2 n.5 (D.D.C.

March 18, 2003)). However, Graham has had ample opportunity to

obtain discovery. Discovery began in February of 2006, and the

defendants have produced roughly 5,000 pages of documents.

Graham’s affidavit reiterates previous discovery disputes that

have already been ruled upon, and does not specify beyond mere -7-

speculation what additional discovery would divulge and why that

material is necessary for Graham to oppose the defendants’ motion

for summary judgment regarding his five bases for alleging a

retaliatory hostile work environment.

With respect to the basis that he was not afforded a

reasonable amount of administrative leave to work on his EEO

claims and that his leave request was scrutinized, the defendants

provided affidavits from Graham’s immediate supervisor and the

assistant Special Agent in Charge that purported to provide a

legitimate reason for a denial of Graham’s request to take

administrative leave. (Def.’s Stmt. of Mat. Facts not in Disp.

at ¶¶ 7-13.) Graham’s proposed requests for additional discovery

do not appear to be geared to produce evidence that pertains to

these factual assertions other than “Interrogatory No. 22,” an

interrogatory that was previously deemed untimely by Magistrate

Judge Robinson. In addition, Graham does not specifically

describe what facts he expects the answer to that additional

interrogatory would provide, other than that it would “reveal

triable issues of fact.” (See Pl.’s Mem. in Supp. of Pl.’s Mot.

for Add’l Disc. at 16.) A Rule 56(f) motion for additional

discovery is not designed to allow “fishing expeditions,” and

plaintiffs must specifically explain what their proposed

discovery would likely reveal and why that revelation would

advance the plaintiffs’ case. See Hotel & Rest. Employees Union, -8-

Local 25 v. Att’y Gen.,

(D.C. Cir. 1986),

vacated on other grounds,

(D.C. Cir. 1987) (“The

procedure [under Rule 56(f)] is designed to prevent fishing

expeditions by narrowing the scope of discovery[.]”); Cotton v.

Wash. Metro. Area Transit Auth., Civil Action No. 01-0801 (DAR),

, at *10 (D.D.C. March 3, 2004) (“Plaintiff has

failed to establish any nexus between the depositions Plaintiff

wishes to take . . . and the development of ‘facts essential to

justify the party’s opposition[.]’ . . . An order allowing

discovery pursuant to Rule 56(f) would, in the context of this

litigation, amount to little more than a fishing expedition.”)

(quoting Rule 56(f)).

With respect to the basis that his reputation was

deleteriously affected when the defendants provided him with a

mechanically deficient automobile, the defendant provided the

affidavit of Graham’s immediate supervisor who asserted that

Graham was given a different vehicle after he was reassigned

because the supervisor needed to maintain the low-mileage

vehicles for agents who remained on the squad who were continuing

to “work the target.” Graham’s supervisor’s affidavit also

explained that the outstanding citations that were issued to the

automobile assigned to Graham were investigated and that the

defendants decided to pay the citations through a Confidential

Services Unit approximately two months after Graham learned of -9-

them. In addition, the defendants provided a work order showing

that a new battery and a new thermostat were placed in Graham’s

automobile one week after Graham reported that there was no heat

in the car and that it did not start properly, and that on three

occasions when Graham complained of problems with the automobile,

it was repaired on the same day. (Def.’s Stmt. of Mat. Facts not

in Disp. at ¶¶ 14-17.) Graham’s proposed requests for additional

discovery do not appear to be aimed at producing evidence that

pertains to these factual assertions.

Finally, with respect to the basis that he was threatened

with prosecution if he released classified information in the

context of a separate lawsuit against the defendants and was

instructed not to publish such classified information, the

defendants provided affidavits from a Supervisory Special Agent

in the FBI asserting that Graham was merely informed that he

could not release classified information in the course of

litigation, and that Graham was required to use redacted versions

of classified letters that he wanted to submit to the court.

(Def.’s Stmt. of Mat. Facts not in Disp. at ¶¶ 20-24.) Graham

tailors some of his discovery requests to provide information

regarding this issue, but Graham does not explain what he

believes that he will find if granted his proposed additional

discovery, or how the information would rebut the assertions of

the defendants. For example, Graham expresses dissatisfaction -10-

with the defendants’ response to request for admission 171. In

that request for admission, Graham asks the defendants to admit

that, in 2003, Graham “was threatened with criminal prosecution

for any unauthorized disclosure of the reclassified letters

concerning his three day suspension.” (Pl.’s Mem. at 14.)

Defendants denied the request, and Graham wants to obtain

“information concerning plaintiff’s unauthorized disclosure of

reclassified information” from several of defendants’ employees.

However, Graham does not explain what he expects to find, or

how it would relate to his case. (See Reshard v. Peters,

, 68-69 n.11 (D.D.C. 2008) (plaintiff’s motion for

additional discovery denied because she did “not identify any

probable facts not already available to her that would raise a

triable issue of fact, nor [did] she state with specificity how

discovery would produce facts to rebut the defendant’s summary

judgment motion”).)

Graham argues that the Order clearly erred by determining

that Graham’s request to conduct a polygraph examination was not

a discovery request. He urges that the test could impeach or

corroborate the supervisor who stated in an affidavit attached to

the defendants’ motion for summary judgment that he did not

threaten Graham regarding the disclosure of classified

information. (Pl.’s Mem. at 10.) However, Graham has made no

showing that court-ordered polygraph examinations are among the -11-

discovery tools made available to parties under the federal

rules. And even though relevant and discoverable information

need not be admissible at trial, Fed. R. Civ. P. 26(b)(1), which

polygraph results usually are not, see, e.g., United States v.

Scheffer,

(1998) (noting about Military Rule of

Evidence 707’s prohibition against the admission of polygraph

evidence that “there is simply no consensus that polygraph

evidence is reliable. . . . [T]he scientific community remains

extremely polarized about the reliability of polygraph

techniques”); United States v. Johnson,

(2d Cir. 2006) (stating that “polygraph results are inadmissible

as evidence”); United States v. Prince-Oyibo,

(4th Cir. 2003) (reaffirming the per se ban on polygraph

evidence), relevant information must still be reasonably

calculated to lead to the discovery of admissible evidence. Fed.

R. Civ. P. 26(b)(1). Graham has made no showing of how polygraph

results would meet that test here.

CONCLUSION AND ORDER

Because Graham has not demonstrated that Magistrate Judge

Robinson’s Order was clearly erroneous or contrary to law,

Graham’s objections [116] to the Order denying his motion for

additional discovery under Rule 56(f) have been OVERRULED. It is

hereby -12-

ORDERED that Graham shall have until May 4, 2009 to file his

opposition to the defendants’ motion for summary judgment.

SIGNED this 3rd day of April, 2009.

/s/ RICHARD W. ROBERTS United States District Judge