Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.william Wentworth Foster; Jeffrey R. Ferguson, Appellants, v. Dora Schriro; Michael Bowersox; Gloria Gourley, Appellees, 131 F.3d 143 (8th Cir. 1997)

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US Court of Appeals for the Eighth Circuit - 131 F.3d 143 (8th Cir. 1997)

Submitted: Dec. 1, 1997. Decided: Dec. 5, 1997

Appeal from the United States District Court for the Eastern District of Missouri.

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.


William Foster and Jeffrey Ferguson (plaintiffs), Missouri inmates, appeal the adverse grant of summary judgment and dismissal of their claims by the district court1  in their 42 U.S.C. § 1983 action. Plaintiffs sought to enjoin the implementation of a new inmate personal property policy at Potosi Correctional Center, claiming that it was adopted in retaliation for inmate-filed lawsuits.

We conclude that the district court did not abuse its discretion in denying plaintiffs' motion to hold defendants' dispositive motion in abeyance for additional time to conduct discovery, see Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1103 (8th Cir. 1996) (standard of review), that summary judgment was appropriate based on defendants' unrebutted evidence, see Goff v. Burton, 7 F.3d 734, 737-38 (8th Cir. 1993) (to prevail on retaliation claim, prisoner had burden of showing transfer would not have occurred but for inmate's litigation activities), cert. denied, 512 U.S. 1209 (1994), and that dismissal of plaintiffs' other claims was proper. We also conclude that the district court did not abuse its discretion in denying plaintiffs class certification, see Prince v. Endell, 78 F.3d 397, 399 (8th Cir. 1996) (per curiam), or in denying appointment of counsel, see Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991), cert. denied, 504 U.S. 930 (1992).

The judgment is affirmed.


The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri