Withers v. Hearns et al (INMATE 1)

Filing 17

ORDERED that on or before 7/17/2012 the plf shall file a response to the written report filed by the dfts, as further set out in order. Signed by Honorable Judge Susan Russ Walker on 6/27/2012. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT WITHERS, #229157,
Plaintiff,
v.

KYLE HEARNS, et al.,
Defendants.

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) CIVIL ACTION NO. 2:12-CV-214-WHA
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[WO]
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ORDER

The Magistrate Judge has reviewed the special report and supporting evidentiary
materials filed by the defendants and determined that the plaintiff should file a response in
opposition to such pleadings. Accordingly, it is
ORDERED that on or before July 17, 2012 the plaintiff shall file a response to the written
report filed by the defendants. If the plaintiff fails to file a response as required by this
order, the court will treat the plaintiff's failure to respond as an abandonment of the claims
set forth in the complaint and as a failure to prosecute this action. Moreover, the plaintiff
is specifically cautioned that if he fails to file a response in compliance with the directives
of this order the undersigned will recommend that this case be dismissed for such failure.
In addition, if the plaintiff fails to respond to the written report with respect to each of the
claims raised in his complaint, the court will treat this failure as an abandonment of these
claims and shall proceed as justice requires.
As indicated herein, at some time in the future the court may treat the defendants' report

and the plaintiff's response as a dispositive motion and response.1 Thus, in filing a response to
the defendants' report the plaintiff should not rely only on his or her unsworn pleadings but
should respond by filing sworn affidavits or statements,2 or other evidentiary materials developed
through discovery or other appropriate means and which set forth specific facts demonstrating
there is a genuine issue of material fact for trial in this case. Failure to file sworn affidavits or
other evidentiary materials may result in this court accepting the defendants’ evidence as the
truth.3 If documents are referred to in the opposing affidavits/sworn statements and have not
been previously filed with the court, sworn or certified copies of those papers must be attached
to the affidavits or served with them.
The parties are hereby notified that, unless within fifteen (15) days from the date of
this order a party files a response in opposition which presents sufficient legal cause why
such action should not be undertaken, upon the expiration of the time for the plaintiff to file
a response as allowed by this order, the court may at any time thereafter and without further
notice to the parties (1) treat the special report and any supporting evidentiary materials as a

1

Thus, in preparing a response to the special report filed by the defendants the plaintiff should
refer to the requirements of Rule 56, Federal Rules of Civil Procedure.
2

An affidavit is a statement in writing made under oath or on affirmation before a notary public
or other authorized officer. A sworn statement is made in writing to which the individual providing the
statement swears, certifies or affirms under penalty of perjury that the statement is true. The
affidavit/sworn statement must be made on personal knowledge, set forth such facts as would be
admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters
stated in the affidavit.
3

If the plaintiff is unable to present, by affidavit or sworn statement, facts essential to justify his
opposition to the defendants' report, then plaintiff must file a sworn statement as to why he or she is
unable to do so.

2

motion for summary judgment and (2) after considering any response as allowed by this order,
rule on the motion for summary judgment in accordance with the law.
Failure to follow the requirements of this order about the proper way to respond to the
defendants' report may result in a recommendation of the Magistrate Judge that final judgment
be entered in favor of the defendants without there being an evidentiary hearing.

Done this 27th day of June, 2012.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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