Bales et al v. Farguson et al

Filing 117

ORDER re 113 First MOTION to Dismiss . Mr. Cardoza is directed to file a response within 14 days of this Order. The Clerk is directed to correct the docket to show that Mr. Cardoza is proceeding pro se. Signed by Magistrate Judge Beth Deere on 12/12/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
NOE CARDOZA
ADC #151088
V.

PLAINTIFF
CASE NO. 1:11CV00070-DPM-BD

FERGUSON, et al.

DEFENDANTS
ORDER

The Defendants have filed a motion for summary judgment and a motion to
dismiss. (Docket entries #109, #113) The Court afforded Mr. Cardoza the opportunity to
respond to the motion for summary judgment (#112), but he has not done so.
A review of the docket sheet, however, indicates that it is questionable whether
Mr. Cardoza received the Court’s Order directing a response.1 (#112) The docket sheet
erroneously shows that Mr. Cardoza is represented by Defendants’ counsel. That
obviously is not the case. The Clerk is directed to correct the docket to show that Mr.
Cardoza is proceeding pro se.
It appears that the Order directing Mr. Cardoza to respond was sent to Defendants’
counsel, but not to Mr. Cardoza. Accordingly, Mr. Cardoza should be given a fair chance
to respond to Defendants’ motion for summary judgment.

1

The motion to dismiss is based solely on Mr. Cardoza’s failure to comply with
the Court’s Order directing Mr. Cardoza to respond to the motion for summary judgment.
(#113) Mr. Cardoza is not required to respond to the motion for summary judgment, and
the Court will not dismiss this case based on the fact that no response was filed.
However, the Defendants’ Statement of Undisputed Facts may be deemed as true if there
is no response.

If Mr. Cardoza wishes to file a response, it must be filed within fourteen (14) days
of this Order.2 The response may include opposing affidavits that Mr. Cardoza or others
have signed. Affidavits are sworn statements, so they must be either notarized or
declared under penalty of perjury (see 28 U.S.C. § 1746). Unsworn statements will not be
considered in deciding the motion for summary judgment. And to be considered, an
affidavit must be based on the personal knowledge of the person signing it.
If Mr. Cardoza files a response, he must also file a separate, short statement setting
forth the disputed facts that he believes must be decided at a trial. See Local Rule 56.1,
Rules of the United States District Court for the Eastern District of Arkansas.
DATED this 12th day of December, 2012.

___________________________________
UNITED STATES MAGISTRATE JUDGE

2

Local Rule 5.5(c)(2) includes requirements for parties who are not represented
by counsel. They must: promptly notify the Clerk and the other parties in the case of any
change in address; monitor the progress of the case and to prosecute or defend the case
diligently; sign all pleadings and include a current address, zip code, and telephone
number; and be familiar with and follow both Local Rules and the Federal Rules of Civil
Procedure. Any plaintiff not represented by counsel must respond to communications
from the Court within thirty (30) days, or the case can be dismissed.
2