James v. Ball et al

Filing 37

ORDER directing the Plaintiff to file, within 30 days a Response to 31 MOTION for Partial Summary Judgment as to all claims against Wendy Kelley and a separate Statement of Disputed Facts that comply with the Fed.R Civ.P, Local Rule 56.1, and the instructions set forth in this Order. Signed by Magistrate Judge J. Thomas Ray on 02/10/2012. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

DONNIE B. JAMES
ADC #089050
V.

PLAINTIFF
2:11CV00161 BSM/JTR

DR. DON BALL,
Correctional Medical Services, Inc., et al.

DEFENDANTS

ORDER
Separate Defendant Wendy Kelley has filed a Motion for Summary Judgment,
a Brief in Support, and a Statement of Undisputed Facts. See docket entries #31, #32,
and #33. The Court concludes that a Response from Plaintiff would be helpful to the
resolution of that Motion.
At the summary judgment stage, a plaintiff cannot rest upon mere allegations
and, instead, must meet proof with proof. See Fed. R. Civ. P. 56(e). This means that
Plaintiff’s Response must include his legal arguments, as well as affidavits,1 prison
records, or other evidence establishing that there is a genuine issue of material fact
that must be resolved at a hearing or trial.

1

The affidavit must be based upon the personal knowledge of the person
executing the affidavit and must be either: (1) sworn and subscribed to by a notary
public; or (2) executed under penalty of perjury, as provided for by 28 U.S.C. § 1746.

Furthermore, pursuant to Local Rule 56.1, Plaintiff must also separately file a
Statement of Disputed Facts, which lists: (a) any disagreement he has with the
specifically numbered factual assertions contained in Defendant’s Statement of
Undisputed Facts (docket entry #33); and (b) any other disputed facts that he believes
must be resolved at a hearing or trial.2
Finally, Plaintiff is advised that if he intends to rely upon grievances or records
that have been previously filed with the Court, he must specifically refer to those
documents by docket number, page, date, and heading. The Court will not sift through
the file to find support for Plaintiff’s factual contentions. See Crossley v. GeorgiaPacific, Corp., 355 F.3d 1112, 1113-14 (8th Cir. 2004) (affirming the grant of
summary judgment because a plaintiff failed to properly refer to specific pages of the
record that supported his position).
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff shall file, within thirty days of the entry of the Order, a

Response to Defendant’s Motion for Summary Judgment and a separate Statement of
Disputed Facts that comply with the Fed. R. Civ. P. 56, Local Rule 56.1, and the
instructions set forth in this Order.

2

If Plaintiff disputes any of the facts set forth in Defendant’s Statement of
Undisputed Facts, he must identify each numbered paragraph that contains the facts
he disputes and, for each paragraph, explain why he disputes those facts.
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2.

Plaintiff is advised that the failure to timely and properly comply with

this Order will result in: (a) all of the facts set forth in Defendant’s summary judgment
papers being deemed admitted by Plaintiff, pursuant to Local Rule 56.1(c); or (b) the
dismissal of this action, without prejudice, pursuant to Local Rule 5.5(c)(2).
Dated this 10th day of February, 2012.

UNITED STATES MAGISTRATE JUDGE

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