Rupert v. Boyd et al
ORDER granting 27 Motion for Leave to File a Third Amended Complaint. The Clerk is instructed to file a copy of that Motion as "Plaintiff's Third Amended Complaint". The Clerk is instructed to prepare a summons for Sheriff Marty Boy d and the U.S. Marshal is directed to serve the summons, Complaint, Amended Complaint, Second Amended Complaint, Third Amended Complaint and this Order on him without prepayment of fees and costs and security therefor. Plaintiff has until 11/13/2017 to file a response to Defendants' Motion for Summary Judgment and a separate Statement of Disputed Facts. Signed by Magistrate Judge J. Thomas Ray on 10/12/2017. (jak)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KEITH BOWERS, Administrator; and
CASEY GIBSON, Correctional Officer,
Craighead County Detention Center, et al.
There are two non-dispositive matters pending in this pro se § 1983 action,
which the Court will address separately.
I. Plaintiff's Motion for Leave to File a Third Amended Complaint
Plaintiff has filed a Motion for Leave to file a Third Amended Complaint that
renews his previously dismissed claims against Sheriff Marty Boyd. Docs. 19 &
27. Defendants have not objected to the Motion, and the time for doing so has
See Local Rule 7.2(b) & (f). Additionally, the Court concludes, for
screening purposes only, that Plaintiff has now pled a viable claim against Boyd.
See 28 U.S.C. § 1915A.
Accordingly, the Motion for Leave to File a Third
Amended Complaint is granted.
II. Defendants' Motion for Summary Judgment
Defendants have filed a Motion for Summary Judgment on the Issue of
Exhaustion, a Brief in Support, and a Statement of Undisputed Facts. Docs. 31, 32,
& 33. Plaintiff has a right to file a Response to 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 should 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. Furthermore, pursuant to Local Rule
56.1, Plaintiff’s Response must be accompanied by a separate document captioned
“Statement of Disputed Facts,” which specifically identifies: (a) any disagreement
he has with the numbered factual assertions in Defendants= Statement of Undisputed
Facts2 (Doc. 31); and (b) any other disputed facts that he believes must be resolved
at a hearing or trial.
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.
If Plaintiff disputes any of the facts in Defendants= Statement of Undisputed Facts, he
must: (1) identify each numbered paragraph that contains the fact he disputes; (2) explain why he
disputes the fact in that paragraph; and (3) refers to, by docket and exhibit number, the evidence
he relies on to support his version of the disputed fact. For example:
Disputed. The incident took place on 1-1-17 in the cafeteria. Doc. 10, Ex. 5.
Finally, if Plaintiff intends to rely on documents that have been previously
filed in the record, he must specifically refer to those documents by docket number
and page. The Court will not sift through the file to find support for Plaintiff=s
factual contentions. See Crossley v. Georgia-Pacific, Corp., 355 F.3d 1112, 111314 (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:
Plaintiff's Motion for Leave to File a Third Amended Complaint (Doc.
27) is GRANTED, and the Clerk is instructed to file a copy of that Motion as
"Plaintiff's Third Amended Complaint."
The Clerk is instructed to prepare a summons for Sheriff Marty Boyd
and the U.S. Marshal is directed to serve the summons, Complaint, Amended
Complaint, Second Amended Complaint, Third Amended Complaint, and this Order
on him without prepayment of fees and costs and security therefor.
Plaintiff has until and including November 13, 2017, to file a Response
to Defendants= Motion for Summary Judgment and a separate Statement of Disputed
Facts that comply with Fed. R. Civ. P. 56, Local Rule 56.1, and the instructions in
Plaintiff is advised that the failure to timely and properly file a
Response and Statement of Disputed Facts will result in: (a) all of the facts in
Defendants= Statement of Undisputed Facts being deemed admitted by Plaintiff,
pursuant to Local Rule 56.1(c); and (b) the possible dismissal of this action, without
prejudice, pursuant to Local Rule 5.5(c)(2).
Dated this 12th day of October, 2017.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?