Polk v. Pulaski County et al
ORDER, Plaintiff shall file, within thirty days of the entry of the Order, a Response to docket entry # 21 Defendants' MOTION to Dismiss and a separate Statement of Disputed Facts that comply with the Fed. R. Civ. P. 56, Local Rule 56.1, and th e instructions set forth in this Order. Failure to timely and properly comply with this Order will result in: (a) all of the facts set forth in Defendants' 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). Signed by Magistrate Judge J. Thomas Ray on 09/07/2011. (kcs)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PULASKI COUNTY, et. al.
Separate Defendants Blankenship, Elizandro, Hunter, Ward, and Woodard have
filed a Motion for Summary Judgment, a Supporting Brief, and a Statement of
Undisputed Facts.1 See docket entries #21, #22, and #25. 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
Defendants captioned their Motion as a “Motion to Dismiss.” Because they
included supporting documents, it is has been construed as a Motion for Summary
Judgment. See docket entry Fed. R. Civ. P. 12(b) (providing that if “matters outside
of the pleadings are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56");
Country Club Estates v. Town of Loma Linda, 213 F.3d 1001, 1005 (8th Cir. 2000)
(providing that the party opposing the motion must be placed on notice that it is being
construed as a request for summary judgment so that the party will “understand that
the burden will be on him to produce affidavits, not merely allegations in pleadings,
to rebut what has become a motion for summary judgment”).
Plaintiff’s Response must include his legal arguments, as well as affidavits,2 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 must also separately file a
Statement of Disputed Facts, which lists: (a) any disagreement he has with the
specifically numbered factual assertions contained in Defendants’ Statement of
Undisputed Facts (docket entry #25); and (b) any other disputed facts that he believes
must be resolved at a hearing or trial.3
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.
Georgia-Pacific, 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).
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 set forth in Defendants’ 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.
IT IS THEREFORE ORDERED THAT:
Plaintiff shall file, within thirty days of the entry of the Order, a
Response to Defendants’ 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.
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 Defendants’ 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 7th day of September, 2011.
UNITED STATES MAGISTRATE JUDGE
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