Michalek v. Lunsford et al

Filing 36

ORDER Plaintiff is directed to file, within 30 days of the entry of this Order, a Response to 33 Joint MOTION for Summary Judgment of Patrick Lunsford & Sheriff Bruce Pennington, filed by Bruce Pennington, 35 Statement of Facts (Local Rule 56.1) and 34 Brief in Support filed by Bruce Pennington. Failure to timely file and comply with this order may result in all the facts set forth in the Defendants' summary judgment papers being deemed admitted by Plaintiff or the dismissal of this action, without prejudice. Signed by Magistrate Judge J. Thomas Ray on 01/27/2012. (kcs)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION

PLAINTIFF

BRIAN JUDAH MICHALEK

V.

4: 11CV00685 JMMlJTR
DEFENDANT

PATRICK LUNSFORD, et al.

ORDER
On January 26,2012, Defendants filed a Joint Motion for Summary Judgment
(docket entry #33), a Brief in Support (docket entry #34), and a Statement of
Undisputed Facts (docket entry #35). 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. 5 6( c) & (e). This
means that Plaintiff s Response must include his legal arguments, as well as
affidavits,l jail 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

lAny 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.

specifically numbered factual assertions contained in Defendants' Statement of
Undisputed Facts (docket entry #35); and (b) any other disputed facts that he believes
must be resolved at a hearing or trial. 2
Finally, Plaintiffis advised that ifhe intends to rely upon grievances or records
that previously have been 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 Plaintiffs 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).
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff must file, within thirty (30) days of the entry of this Order,

a Response to Defendants' Joint 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 set forth in this Order.
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 Defendants' summary
2IfPlaintiff 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.
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judgment papers being deemed admitted by Plaintiff, pursuant to Local Rule 56.1 (c);
or (b) the dismissal ofthis action, without prejudice, pursuant to Local Rule 5.5(c)(2).
DATED THIS 2i~· DAY OF January, 2012.

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