Stockton v. Page

Filing 79

ORDER instructing the Clerk to update the docket sheet to reflect the full and correct names of Defendants Cobbs, Desmute, and Boulden - Mary Cobbs, Majestic Dismute, and Kennie Bolden; and giving Mr. Stockton until 09/23/2024 to file a response to 76 Defendants' motion for partial summary judgment on the issue of exhaustion and a separate statement of disputed facts. Signed by Magistrate Judge Edie R. Ervin on 08/28/2024. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JOSHUA STOCKTON, ADC #169885
V.

PLAINTIFF

NO. 4:23-cv-00131-KGB-ERE

JOE PAGE, et al. 1

DEFENDANTS
ORDER

Defendants have filed a motion for partial summary judgment, a brief in
support, and a statement of undisputed facts arguing that Mr. Stockton failed to
exhaust his administrative remedies against Defendants Page, Cobbs, and Bolden
before filing this lawsuit.2 Docs. 76, 77, 78. Pro se plaintiff Joshua Stockton has a
right to file a response.
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

The Clerk is instructed to update the docket sheet to reflect the full and
correct names of Defendants Cobbs, Desmute, and Boulden – Mary Cobbs, Majestic
Dismute, and Kennie Bolden. Doc. 20.
1

Defendant Dismute does not argue that Mr. Stockton failed to fully exhaust his
claims against her before filing this lawsuit. In addition, Defendants Arkansas Department
of Corrections and Daniels are not parties to the pending motion for partial summary
judgment. I previously recommended that Mr. Stockton’s claims against the Arkansas
Department of Corrections be dismissed based on his failure to state a plausible
constitutional claim for relief. Doc. 14. I also recommended that Mr. Stockton’s claims
against Defendant Daniels be dismissed for failure of service. Those Recommendations
remain pending. Doc. 72.
2

Mr. Stockton’s response should include his legal arguments, as well as affidavits,3
prison records, or other evidence to show that there is a genuine issue of material
fact that must be resolved at a hearing or trial.
In addition, pursuant to Local Rule 56.1,4 Mr. Stockton must separately file a
“separate, short and concise statement of the material facts as to which [he] contends
there is no genuine dispute to be tried.” Mr. Stockton’s statement of disputed facts
must state whether he “agrees” or “disagrees” with the factual statements in each of
the numbered paragraphs in Defendants’ statement of undisputed facts. Doc. 78. If
Mr. Stockton disagrees with any of the facts in Defendants’ statement of undisputed
facts, he must: (1) identify each numbered paragraph that contains the facts he
disputes; (2) for each paragraph, explain why he disputes those facts; and (3) include
a citation to the evidence he is relying on to support his version of the disputed fact.
If Mr. Stockton relies 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 Mr. Stockton’s factual

The affidavit 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, by including the
following statement before the date and signature: “I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and correct.” Additionally, the affidavit
must be based upon the personal knowledge of the person executing the affidavit. The
Court may not consider an affidavit unless it meets these requirements.
3

The Local Rules for the Eastern District of Arkansas are available on the internet.
See https://www.are.uscourts.gov/court-info/local-rules-and-orders/local-rules.
4

2

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).
Defendants’ motion for summary judgment concerns only whether Mr.
Stockton fully and properly exhausted the grievance process with regard to his
pending claims against Defendants Page, Cobbs, and Bolden before filing this
lawsuit. Therefore, Mr. Stockton’s response to the motion should focus on that issue.
IT IS THEREFORE ORDERED THAT:
1.

Mr. Stockton has until September 23, 2024, to file: (1) a response to

Defendants’ motion for partial summary judgment on the issue of exhaustion; and
(2) a separate statement of disputed facts. As to any filing, Mr. Stockton should
attempt to comply with Federal Rule of Civil Procedure 56, Local Rule 56.1, and the
instructions in this Order.
2.

Mr. Stockton is advised that the failure to timely and properly file a

response and statement of disputed facts may result in: (1) all of the facts in
Defendants’ statement of undisputed facts being deemed admitted, pursuant to Local
Rule 56.1(c); and (2) the possible dismissal of Mr. Stockton’s, without prejudice,
pursuant to Local Rule 5.5(c)(2).

3

SO ORDERED 28 August 2024.

___________________________________
UNITED STATES MAGISTRATE JUDGE

4