JOSEPH V GORMAN
ORDER ADOPTING 100 REPORT AND RECOMMENDATION: granting Def's 86 Motion for Summary Judgment; and denying as moot Pla's 102 Request for Trial. Signed by SENIOR JUDGE MAURICE M PAUL on 9/27/2013. (jws)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
JEAN E. JOSEPH,
CASE NO. 4:11-cv-00034-MP-CAS
OFFICER R. GORMAN,
This cause comes on for consideration upon the Magistrate Judge's Second Report and
Recommendation dated April, 2013, recommending that Defendant’s Motion for Summary
Judgment (Doc. 86) be granted. (Doc. 100). The parties have been furnished a copy of the
Report and Recommendation and have been afforded an opportunity to file objections pursuant
to Title 28, United States Code, Section 636(b)(1). Plaintiff has done so. (Doc. 106). Having
considered the Report and Recommendation, and Plaintiff’s timely objections thereto, I have
determined that the Report and Recommendation should be adopted.
After the filing of defendant's motion for summary judgment, the Court repeatedly
advised Plaintiff of his obligation to respond to Defendant’s Motion for Summary Judgment and
explained over nearly three pages Plaintiff’s burden as the non-moving party. (Doc. 88). This
explanation notified Plaintiff, inter alia, that he may “not rely upon the ‘mere allegation or
denials’ in the pleadings,” but must present acceptable evidentiary material, including “sworn
affidavits, sworn documents, or other evidence indicating the existence of a genuine issue of
material fact.” (Doc. 88). Plaintiff, in the order at Doc. 99, was even given additional time to
file a response in opposition due to his failure to keep his mailing address updated. (See Docs.
94, 96 and 97). Plaintiff failed to respond with the time constraints set out by the Magistrate
Judge, and when he did respond 21 days past the deadline, he filed a "Request for Trial", Doc.
102, which did not provide the evidentiary support necessary to oppose summary judgment, as
described by the Magistrate Judge.
Thus, as the Magistrate Judge correctly notes, Defendant’s Motion for Summary
Judgment (Doc. 86) is essentially unopposed, since Plaintiff failed to file a response in
opposition thereto before the March 1, 2013, deadline established by the Court. To date,
Plaintiff has failed to file a proper response in opposition and has not established or plead
excusable neglect as to such failure. Even if Plaintiff’s Request for Trial (Doc. 102) and
Response to the Report and Recommendation (Doc. 106) could be considered a response in
opposition to Defendant’s Motion for Summary Judgment, several factors militate against
consideration thereof. First, these documents would be untimely since they were filed well after
the March 1, 2013, deadline established by the Court for Plaintiff to file his response in
opposition. Second, the documents fail to include acceptable evidentiary material to indicate the
existence of a genuine issue of material fact. This Court has painstakingly reviewed Plaintiff’s
handwritten argument, comments and margin notes in both the Request for Trial (Doc. 102) and
the Response to the Report and Recommendation (Doc. 106), but such efforts could not – and do
not – serve as an adequate response to a properly supported motion for summary judgment. This
was made clear to Plaintiff in the Court’s order dated January 10, 2013. (Doc. 88).
As the Magistrate Judge warned in the order at Doc. 99, in light of the numerous chances
afforded to Plaintiff as a pro se litigant thus far in this case, this Court declines to extend further
leniency. Defendant’s Motion for Summary Judgment (Doc. 86) is procedurally unopposed, and
even granting liberal consideration of Plaintiff’s attempted responses thereto, this Court must
grant Defendant’s motion for summary judgment.
Accordingly, it is hereby ORDERED AND ADJUDGED:
The Magistrate Judge’s Report and Recommendation (Doc. 100) is adopted and
incorporated by reference in this order.
Defendant’s Motion for Summary Judgment (Doc. 86) is GRANTED.
Plaintiff’s Request for Trial (Doc. 102) is DENIED as moot.
DONE AND ORDERED this 27th
day of September, 2013
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
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