Carson v. Sharpe et al
ORDER directing defense counsel to serve a copy of the 40 MOTION for Summary Judgment on Plaintiff at his correct address by October 12, 2017, and file a certification for the record when he has done so. Plaintiff is Ordered to file any opposition to the motion for summary judgment, or inform the Court of his decision not to object to Defendant's motion by November 3, 2017. The Clerk is instructed to attach a copy of Fed. R. Civ. P. 56 to the copy of this Order that is served on Plaintiff. Signed by Magistrate Judge Brian K. Epps on 10/06/2017. (thb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
RASHAAD DANIEL CARSON,
Defendant has moved for summary judgment with respect to the claim by Plaintiff,
now an inmate at Hancock State Prison, regarding use of excessive force at Wheeler
Correctional Facility on December 28, 2015. (Doc. no. 40.) However, the Certificate of
Service attached to the motion does not indicate that it was served on Plaintiff at his current
place of incarceration. Therefore, the Court DIRECTS defense counsel to serve a copy of
the motion on Plaintiff at his correct address by October 12, 2017, and file a certification for
the record when he has done so. Plaintiff shall have through and including November 3,
2017, to file any response.
To make sure Plaintiff fully understands the ramifications of Defendant’s motion for
summary judgment should he not file a response, the Court will now reiterate to Plaintiff the
consequences of a motion for summary judgment.1
Once a motion for summary judgment is filed, the opponent should be afforded a
reasonable opportunity to counter the affidavits of the movant. Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985). The reasonable opportunity encompasses not only time to
respond, but notice and an explanation of rights that may be lost if a response is not filed. Id.
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, and demonstrating that there
is an absence of any dispute as to a material fact. Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). Also the moving party may be granted summary judgment if they show the
Court that there is an absence of evidence to support the non-moving party’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party makes this showing, then
they are entitled to a judgment as a matter of law because the non-moving party has failed to
make a sufficient showing on an essential element of his case with respect to which he has
the burden of proof. Id.
This Court in ruling on a summary judgment motion must determine whether under
the governing law there can be but one reasonable conclusion as to the verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Moreover, a mere existence of a
Plaintiff was first informed of the consequences of a summary judgment motion in the
Court’s December 14, 2016 Order. (Doc. no. 9, p. 6.)
scintilla of evidence in support of Plaintiff’s position is not sufficient to defeat a summary
judgment motion; there must be evidence on which the jury could reasonably find for
Plaintiff. See id. at 252. All reasonable doubts, however, must be resolved in favor of the
party opposing summary judgment. Casey Enters., Inc. v. American Hardware Mutual Ins.
Co., 655 F.2d 598, 602 (5th Cir. Unit B Sept. 1981).2 When, however, the moving party’s
motion for summary judgment has pierced the pleadings of the opposing party, the burden
then shifts to the opposing party to show that a genuine issue of fact exists. This burden
cannot be carried by reliance on the conclusory allegations contained within the complaint.
Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir. 1981).
Should Plaintiff not express opposition to Defendant’s motion, the consequences are
these: Any factual assertions made in the affidavits of the party moving for summary
judgment will be deemed admitted by this Court pursuant to Loc. R. 7.5 and Fed. R. Civ. P.
56 unless Plaintiff contradicts the movant’s assertions through submission of his own
affidavits or other documentary evidence, and the motion for summary judgment will be
granted on the grounds that said motion is unopposed. See Loc. R. 7.5.
Accordingly, Plaintiff is ORDERED to file any opposition to Defendant’s motion for
summary judgment, with appropriate supporting affidavits, or to inform the Court of his
decision not to object to Defendant’s motion by November 3, 2017.
To ensure that
Plaintiff’s response is made with fair notice of the requirements of the summary judgment
In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all Fifth
Circuit decisions that were handed down prior to the close of business on September 30, 1981.
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
rule, the Clerk of Court is INSTRUCTED to attach a copy of Fed. R. Civ. P. 56 to the copy
of this Order that is served on Plaintiff.
SO ORDERED this 6th day of October, 2017, at Augusta, Georgia.
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