Henson v. Department of Health and Human Services et al

Filing 109

ORDER providing pro se plaintiff Henson notice re 89 MOTION for Summary Judgment filed by Food & Drug Administration, Department of Health and Human Services. In light of this notice, the Court ALLOWS plaintiff up to and including January 24, 2017, to respond to the pending motion for summary judgment with any additional materials he feels are relevant and necessary to the dispute. Signed by Judge David R. Herndon on 1/10/17. (Attachments: # 1 Exhibit Rule 56)(lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
J. DONALD HENSON, SR.,
Plaintiff,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES and FOOD & DRUG
ADMINISTRATION,

No. 14-cv-908-DRH-DGW

Defendants.
MEMORANDUM & ORDER
HERNDON, District Judge:
This matter comes before the Court in light of defendants’ motion for
summary judgment against pro se plaintiff J. Donald Henson (Doc. 89).

The

Federal Rules of Civil Procedure forbid a district court from acting on a summary
judgment motion without giving the nonparty a reasonable opportunity to
respond. Fed. R. Civ. P. 56. A motion for summary judgment should not be
granted against a pro se litigant unless the pro se litigant receives clear notice of
the need to file affidavits or other responsive materials and of the consequences of
not responding. See Timms v. Frank, 953 F.2d 281, 284 (7th Cir. 1992). This
“notice” should include a short, plain statement of the need to respond to a
summary judgment motion, giving both the text of Rule 56(e) and an explanation
of the rule in ordinary English.

Id.

If opposing counsel fails to provide the

requisite notice then the district court should do so. Id.
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Here, the Court must provide plaintiff Henson with the proper notice as
defendants have not. Thus, although plaintiff Henson has filed a response to the
pending motion for summary judgment (Doc. 91), the Court DIRECTS plaintiff
Henson to FEDERAL RULE

OF

CIVIL PROCEDURE 56, particularly Rule 56(e). Rule

56(e) states:
(e) Failing to Properly Support or Address a Fact. If a party fails to
properly support an assertion of fact or fails to properly address another
party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Further, the Court ADVISES plaintiff Henson that the failure to respond to
the evidence presented in support of defendants’ motion for summary judgment
with evidence of his own may result in the dismissal of his case with prejudice in
favor of defendants. Specifically, any factual assertion will be taken as true by the
Court unless plaintiff submits his own affidavits or other documentary evidence
contradicting the assertion. In other words, plaintiff Henson cannot merely rely
upon the allegations of his complaint to survive the motion for summary

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judgment. See Bryant v. Madigan, 84 F.3d 246, 248 (7th Cir. 1996). A copy of
Rule 56 of the Federal Rules of Civil Procedure is attached to this Order.
In light of the above notice, The Court ALLOWS plaintiff Ledbetter up to
and including January 24, 2017, to respond to the pending motion for summary
judgment with any additional materials he feels are relevant and necessary to the
dispute.
IT IS SO ORDERED.
Signed this 10th day of January, 2017.

Digitally signed
by Judge David
R. Herndon
Date: 2017.01.10
15:20:03 -06'00'
United States District Judge

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