BARRIOS v. MARBERRY et al
ENTRY denying Plaintiff's 23 Motion for Summary Judgment. Signed by Judge William T. Lawrence on 2/16/2012.(SMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Medical Administrator, et al.,
Entry Denying Plaintiff’s Motion for Summary Judgment
Summary judgment is appropriate 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). "[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of 'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Pursuant to Rule 56(c)(4) of the Federal Rules of
Civil Procedure, “An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.”
Here, the plaintiff seeks resolution of his Eighth Amendment claim through
the entry of summary judgment, but the materials supporting the motion are rife
with hearsay, are unauthenticated documents, and are materials which do not meet
that standard of Rule 54(c)(4). Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560,
562 (7th Cir. 1996) (“a party may not rely upon inadmissible hearsay in an affidavit
or deposition to oppose a motion for summary judgment.”); Pfeil v. Rogers, 757 F.2d
850, 862 (7th Cir. 1985) (affidavit testimony containing legal argument, unsupported
suspicions and hearsay should be disregarded). Materials which do not comply with
the standard of Rule 56(e) are disregarded. Ziliak v. AstraZeneca LP, 324 F.3d 518,
520 (7th Cir. 2003)( [A] party's failure to comply with summary judgment evidentiary
requirements is traditionally remedied . . . by excluding the non-conforming
submission and deeming the opposing party's proposed findings of fact admitted and
then determining whether those facts entitle the moving party to judgment as a
matter of law). Expressions of an affiant's opinion or his legal conclusion "are totally
ineffectual, and are not to be given any consideration or weight whatsoever." G.D.
Searle & Co. v. Chas. Pfizer & Co., Inc., 231 F.2d 316, 318 (7th Cir. 1956); see also
Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (“The object of [Rule
56(e)] is not to replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit.”).
Once the inadequate supporting materials are disregarded, the plaintiff has
failed in his initial burden of demonstrating that there is no genuine dispute as to
any material fact and he is entitled to judgment as a matter of law. Accordingly, the
plaintiff’s motion for summary judgment  is denied.
IT IS SO ORDERED.
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
McKean – FCI
P.O. Box 8000
Bradford, PA 16701
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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