Banks v. Michigan Department of Corrections et al

Filing 56

ORDER Deeming MOOT Plaintiff's 47 Motion to Strike--Signed by Magistrate Judge Paul J. Komives. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONNIE BANKS (#292796),
CASE NO. 2:13-CV-10199
JUDGE BERNARD A. FRIEDMAN
MAGISTRATE JUDGE PAUL J. KOMIVES

Plaintiff,
v.
DONALD TRAMMELL,
ANGELA DYE-SHELMAN,
PAUL OPARKA,
JEWELL DALEY,
VICKI DORROUGH and
LAVERNE DESHEILDS,
Defendants,
/

ORDER DEEMING MOOT PLAINTIFF’S JULY 21, 2014 MOTION (Doc. Ent. 47) TO
STRIKE DEFENDANT LAVERNE DESHIELDS’S AFFIDAVIT (Doc. Ent. 44-8)
A.

Background
Ronnie Banks (#292796) is currently incarcerated at the MDOC’s Earnest C. Brooks

Correctional Facility (LRF) in Muskegon Heights, Michigan. On January 17, 2013, while
incarcerated at the Muskegon Correctional Facility (MCF) in Muskegon, Michigan, Banks filed
the instant pro se lawsuit against six (6) defendants, each of whom was allegedly employed by
the MDOC at the Ryan Correctional Facility (RRF) in Detroit, Michigan. Doc. Ent. 1 ¶¶ 6-12.1
On February 24, 2014, the six (6) defendants filed a combined answer. Doc. Ent. 42.
B.

Pending Dispositive Motion

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Judge Friedman has referred this case to me for all pretrial matters. Doc. Ent. 8 & 24; see
also Doc. Ent. 10.

On June 23, 2014, defendants Trammell, Oparka, Dye-Shelman, Daley, Dorrough, and
DeShields filed a Fed. R. Civ. P. 56(a) motion for summary judgment. Doc. Ent. 44. Among the
attachments to this motion is the unsigned, unnotarized affidavit of LaVerne DeShields. Doc.
Ent. 44-8 (Exhibit G).
Plaintiff’s response to this motion was due on July 23, 2014. Doc. Ent. 45. On July 21,
2014, plaintiff filed a response (Doc. Ent. 46), a declaration (Doc. Ent. 48), a statement of
disputed factual issues (Doc. Ent. 49) and an index of exhibits (Doc. Ent. 50).
Defendants filed a reply on July 31, 2014 (Doc. Ent. 52), along with a signed and
notarized copy of DeShields’s affidavit (Doc. Ent. 53).
C.

Plaintiff’s Motion to Strike
On July 21, 2014, plaintiff filed a motion (Doc. Ent. 47) to strike defendant LaVerne

DeShields’ affidavit (Doc. Ent. 44-8) “for failing to comply with the requirements for an
affidavit.” Among other things, plaintiff points out that it is not properly certified, is unsigned
and is unsworn. In other words, plaintiff claims, it is not notarized; and it does not comply with
28 U.S.C. § 1746 (“Unsworn declarations under penalty of perjury”).
Defendants filed a response on July 31, 2014 (Doc. Ent. 55), attached to which is a copy
of DeShields’s July 30, 2014 signed and notarized affidavit. Compare Doc. Ent. 44-8 at 1-4,
Doc. Ent. 55-2 at 2-5, Doc. Ent. 53 at 2-5.
Thus, the defect complained of in plaintiff’s July 21, 2014 motion (Doc. Ent. 47) has
been cured.
D.

Order

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Accordingly, plaintiff’s July 21, 2014 motion (Doc. Ent. 47) to strike defendant LaVerne
DeShields’s affidavit (Doc. Ent. 44-8) is DEEMED MOOT.
Defendants’ pending motion for summary judgment (Doc. Ent. 44) will be addressed in a
report and recommendation under separate cover.
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Dated: September 19, 2014

s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on
September 22, 2014, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Paul J. Komives

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