Diab v. Doe et al

Filing 51

MEMORANDUM OPINION AND ORDER denying 49 MOTION for Summary Judgment by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICHARD DIAB,
Plaintiff,
v.

No. 16-CV-01002-MCA-GJF

FNU BACA, KEN SMITH,
FNU WESTERFIELD,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Richard Diab’s Motion To Enter Summary
Judgement, filed on August 15, 2017. [Doc. 49] Plaintiff was incarcerated at the time he filed
his civil rights complaint, appears pro se, and is proceeding in forma pauperis. For the reasons
explained below, Plaintiff’s motion for summary judgment will be denied without prejudice. To
the extent that Plaintiff moves for the entry of default judgment against Defendants Smith,
Westerfield, and Baca, Plaintiff’s motion also will be denied.
On August 15, 2017, Plaintiff moved for summary judgment against Defendants Smith,
Westerfield, and Baca because they had not yet “responded to the notice sent and waiver of
service.” [Doc. 49] Plaintiff contends that the alleged failure to file a timely response is an
acknowledgement of “what the plaintiff can prove if we go to a jury trial and that is that the
defendants cannot deny with material facts that the claims brought against them are true and
indisputable.” [Doc. 49 at 1] On September 6, 2017, Plaintiff also filed notice of his intent to
file a motion for default judgment under Rule 55 of the Federal Rules of Civil Procedure. [Doc.
50] Plaintiff states that he intends to seek default judgment because Defendants Smith,

Westerfield, and Baca “did not respond or defend any allegations of the complaint the notice and
waiver of service sent him by the court.” [Doc. 50 at 1]
A party moving for summary judgment bears the burden to “show[] 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). Rule 56(c) of the Federal Rules of Civil Procedure provides, in
relevant part, that:
A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
(B) showing that the materials cited do no establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Additionally, Local Rule 56.1 of the Local Civil Rules of the United
States District Court of the District of New Mexico require a party moving for summary
judgment to file a written memorandum that sets “out a concise statement of all of the material
facts as to which the movant contends no genuine issue exists. The facts must be numbered and
must refer with particularity to those portions of the record upon which the movant relies.”
D.N.M.LR-Civ. 56.1(b).
Although Plaintiff is a pro se litigant whose filings must be construed liberally, Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), the United States Court of Appeals for the Tenth
Circuit nonetheless “has repeatedly insisted that pro se parties follow the same rules of procedure
that govern other litigants,” Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005) (internal quotation marks and citation omitted). Plaintiff’s motion for summary

2

judgment fails to number the alleged undisputed material facts and fails to support those facts
with citations to the record or other admissible evidence. Because Plaintiff’s motion does not
comply with Rule 56 of the Federal Rules of Civil Procedure or Rule 56.1 of the Local Civil
Rules of Procedure, it will be denied without prejudice.
To the extent that Plaintiff’s motion liberally may be construed as a motion for default
judgment, it also will be denied. Rule 55(a) of the Federal Rules of Civil Procedure authorizes
the Clerk of Court to enter default “[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise . . . .” Fed. R. Civ. P. 55(a). Defendants Baca, Smith, and Westerfield waived service
of process and timely filed their answer to the complaint on August 11, 2017. [See Doc. 48] See
Fed. R. Civ. P. 4(d)(3) (“A defendant who, before being served with process, timely returns a
waiver need not serve an answer to the complaint until 60 days after the request was sent . . . .”).
According to the Certificate of Service, a copy of the answer was mailed to Plaintiff via first
class mail at his address of record. [Doc. 48 at 13] Because Defendants timely filed a response
to the complaint, Plaintiff is not entitled to entry of default under Rule 55.
IT IS THEREFORE ORDERED that Plaintiff’s Motion To Enter Summary Judgement
[Doc. 49] is DENIED without prejudice.

______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

3