WILBANKS v. SIMMONS

Filing 31

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/18/2014, that Defendant's Motion for Summary Judgment (Docket Entry 20 ) be denied.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DANIEL EARL WILBANKS,

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Plaintiff,
v.
C/O ROBBIE SIMMONS,
Defendant.

1:13CV167

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On August 8, 2014, the undersigned United States Magistrate
Judge

ordered

that

action

on

Defendant’s

Motion

for

Summary

Judgment (Docket Entry 20) be deferred to give Plaintiff an
opportunity to file a validly executed affidavit in support of his
opposition to said Motion. (Docket Entry 29 at 20.) Plaintiff has
now submitted an affidavit that complies with 28 U.S.C. § 1746.
(See Docket Entry 30.) Furthermore, for the reasons set out in the
previous

Order

(see

Docket

Entry

29

at

13-19),

Plaintiff’s

Affidavit would allow a fact finder to conclude that Defendant
intentionally applied force to Plaintiff in an unnecessary and
malicious fashion in contravention of the Eight Amendment.
IT

IS

THEREFORE

RECOMMENDED

that

Defendant’s

Motion

Summary Judgment (Docket Entry 20) be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 18, 2014

for