McEntyre v. Greene et al
Filing
43
ORDER re 41 MOTION for Summary Judgment , Responses due by 4/17/2015. Signed by Magistrate Judge Dennis Howell on 04/29/2015. (Pro se litigant served by US Mail.)(klb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv238
TERRY LEE MCENTYRE,
)
)
Plaintiff,
)
)
v.
)
)
DUDLEY GREENE and JAMES A.
)
MANIS,
)
)
Defendants.
)
___________________________________ )
ORDER
Pending before the Court is Defendants’ Motion for Summary Judgment
[# 41]. Plaintiff is proceeding pro se and will be advised of his obligation to
respond and the time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff is cautioned that he carries a heavy burden in responding to a motion for
summary judgment. Rule 56(a), Federal Rules of Civil Procedure, provides:
A party may move for summary judgment, identifying each claim or
defense — or the part of each claim or defense — on which summary
judgment is sought. The court shall grant summary judgment 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. The court
should state on the record the reasons for granting or denying the
motion.
Fed. R. Civ. P. 56(a). The rule goes on to provide procedures for a plaintiff to use
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in responding to a defendant’s Motion for Summary Judgment:
(c) Procedures.
(1) Supporting Factual Positions. 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 not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. A party may object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only
the cited materials, but it may consider other materials in
the record.
(4) Affidavits or Declarations.
An affidavit
declaration used to support or oppose a motion must
made on personal knowledge, set out facts that would
admissible in evidence, and show that the affiant
declarant is competent to testify on the matters stated.
or
be
be
or
Fed. R. Civ. P. 56(c). This language means that if Plaintiff has any evidence to offer
to show that there is a genuine issue for trial, Plaintiff must now present it to this
Court in a form that would otherwise be admissible at trial, i.e., in the form of
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affidavits or unsworn declarations. An affidavit is a written statement under oath;
that is, a statement prepared in writing and sworn before a notary public. An
unsworn statement, made and signed under the penalty of perjury, may also be
submitted. Affidavits or statements must be presented by Plaintiff to this Court
within the time provided in this Order for a response and served on counsel for the
moving party as evidenced in a certificate of service attached to Plaintiff’s response.
Failure to respond may result in summary judgment being entered against Plaintiff
by reason of default.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff file and serve his response
and any supporting exhibits, including affidavits, to Defendants’ Motion for
Summary Judgment [# 41] not later than April 17, 2015.
Signed: April 9, 2015
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