Aiken v. Hall et al
Filing
48
ROSEBORO ORDER directing Plaintiff to respond to 38 MOTION for Summary Judgment. Plaintiff's Response due by 7/16/2019. Signed by Chief Judge Frank D. Whitney on 07/02/2019. (Pro se litigant served by US Mail.) (ni)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00097-FDW
JAY JUNIOR AIKEN,
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Plaintiff,
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vs.
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LINDA LEE,
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Defendant.
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__________________________________________)
ORDER
THIS MATTER is before the Court sua sponte regarding the filing of a summary
judgment motion by Defendant. [Doc. 38].
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises
Plaintiff, who is proceeding pro se, of the heavy burden that he carries in responding to the motion.
Summary judgment shall be granted “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 factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has 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)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings
to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient
evidence from which “a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818
(4th Cir. 1995).
If Plaintiff has any evidence to offer to show that there is a genuine issue for trial, he must
now present it to this Court in a form which would otherwise be admissible at trial, i.e., in the form
of affidavits or unsworn declarations. Federal Rule of Civil Procedure 56(c) provides that:
(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 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.
FED. R. CIV. P. 56(c). An affidavit is a written statement under oath; that is, a statement prepared
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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 no later than fourteen (14) days from the date of this Order and must be filed in
duplicate.
Plaintiff’s failure to respond may result in Defendant being granted the relief Defendant
seeks by way of summary judgment and dismissal of the Complaint with prejudice.
IT IS, THEREFORE, ORDERED that:
Plaintiff shall respond to the pending motion within 14 days of entry of this Order.
Failure to file a timely and persuasive response will likely lead to the dismissal of this
lawsuit.
Signed: July 2, 2019
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