Johnson v. Fields et al
Filing
75
Order that Plaintiff shall respond to the pending motions within 60 days of service of this Order. Failure to file a timely and persuasive response will likely lead to the relief Defendants seek by way of summary judgment re 65 MOTION for Summary Judgment , 67 MOTION for Summary Judgment . Signed by Chief Judge Frank D. Whitney on 07/05/2017. (Pro se litigant served by US Mail.)(thh)
DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:14-cv-38-FDW
ROCKY JOHNSON,
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Plaintiff,
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vs.
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EVA FIELDS, Nurse, et al.,
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Defendants.
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___________________________________ )
ORDER
THIS MATTER is before the Court sua sponte regarding two separately filed summary
judgment motions by Defendant Ray, (Doc. No. 65), and Defendants Allen, Bishop, Gould, and
Salyers, (Doc. No. 67).
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
motions.
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
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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
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show that the affiant or declarant is competent to testify on the matters stated.
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 no later than sixty (60) days of service of this Order, and must be filed in duplicate.
Plaintiff’s failure to respond may result in Defendants being granted the relief Defendants
seek by way of summary judgment.
IT IS, THEREFORE, ORDERED that:
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Plaintiff shall respond to the pending motions within sixty (60) days of service of
this Order. Failure to file a timely and persuasive response will likely lead to the
relief Defendants seek by way of summary judgment.
Signed: July 5, 2017
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