Abdus-Salaam v. Maddalon et al
ORDER as to 33 MOTION for Summary Judgment. Responses due 4/30/2012. Signed by District Judge Max O. Cogburn, Jr on 4/13/12. (Pro se litigant served by US Mail.) (tmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BILL MADDALON UNIQUE
SOUTHERN ESTATES; CAROLYN
JORDAN; EMPLOYMENT SECURITY
COMMISSION OF NORTH CAROLINA;
and JOSEPH D. PEARLMAN,
THIS MATTER is before the court on defendant Billy Maddalon’s and Carolyn
Jordan’s Motion for Summary Judgment (#33). In accordance with Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), plaintiff, who is proceeding pro se, 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 plaintiff to use in responding
to a Motion for Summary Judgment:
(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). This language means that if the 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
which would otherwise be admissible at trial, i.e., in the form of 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.
IT IS, THEREFORE, ORDERED that plaintiff file and serve his response and any
supporting exhibits, including affidavits, to defendants’ Motion for Summary Judgment (#33)
not later than April 30, 2012.
Signed: April 13, 2012
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