Gause v. Cooper

Filing 15

ORDER re 13 MOTION for Summary Judgment , ROSEBORO ORDER Setting Response Deadline re: 13 MOTION for Summary Judgment . ( Responses due by 12/14/2016). Signed by Chief Judge Frank D. Whitney on 11/10/2016. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00631-FDW
WALTER TIMOTHY GAUSE,

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Petitioner,
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vs.
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ROY COOPER,
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Respondent.
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____________________________________)

ORDER

THIS MATTER is before the Court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975). Petitioner Walter Timothy Gause filed a Petition for Writ of Habeas Corpus, see 28
U.S.C. § 2254, on September 26, 2016. Respondent has filed an Answer, Motion for Summary
Judgment, and Memorandum in Support. (Doc. Nos. 12-14.)
The Court is required to notify Petitioner, who is proceeding pro se, of his rights and
responsibilities with respect to Respondent’s Motion for Summary Judgment. See Roseboro,
528 F.2d at 310. Summary judgment shall be granted if the party making the motion “shows that
there is no genuine issue of material fact and the [moving party] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine factual dispute exists “if the evidence is such
that a reasonable jury could return a verdict for the . . . party [opposing the motion for summary
judgment].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). A fact is material only
if it might affect the outcome of the case under governing law. Id.
The party moving for summary judgment, Respondent in this case, 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,

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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 party opposing the motion for summary
judgment.
Petitioner has the right to respond to the Motion for Summary Judgment. To defeat the
Motion, Petitioner may not rely upon mere allegations or denials of allegations in his pleadings.
See id. at 324. Instead, Petitioner “must set forth specific facts showing that there is a genuine
issue for trial.” Id. at 322 n.3 (emphasis added). In other words, he must identify sufficient
evidence in the record from which “a reasonable jury could return a verdict [in his favor].”
Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818
(4th Cir. 1995).
The rules for opposing a motion for summary judgment can be found in Federal Rule of
Civil Procedure 56(c), which 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.

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(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.
Id. at Fed. R. Civ. P. 56(c). 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.
Petitioner shall have thirty (30) days from entry of this Order to file a response to the
Motion for Summary Judgment. As previously discussed, Petitioner should identify any material
facts he believes are in genuine dispute and support his assertions as outlined in Federal Rule of
Civil Procedure 56(c). Failure to file a proper response to the summary judgment Motion could
result in an order granting Respondent’s request for relief; that is, denial and dismissal of
Petitioner’s § 2254 petition with prejudice.
IT IS, THEREFORE, ORDERED that Petitioner shall have thirty (30) days from entry
of this Order to file a response to Respondent’s Motion for Summary Judgment (Doc. No. 13).
IT IS FURTHER ORDERED that pursuant to Rule 2(a) of the Rules Governing Section
2254 Cases in the United States District Courts, the Clerk of Court shall replace Roy Copper
with Frank L. Perry as Respondent in this action.
Signed: November 10, 2016

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