Myers v. USA
Filing
10
ORDER instructing the Petitioner that he has 30 days from entry of order to file his response, including any evidence to 9 Respondent's MOTION for Summary Judgment. Responses due by 10/3/2011. Signed by District Judge Richard Voorhees on 9/2/11. (Pro se litigant served by US Mail.)(smj)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:11cv65
(5:06cr33)
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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____________________________________)
JEFFREY LYNN MYERS,
ORDER and NOTICE
THIS MATTER is before the Court upon Respondent’s Motion for Summary Judgment.
(Doc. No. 9).
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises
Petitioner, who is proceeding pro se, of the heavy burden that he carries in responding to
Respondent’s Motion for Summary Judgment.
Rule 56, Federal Rules of Civil Procedure, provides in relevant parts:
(c)(1) A party asserting that a fact ... 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
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the absence or presence of a genuine dispute,
or that an adverse party cannot produce
admissible evidence to support that fact.
...
(c)(4) 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)(1)(A) and (B); 56(c)(4) (2010).
This language means that if Petitioner has any evidence to offer to show that there is a
genuine factual dispute for resolution, he must now present it to this Court in a form which
would otherwise be admissible at trial, that is, in the form of affidavits or unsworn declarations.
An affidavit is a written statement, made on personal knowledge and sworn before a notary
public. Lumoa v. Potter, 351 F. Supp. 2d 426, 430 (M.D.N.C. 2004) (quoting Pfeil v. Rogers,
757 F.2d 850, 859 (7th Cir. 1985). An unsworn declaration is one made in writing and subscribed
by the declarant as true under penalty of perjury. 28 U.S.C. § 1746. As a last resort, Petitioner
may show by affidavit or unsworn declaration that, for specified reasons, he cannot present facts
essential to justify his opposition to Respondent’s Motion for Summary Judgment. Fed. R. Civ.
P. 56(d).
Petitioner is further advised that if he fails to properly support an assertion of fact or fails
to properly address Respondent’s assertion of fact as required by Rule 56(c), the Court may
consider the fact undisputed for purposes of the motion; grant summary judgment if the motion
and supporting materials – including the facts considered undisputed – show that the movant is
entitled to it; or issue any other appropriate order. Fed. R. Civ. P. 56(e)(2) through (4).
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Petitioner’s affidavits or unsworn declaration must be presented to this Court within thirty
(30) days of the entry of this Order.
IT IS, THEREFORE, ORDERED that Petitioner has thirty (30) days from the entry of
this Order to file his response, including any evidence, to Respondent’s Motion for Summary
Judgment.
The Clerk is directed to send copies of this Order and Notice to the parties.
SO ORDERED.
Signed: September 2, 2011
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