Eckles v. USA
Filing
17
ORDER that the pro se Petitioner shall have 30 days from the entry of this Order to file her response to 16 Govt's MOTION for Summary Judgment. Petitioner's responses due by 8/13/2012. Petitioner's failure to respond may result in dismissal of 2255 Motion. Signed by District Judge Richard Voorhees on 7/13/12. (Pro se litigant served by US Mail.)(smj)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:11-cv-00068-RLV
(5:05-cr-00009-RLV-DCK-3)
SHONIKA GAIL ECKLES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
)
ORDER
THIS MATTER is before the Court on its own motion following the filing of the
Respondent’s Motion for Summary Judgment. (Doc. 16.)
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 She carries in responding to the
Respondent’s Motion for Summary Judgment. 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.
1
317, 323 (1986) (internal citations omitted). In the present case, the Respondent, in addition to
filing the motion for summary judgment, has filed a response in opposition which contains
argument and supporting evidence. (Docs. 15, 15-1.)
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 Petitioner has any evidence to offer to show that there is a genuine issue for trial, she
must now file it with the 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
2
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.
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 Petitioner to this
Court no later than thirty (30) days from entry of this Order. Petitioner’s failure to respond may
result in Respondent being granted the relief it seeks by way of summary judgment, that is, the
dismissal of the Section 2255 Motion with prejudice.
IT IS, THEREFORE, ORDERED that:
1.
The pro se Petitioner shall have thirty days from entry of this Order to file her
response, including any evidence, to Respondent’s Motion for Summary Judgment. (Doc. 16.)
Petitioner’s failure to respond may result in Respondent being granted the relief it seeks by way
of summary judgment, that is, the dismissal of Petitioner’s Section 2255 Motion with prejudice.
2.
The Clerk is respectfully directed to send a copy of this Order to Respondent and
Petitioner.
Signed: July 13, 2012
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?