Mack-Bey v. Hicks et al
ORDER directing plf to respond within 21 days to dfts' 33 MOTION for Summary Judgment . Signed by District Judge Robert J. Conrad, Jr on 3/3/2015. (Pro se litigant served by US Mail.)(cbb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
FNU HICKS, KELLY PENNELL,
THIS MATTER comes before the Court on review of Defendants’ motion for summary
judgment. (Doc. No. 33)
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 addressing Defendants’
response and motion for summary judgment.
Summary judgment shall be granted “if the movant shows that there is no genuine issue
of 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 (1996). 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.
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
(citing Fed. R. Civ. P. Rule 56(e)). 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.
“Thus, if the evidence is ‘merely colorable’ or ‘not significantly probative,’ a motion for
summary judgment may be granted.” Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
818 (4th Cir. 1995) (quoting Anderson, 477 U.S. at 249-50).
If Plaintiff has any evidence to offer to show that there is a genuine issue for trial, he
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 declarations submitted under penalty of perjury. 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 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 to 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 21 days from entry of this Order. Plaintiff’s failure to file a proper response
to Defendants’ motion for summary judgment could result in an Order granting Defendants’
prayer for relief, that is, dismissal of this civil action with prejudice.
IT IS THEREFORE ORDERED that Plaintiff shall have twenty-one (21) days from the
entry of this Order to file a response to the Defendants’ Motion for Summary Judgment. Failure
to file a proper response may result in entry of an order granting Defendants’ motion for
summary judgment and dismissal of this civil action with prejudice.
Signed: March 3, 2015
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