Reynolds v. Shanahan

Filing 8

ORDER directing petitioner to respond within 30 days to re 7 Respondent's MOTION for Summary Judgment. Petitioner's responses due by 6/17/2013. Signed by Chief Judge Robert J. Conrad, Jr on 5/17/13. (Pro se litigant served by US Mail.)(smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-cv-60-RJC
WILLIAM L. REYNOLDS,
Petitioner,
v.
LEWIS SMITH,
Administrator, Albemarle
Correctional Institution,
Respondent.

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ORDER

THIS MATTER is before the Court on its own motion following the Respondent’s filing
of a motion for summary judgment. (Doc. No. 7)
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 addressing
Respondent’s responses and Motion for Summary Judgment. (Doc. Nos. 6 and 7)
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
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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.
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, he
must now file it to 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.

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(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 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 file a proper
response to Respondent’s motion for summary judgment could result in an Order granting
Respondent’s prayer for relief, that is, dismissal of Petitioner’s 2254 petition with prejudice.
IT IS THEREFORE ORDERED that Petitioner shall have thirty (30) days from the
entry of this Order to file a response to Respondent’s Motion for Summary Judgment.
Signed: May 17, 2013