Emmingham v. Seltzer

Filing 42

ORDER: Denying Defendant's Motion for Summary Judgment 31 , but giving Seltzer leave to refile his motion with the required documentation in support of his factual asertions. Any such motion is due no later than 7/2/10. Signed on 6/14/10 by Judge Michael W. Mosman. (ljl)

1 2 3
4

5
6
7

8 9 10 11 12 13 14 v. PER MICHAEL SELTZER, e t a l . , Defendants.
MOSMAN~

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON PORTLAND D I V I S I O N JOHN EMMINGHAM, Plaintiff, No. CV-08-6329-HU

15

ORDER

16

17
18 19

District Judge:

P l a i n t i f f John Emmingham b r i n g s t h i s 42 U.S.C. § 1983 a c t i o n against several defendants, including Per Michael Seltzer. 20 naming 21 allegations are generally based on S e l t z e r ' s having received mail 22 from p l a i n t i f f , then incarcerated, followed by Seltzer requesting 23 prison 24 Seltzer. 25 S e l t z e r , who i s r e p r e s e n t i n g h i m s e l f i n t h i s a c t i o n , f i l e d a 26 motion for summary judgment on January 28, 2010 (dkt #31). In a employees to order plaintiff to stop sending mail to several defendants and raising several claims, the While

27
March 10, 2010 Minute Order established a briefing schedule and an 28 1 - ORDER

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

April 5, 2010 under advisement date. the motion.

Plaintiff never responded to

S e l t z e r f i l e d a motion, a memorandum i n support, and a concise statement of material fact. But, he f a i l s to offer any admissible

evidence in support of his factual assertions that he, as a private citizen, cannot be sued under section 1983. He submits no

affidavit or declaration that the Court can accept for the purposes of adjudicating the motion. employed by a state prison, Thus, while he may never have been m a y b e .a p r i v a t e c i t i z e n , and his

a c t i o n s may w e l l be a s r e p r e s e n t e d i n t h e c o n c i s e s t a t e m e n t , t h e y f a i l to establish an admissible factual record upon which t h i s Court can award summary judgment, even in the face of no opposition from p l a i n t i f f . Federal Rule of Civil Procedure 56 allows a defending party to move f o r summary judgment, with o r without s u p p o r t i n g a f f i d a v i t s . Fed. R. Civ. P. 56(b). The moving party bears the initial

responsibility of informing the court of the basis of i t s motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, i f any,' which i t believes demonstrate the absence of a genuine issue of material fact." U.S. 317, 323 (1986) R. C i v . P. 56(c) (2) Celotex Corp. v. C a t r e t t , 477

( q u o t i n g F e d . R. C i v . P . 5 6 ( c ) ) ; s e e a l s o F e d . ("judgment sought should be rendered i f the

pleadings, the discovery and disclosure materials on f i l e , and any a f f i d a v i t s show t h a t there i s no genuine issue as t o any material fact and that the movant i s e n t i t l e d to judgment as a matter of law"). As t h i s C o u r t ' s L o c a l R u l e s o f C i v i l P r o c e d u r e m a k e c l e a r , 2 - ORDER

1 2

" [a]

party must cite to a particular affidavit,

deposition,

or

other document

(indicating both page and line number references

3
4

where appropriate) supporting the party's statement, acceptance, or denial of the material fact." L.R. 56(c) (1). Without such

5

supporting, admissible evidence, the facts asserted by Seltzer do not warrant the entry of judgment in his favor. CONCLUSION Defendant Seltzer's motion for summary judgment (#31) is

6
7

8 9 10 11 12 13

denied, but Seltzer is given leave to refile his motion with the required documentation in support of his factual assertions. such motion i s due no l a t e r than July 2, 2010. I T I S SO ORDERED. Dated this Any

( ~ day O f ~

, 2010.

14 15
16 17 18 19 20 21 22 23 24
25

Judge

26
27 28

3 - ORDER