WINFELD v. MAZURKIEWICZ et al

Filing 39

ORDER re 38 Reply to Response to Motion filed by K. B. KOLESAR, JOSEPH F. MAZURKIEWICZ, RELIC, PHILLIPS, BUNCH. Plaintiff shall file a responsive concise statement and memorandum in opposition to Defendants' Motion for Summary Judgment in com pliance with the Federal Rules of Civil Procedure and Local Rule 56 no later than September 4, 2012. No extensions will be granted. Plaintiff is advised that Defendants' Concise Statement of Material Facts will be considered undisputed if he fails to comply with this Order within the time specified herein. Signed by Magistrate Judge Lisa Pupo Lenihan on August 21, 2012.(kcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY R. WINFIELD,
Plaintiff,
v.
JOSEPH F. MAZURKIEWICZ, et al.,
Defendants.

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Civil Action No. 11 - 584
Chief Magistrate Judge Lisa Pupo Lenihan

ORDER
Pending before the Court is a Motion for Summary Judgment filed by Defendants on
December 1, 2011. (ECF No. 29.) Defendants also filed a Brief in Support thereof (ECF No.
31) and a Concise Statement of Material Facts (ECF No. 30). In response, Plaintiff filed a
Response to the Motion for Summary Judgment (ECF No. 36) and a Response to the Concise
Statement of Material Facts (ECF No. 38). Defendants claim that because Plaintiff did not cite
to any evidence of record in his Response to their Concise Statement of Material Facts in
violation of Local Rule 56, all factual averments contained in their Concise Statement should be
deemed admitted for purposes of their Motion for Summary Judgment. (ECF No. 38 at ¶ 5.)
They further point out that Plaintiff’s response to their Motion for Summary Judgment does not
contain any legal reasoning or factual argument at all, also in violation of Local Rule 56. (ECF
No. 38 at ¶ 4.)
Federal Rule of Civil Procedure 56 states in pertinent part
(c)

Procedures

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(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)

Material 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.

The Federal Rules of Civil Procedure further provide that “[i]f a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the
fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if
the motion and support materials – including the facts considered undisputed – show that the
movant is entitled to it; or (4) issue any other appropriate order.” Fed. R. Civ. P. 56(e).
Local Rule 56 states in pertinent part:
C. Opposition Requirements. Within 30 days of service of the motion for
summary judgment, the opposing party shall file:

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1. A Responsive Concise Statement: A separately filed concise
statement, which responds to each numbered paragraph in the
moving party's Concise Statement of Material Facts by:
(a) admitting or denying whether each fact
contained in the moving party's Concise Statement
of Material Facts is undisputed and/or material;
(b) setting forth the basis for the denial if any fact
contained in the moving party's Concise Statement
of Material Facts is not admitted in its entirety (as to
whether it is undisputed or material), with
appropriate reference to the record (See LCvR
56.B.11 for instructions regarding format and
annotation); and
(c) setting forth in separately numbered paragraphs
any other material facts that are allegedly at issue,
and/or that the opposing party asserts are necessary
for the court to determine the motion for summary
judgment;
2. Memorandum in Opposition: The memorandum of law in
opposition to the motion for summary judgment must address
applicable law and explain why there are genuine issues of
material fact to be tried and/or why the moving party is not entitled
to judgment as a matter of law; and
3. Appendix: Documents referenced in the Responsive Concise
Statement shall be included in an appendix. (See LCVR 56.B.32
for instructions regarding the appendix).
Moreover, pursuant to Local Rule 56.E, alleged material facts set forth in the moving
party’s Concise Statement of Material Facts or in the opposing party’s Responsive Concise

1. The pertinent portion of LCVR 56.B.1 reads: “A party must cite to a particular pleading, deposition, answer to
interrogatory, admission on file or other part of the record supporting the party’s statement, acceptance, or denial of
the material fact.”
2. LCVR 56.B.3 reads as follows:
3. Appendix. Documents referenced in the Concise Statement shall be included in an appendix.
Such documents need not be filed in their entirety. Instead, the filing party may extract and
highlight the relevant portions of each referenced document. Photocopies of extracted pages, with
appropriate identification and highlighting, will be adequate.

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Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for
summary judgment be deemed admitted unless specifically denied or otherwise controverted by
a separate concise statement of the opposing party. See Enigh v. Miller, Civil No. 08-1726, 2010
WL 2926213 (W.D. Pa. July 23, 2010) (collecting cases).
Because Plaintiff is proceeding pro se in this matter, the Court feels that it necessary to
give Plaintiff the opportunity to address the deficiencies noted by Defendants by filing a
responsive concise statement of material facts and memorandum in opposition to summary
judgment in compliance with the Federal Rules of Civil Procedure and Local Rule 56. However,
because Defendants filed their Motion for Summary Judgment in December 2011, and the
Motion has been pending for more than eight months, Plaintiff will only be given until
September 4, 2012, by which to file a responsive concise statement and memorandum in
compliance with the Rules.
Plaintiff should also be aware that summary judgment is appropriate where the moving
party shows “there is no genuine issue as to any material facts and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Therefore, Plaintiff is advised that to avoid
summary judgment, he cannot rest solely on the allegations in his complaint. He is required to
“go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A plaintiff must point to
concrete evidence in the record that supports each and every essential element of his case. Id. at
322. Thus, the mere fact that Plaintiff’s allegations, if true, state a claim is an insufficient basis
for this Court to deny Defendants’ Motion for Summary Judgment.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff shall file a responsive concise statement and
memorandum in opposition to Defendants’ Motion for Summary Judgment in compliance with
the Federal Rules of Civil Procedure and Local Rule 56 no later than September 4, 2012. No
extensions will be granted. Plaintiff is advised that Defendants’ Concise Statement of Material
Facts will be considered undisputed if he fails to comply with this Order within the time
specified herein.
Dated: August 21, 2012

/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
Chief United States Magistrate Judge

cc:

Anthony R. Winfield
GX6771
2237 Bryn Manor
Apt. 209
Philadelphia, PA 19131
Via U.S. Mail

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