Sterling v. United States of America

Filing 61

MEMORANDUM OPINION AND ORDER granting 51 MOTION for Summary Judgment filed by United States of America. (Ordered by Senior Judge Sidney A Fitzwater on 3/31/2020) (Senior Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PHILLIP STERLING, SR.,
Plaintiff,
VS.
UNITED STATES OF AMERICA,
Defendant.

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§ Civil Action No. 3:18-CV-0526-D
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MEMORANDUM OPINION
AND ORDER
Defendant United States of America’s (the “government’s”) February 28, 2020 motion
for summary judgment—to which plaintiff Phillip Sterling, Sr., (“Sterling”) has not
responded—is granted, and this action is dismissed with prejudice by judgment filed today.1
This is an action by Sterling involving claims against the government pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2674. It arises from a left partial nephrectomy
performed by medical staff of the Veterans Affairs North Texas Health Care System, which
allegedly resulted in permanent neurological damage. The government moves for summary

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written opinion[]
issued by the court” because it “sets forth a reasoned explanation for [the] court’s decision.”
It has been written, however, primarily for the parties, to decide issues presented in this case,
and not for publication in an official reporter, and should be understood accordingly.

judgment on all of Sterling’s claims. Sterling has not responded to the motion.2
When, as here, the summary judgment movant will not have the burden of proof on
a claim at trial, it can obtain summary judgment by pointing the court to the absence of
evidence on any essential element of the nonmovant’s claims. See Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the movant does so, the nonmovant must go beyond his
pleadings and designate specific facts demonstrating that there is a genuine issue for trial.
See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam). An issue is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovant’s failure to produce proof as to any essential element of a claim renders all other
facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.

2

The government filed its motion on February 28, 2020. Sterling’s response was due
March 20, 2020. See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion
must be filed within 21 days from the date the motion is filed.”).
The court recognizes that court proceedings and deadlines in this district (primarily
in criminal cases) have been continued in recent days due to the COVID-19 pandemic. But
no such relief has been granted in this civil case; Sterling’s counsel has made no attempt by
written motion or request (or, so far as the court is aware, by other means) to obtain a
continuance of the deadline to respond; and the court has waited over ten days after the
expiration of the deadline set by local civil rule to decide the government’s motion.
And although there was a discovery dispute in which the magistrate judge ordered the
government to amend a discovery response, Sterling made no attempt to request relief under
Fed. R. Civ. P. 56(d) from his obligation to respond to the government’s summary judgment
motion. Moreover, the government asserts—and Sterling did not dispute—that it complied
with its obligations on March 11, 2020, nine days before Sterling’s summary judgment
response was due. Because Sterling has not availed himself of relief under Rule 56(d), the
court concludes that there is no cause to defer a ruling on the government’s motion for
summary judgment.
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Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory where the nonmovant fails to
meet this burden. Little, 37 F.3d at 1076.
The government has pointed in its motion to the absence of evidence to support each
of Sterling’s claims. The burden has therefore shifted to Sterling to present evidence that
creates a genuine issue of material fact. Sterling has not responded to the government’s
motion. Although his failure to respond does not permit the court to enter a “default”
summary judgment, see, e.g., Tutton v. Garland Independent School District, 733 F. Supp.
1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary judgment nonmovant who does
not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute
summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex.
1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th
Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Rule 56(e)(2), (3).
Because the government has pointed to the absence of evidence to support Sterling’s
claims and he has not produced evidence in response to the motion, the government is
entitled to summary judgment dismissing Sterling’s action with prejudice.

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Accordingly, the government’s February 28, 2020 motion for summary judgment is
granted, and this action is dismissed with prejudice by judgment filed today.
SO ORDERED.
March 31, 2020.

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

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