Vanden Heuvel v. Zwicky et al

Filing 86

ORDER signed by Judge J P Stadtmueller on 3/5/10 denying without prejudice 67 defendants' Motion for Summary Judgment; if defendants wish to file a properly supported motion for summary judgment they shall do so on or before 4/5/10, plaintiff must respond to any motion filed on or before 5/5/10, and any reply must be filed on or before 5/19/10. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
K IT VANDEN HEUVEL, P l a i n t if f, v. J A M E S ZW IC K Y , MICHAEL MURPHY, SHERI GRAEBER, MICHELE CRAW F O R D , MARY JO PLEUSS, and MRS. ZW IC K Y , D e fe n d a n ts . C a s e No. 07-C-992

ORDER
T h e plaintiff, Kit Vanden Heuvel, is proceeding in forma pauperis on claims u n d e r 42 U.S.C. § 1983. Now before the court is the defendants' motion for

s u m m a ry judgment. The defendants submit that they are entitled to summary ju d g m e n t because: (1) defendant Sgt. James Zwicky did not violate the plaintiff's E ig h th amendment rights when he searched the plaintiff on November 22, 2005; (2) d e fe n d a n t Crawford did not violate the plaintiff's Fourteenth Amendment rights b e c a u s e she did not terminate him from his employment or the Earned Release P r o g ra m and, in any event, he had no due process rights with respect to either; and (3 ) there is no evidence that these defendants conspired and retaliated against the p la in tiff due to his allegations regarding Sgt. Zwicky. In support of their motion, the d e fe n d a n ts rely solely on the affidavits of defendants Sheri Graeber, Mary Jo Pleuss, J a m e s Zwicky, and Michele Crawford.

In considering a motion for summary judgment, a court may consider any m a te ria ls that would be admissible or usable at trial, including properly authenticated a n d admissible documents. Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2 0 0 0 ). Federal Rule 56(e) provides, in part: "If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the a ffid a vit." See also Scott v. Edinburg, 346 F.3d 752, 760 n.7 (7th Cir. 2003). In each of the defendants' affidavits, the affiant states that it is based not only o n his or her personal knowledge, but also on a "review of institutional records." The a ffia n t s go on to detail information presumably from such institutional records, in c lu d in g specific conduct report, inmate complaint, report numbers, and quotations. Y e t Crawford's affidavit is the only one with any exhibits, though they are not d is p o s itive .1 Thus, the defendants' affidavits are deficient and inadmissible on s u m m a ry judgment. It is unclear to the court whether the defendants' failure to c o m p ly with Rule 56(e) was inadvertent or otherwise. In any event, the court is o b lig e d to deny their motion for summary judgment. The court will provide the defendants with another opportunity to file a properly n o tic e d and supported motion for summary judgment. Such motion must be filed on o r before Monday, April 5, 2010. The plaintiff must respond to any motion filed on

Attached to Crawford's affidavit are the "Earned Release Program Mem o of Agreem e n t" and the " D r u g Abuse Correctional Center Earned Release Program Contract," both signed by Crawford and the p l a i n t if f .

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o r before Wednesday, May 5, 2010. W e d n e s d a y, May 19, 2010. A c c o r d in g ly ,

Any reply must be filed on or before

IT IS ORDERED that the defendants' motion for summary judgment (Docket # 6 7 ) be and the same is hereby DENIED without prejudice; and. IT IS FURTHER ORDERED that, if the defendants wish to file a properly s u p p o rte d motion for summary judgment, they shall do so on or before Monday, Ap r il 5, 2010. The plaintiff must respond to any motion filed on or before

W e d n e s d a y, May 5, 2010. Any reply must be filed on or before Wednesday, M a y 19, 2010. D a te d at Milwaukee, W is c o n s in , this 5th day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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