Scales v. Noonan et al
ORDER signed by Magistrate Judge William E Duffin on 1/7/2022 GRANTING 73 Defendant's Motion for Summary Judgment. This case is DISMISSED. Judgment to be entered. (cc: all counsel and mailed to pro se Plaintiff)(lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PHILLIP AVERY SCALES,
Case No. 19-CV-1382
PATRICK NOONAN, et al.,
DECISION AND ORDER
Plaintiff Phillip Avery Scales, who is representing himself, brings this lawsuit
under 42 U.S.C. § 1983. Scales alleges that the defendants purposely kept him in the
segregation unit during his various stays at the Racine County Jail for over a five-year
period. The defendants filed a motion for summary judgment (ECF No. 73). The
parties have consented to the jurisdiction of a magistrate judge. (ECF Nos. 8, 28.)
At the outset, the defendants, in their reply brief, note that Scales failed to
comply with the district’s local rules governing motions for summary judgment. Civil
Local Rule 56(b)(2) outlines what a party opposing a motion for summary judgment
must file in response:
(A) a memorandum of law;
(B) a concise response to the moving party’s statement of
proposed findings of fact that must contain
a reproduction of each numbered paragraph in the
moving party’s statement of facts followed by a
response to each paragraph, including, in the case
of any disagreement, specific references to the
Case 2:19-cv-01382-WED Filed 01/07/22 Page 1 of 5 Document 83
affidavits, declarations, parts of the record, and
other supporting materials relied upon, and
a statement, consisting of short numbered
paragraphs of any additional facts that require the
denial of summary judgment, including references
to the affidavits, declarations, parts of the record,
and other supporting materials relied upon to
support the facts described in that paragraph . . . .
(C) any opposing affidavits, declarations, and other materials
referred to in Fed. R. Civ. P. 56(c).
Civ. L.R. 56(b)(2) (emphasis added). Scales’s response is a two-page document entitled
“Motion Opposing Defendants [sic] Summary Judgment.” (ECF No. 79.) In his
response, Scales states that the defendants’ facts as a whole are inaccurate but does
not specifically state why. (Id. at 1.) At most, he states that he will be able to show at
trial that the defendants violated his constitutional rights. (Id. at 2.)
This response, in addition to not complying with the local rules, is wholly
deficient. While district courts may overlook a plaintiff’s noncompliance with local
rules by construing the limited evidence in the light most favorable to the plaintiff,
and can construe pro se submissions leniently, there is no requirement they do so.
Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016); see also Stevo v. Frasor, 662 F.3d
880, 887 (7th Cir. 2011) (recognizing that district courts are entitled to insist on strict
compliance with the local rules). More importantly, the leniency with which the court
construes pro se submissions does not relieve pro se plaintiffs of their obligation to
show that genuine issues of material fact exist that preclude the entry of summary
judgment for the movant.
On several occasions Scales was made aware of what was required of him to
respond to summary judgment. The scheduling order issued by the court on November
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9, 2020, contained the relevant Civil Local Rules and Federal Rules of Civil Procedure.
(ECF No. 30.) The court also enclosed a guide with its scheduling order entitled,
“Answers to Prisoner Litigants’ Common Questions” that had information, written in
an easy-to-understand manner, that explains what a summary judgment motion is
and how a plaintiff should respond to such a motion. Also, the defendants provided
Scales with the relevant rules of procedure when they filed their motion for summary
judgment. (ECF No. 73.) Additionally, the same day the defendants filed their motion
for summary judgment, the court sent a notice and order to Scales that stated in
In responding to the motion, Scales must respond to each of the
proposed findings of fact by agreeing with each proposed fact or
explaining why he disagrees with a particular proposed fact. If
he does not indicate one way or the other, the court will assume
that he agrees with the proposed fact. Scales must support
every disagreement with a proposed fact by citing to evidence.
He can do that by relying on documents that he attaches to his
response or by telling the court his version of what happened in
an affidavit or an unsworn declaration under 28 U.S.C. §1746.1
An unsworn declaration is a way for a party to tell his side of
the story while declaring to the court that everything in the
declaration is true and correct. Scales must also respond to the
legal arguments in the brief.
(ECF No. 78 at 1-2.) The notice and order also informed Scales that, if he did not
respond to the defendants’ motion, there “may be sufficient cause for the court to grant
the motion as a sanction for noncompliance with Civil L.R. 56 and this order.” (Id. at
2.) The court also stated that, if Scales needed more time to prepare his response
materials, he could ask for an extension of time. (Id.)
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In short, Scales had ample opportunity and the means to properly respond to
the defendants’ motion for summary judgment, but he failed to submit any affidavits,
sworn declarations, or other admissible documentary evidence supporting his
arguments, or even substantively respond to the defendants’ arguments. He was also
made aware of the consequences should he fail to follow the rules. As such, the court
accepts the defendants’ proposed findings of fact as unopposed. The court has reviewed
the defendants’ motion, brief in support, and the undisputed facts, see Fed. R. Civ. P.
56(e)(2), and concludes that the defendants are entitled to summary judgment.
Accordingly, the defendants’ motion is granted, and the case is dismissed.
NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants’
motion for summary judgment (ECF No. 73) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED. The Clerk of
Court will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal
this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this
court a notice of appeal within 30 days of the entry of judgment. See Federal Rules of
Appellate Procedure 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being able to
meet the 30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment
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under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court
cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion
under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The court cannot
extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin this 7th day of January, 2022.
BY THE COURT
WILLIAM E. DUFFIN
United States Magistrate Judge
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