Thomas, Darreyll v. Kaplan, Roman et al
Filing
34
ORDER denying plaintiff's 30 Motion for Summary Judgment without prejudice to his refiling his motion in accordance with the procedures that are outlined in the pretrial conference order. The briefing schedule set on this motion is stricken. Signed by District Judge Barbara B. Crabb on 4/21/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DARREYLL T. THOMAS,
ORDER
Plaintiff,
14-cv-675-bbc
v.
ROMAN KAPLAN, DAHLIA SULIENE,
KAREN ANDERSON and MICHAEL MIESNER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Darreyll T. Thomas is proceeding on claims that several prison
officials violated the Eighth Amendment and state law by failing to provide him medical care
for injuries arising from a gunshot wound he sustained before his incarceration. At the
preliminary pretrial conference held on February 4, 2015, Magistrate Judge Stephen L.
Crocker set the schedule in this case for trial, including deadlines for filing dispositive
motions. Now plaintiff has filed a motion for summary judgment.
I will deny this motion without prejudice, because plaintiff failed to follow the
procedures as outlined in the Procedure To Be Followed On Motions For Summary
Judgment. This procedure was included with the February 5, 2015 pretrial conference order
but I will include another copy along with this order.
Plaintiff should pay particular
attention to those parts of the procedure that require him to submit proposed findings of
fact in support of his motion and point to admissible evidence in the record to support each
1
factual proposition. In his proposed findings, plaintiff should explain what happened to him,
such as what specific medical problems he experienced, how he sought treatment at the
Columbia Correctional Institution and how defendants responded to his requests. To
support his statements of fact, plaintiff should cite admissible evidence. (The type of
evidence plaintiff may cite is listed in the court’s Procedure To Be Followed On Motions For
Summary Judgment as well as Fed. R. Civ. P. 56.) Also, I will remind plaintiff that in his
proposed findings of fact he does not need to provide legal arguments. He should stick to
telling his story of what happened.
Plaintiff is reminded that the deadline for filing dispositive motions is October 9,
2015. Plaintiff will be free to renew his motion by the October 9, 2015 deadline and in
accordance with the procedure to be followed on motions for summary judgment.
ORDER
IT IS ORDERED that plaintiff Darreyll Thomas’s motion for summary judgment,
dkt. #30, is DENIED without prejudice to his refiling his motion in accordance with the
procedures that are outlined in the pretrial conference order. The briefing schedule set on
2
this motion is stricken.
Entered this 21st day of April, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
3
HELPFUL TIPS FOR FILING
A SUMMARY JUDGMENT MOTION
Please read the attached directions carefully – doing so will save your time and the court’s.
REMEMBER:
1. All facts necessary to sustain a party’s position on a motion for summary judgment
must be explicitly proposed as findings of fact. This includes facts establishing jurisdiction.
(Think of your proposed findings of fact as telling a story to someone who knows nothing
of the controversy.)
2. The court will not search the record for factual evidence. Even if there is evidence
in the record to support your position on summary judgment, if you do not propose a
finding of fact with the proper citation, the court will not consider that evidence when
deciding the motion.
3. A fact properly proposed by one side will be accepted by the court as undisputed
unless the other side properly responds to the proposed fact and establishes that it is in
dispute.
4. Your brief is the place to make your legal argument, not to restate the facts. When
you finish it, check it over with a fine tooth comb to be sure you haven’t relied upon or
assumed any facts in making your legal argument that you failed to include in the separate
document setting out your proposed findings of fact.
5. A chart listing the documents to be filed by the deadlines set by the court for
briefing motions for summary judgment or cross-motions for summary judgment is printed
on the last page of the procedures.
Revised March 2006
4
MEMORANDUM TO PRO SE LITIGANTS
REGARDING SUMMARY JUDGMENT MOTIONS
This court expects all litigants, including persons representing themselves, to follow
this court’s Procedures to be Followed on Motions for Summary Judgment. If a party does
not follow the procedures, there will be no second chance to do so.
Therefore, PAY
ATTENTION to the following list of mistakes pro se plaintiffs tend to make when they
oppose a defendant’s motion for summary judgment:
•
Problem: The plaintiff does not answer the defendant’s proposed facts
correctly.
Solution: To answer correctly, a plaintiff must file a document titled
“Response to Defendant’s Proposed Findings of Fact.” In this document, the
plaintiff must answer each numbered fact that the defendant proposes, using
separate paragraphs that have the same numbers as defendant’s paragraphs.
See Procedure II.D. If plaintiff does not object to a fact that the defendant
proposes, he should answer, “No dispute.”
•
Problem: The plaintiff submits his own set of proposed facts without
answering the defendant’s facts.
Solution: Procedure II.B. allows a plaintiff to file his own set of proposed facts
in response to a defendant’s motion ONLY if he thinks he needs additional
facts to prove his claim.
•
Problem: The plaintiff does not tell the court and the defendant where there
is evidence in the record to support his version of a fact.
Solution: Plaintiff must pay attention to Procedure II.D.2., which tells him
how to dispute a fact proposed by the defendant. Also, he should pay
attention to Procedure I.B.2., which explains how a new proposed fact should
be written.
•
Problem: The plaintiff supports a fact with an exhibit that the court cannot
accept as evidence because it is not authenticated.
Solution: Procedure I.C. explains what may be submitted as evidence. A copy
5
of a document will not be accepted as evidence unless it is authenticated.
That means that the plaintiff or someone else who has personal knowledge
what the document is must declare under penalty of perjury in a separate
affidavit that the document is a true and correct copy of what it appears to be.
For example, if plaintiff wants to support a proposed fact with evidence that
he received a conduct report, he must submit a copy of the conduct report,
together with an affidavit in which he declares under penalty of perjury that
the copy is a true and unaltered copy of the conduct report he received on
such and such a date.
NOTE WELL: If a party fails to respond to a fact proposed by the opposing party,
the court will accept the opposing party’s proposed fact as undisputed. If a party’s response
to any proposed fact does not comply with the court’s procedures or cites evidence that is
not admissible, the court will take the opposing party’s factual statement as true and
undisputed. You’ll find additional tips for making sure that your submissions comply with
the court’s procedures on page 8 of this packet.
R evised M arch 2006
6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PROCEDURE TO BE FOLLOWED ON MOTIONS FOR SUMMARY JUDGMENT
I. MOTION FOR SUMMARY JUDGMENT
A.
Contents:
1.
2.
In a separate document, a statement of proposed findings of fact or a
stipulation of fact between or among the parties to the action, or both; and
3.
Evidentiary materials (see I.C.); and
4.
B.
A motion, together with such materials permitted by Rule 56(c) as the moving
party may wish to serve and file; and
A supporting brief.
Rules Regarding Proposed Findings of Fact:
1.
Each fact must be proposed in a separate, numbered paragraph, limited as
nearly as possible to a single factual proposition.
2.
Each factual proposition must be followed by a reference to evidence
supporting the proposed fact. The citation must make it clear where in the
record the evidence is located. If a party is citing an affidavit of a witness who
has submitted multiple affidavits or the deposition of a witness who has been
deposed multiple times, that party should include the date the cited document
was filed with the court. For example,
1. Plaintiff Smith bought six Holstein calves on
July 11, 2006. Harold Smith Affidavit, filed Jan.
6, 2007, p.1, ¶ 3.
3.
The statement of proposed findings of fact shall include ALL factual
propositions the moving party considers necessary for judgment in the party’s
favor. For example, the proposed findings shall include factual statements
7
relating to jurisdiction, the identity of the parties, the dispute, and the context
of the dispute.
4.
C.
The court will not consider facts contained only in a brief.
Evidence
1.
As noted in I.B. above, each proposed finding must be supported by
admissible evidence. The court will not search the record for evidence. To
support a proposed fact, you may use:
a.
Depositions. Give the name of the witness, the date of the deposition,
and page of the transcript of cited deposition testimony;
b.
Answers to Interrogatories. State the number of the interrogatory and
the party answering it;
c.
Admissions made pursuant to Fed. R. Civ. P. 36. (state the number of
the requested admission and the identity of the parties to whom it was
directed); or
d.
Other Admissions. The identity of the document, the number of the
page, and paragraph of the document in which that admission is made.
e.
Affidavits. The page and paragraph number, the name of the affiant,
and the date of the affidavit. (Affidavits must be made by persons who
have first hand knowledge and must show that the person making the
affidavit is in a position to testify about those facts.)
f.
Documentary evidence that is shown to be true and correct, either by
an affidavit or by stipulation of the parties. (State exhibit number,
page and paragraph.)
II. RESPONSE TO MOTION FOR SUMMARY JUDGMENT
A.
Contents:
1.
A response to the moving party’s proposed finding of fact; and
2.
A brief in opposition to the motion for summary judgment; and
3.
Evidentiary materials (See I.C.)
8
B.
In addition to responding to the moving party’s proposed facts, a responding party may
propose its own findings of fact following the procedure in section I.B. and C. above.
1.
A responding party should file additional proposed findings of fact if it needs
them to defeat the motion for summary judgment.
2.
The purpose of additional proposed findings of fact is to SUPPLEMENT the
moving party’s proposed findings of fact, not to dispute any facts proposed by the
moving party. They do not take the place of responses. Even if the responding
party files additional proposed findings of fact, it MUST file a separate response
to the moving party’s proposed findings of fact.
C.
Unless the responding party puts into dispute a fact proposed by the moving party, the
court will conclude that the fact is undisputed.
D.
Rules Regarding Responses to the Moving Party’s Proposed Factual Statements:
1.
Answer each numbered fact proposed by the moving party in separate paragraphs,
using the same number.
2.
If you dispute a proposed fact, state your version of the fact and refer to evidence
that supports that version. For example,
Moving party proposes as a fact:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July
11, 2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.”
Responding party responds:
“1. Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006
was for one Black Angus bull John Dell Affidavit, Feb. 1, 2007, Exh. A.”
3.
The court prefers but does not require that the responding party repeat verbatim
the moving party’s proposed fact and then respond to it. Using this format for
the example above would lead to this response by the responding party:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July 11,
2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.
“Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006
was for one Black Angus bull.” John Dell Affidavit, Feb. 1, 2007, Exh. A.”
9
4.
E.
When a responding party disputes a proposed finding of fact, the response must
be limited to those facts necessary to raise a dispute. The court will disregard any
new facts that are not directly responsive to the proposed fact. If a responding
party believes that more facts are necessary to tell its story, it should include them
in its own proposed facts, as discussed in II.B.
Evidence
1.
Each fact proposed in disputing a moving party’s proposed factual statement and
all additional facts proposed by the responding party must be supported by
admissible evidence. The court will not search the record for evidence. To
support a proposed fact, you may use evidence as described in Procedure I.C.1.
a. through f.
2.
The court will not consider any factual propositions made in response to the
moving party’s proposed facts that are not supported properly and sufficiently by
admissible evidence.
III. REPLY BY MOVING PARTY
A. Contents:
1.
An answer to each numbered factual statement made by the responding party in
response to the moving party’s proposed findings of fact, together with references
to evidentiary materials; and
2.
An answer to each additional numbered factual statement proposed by the
responding party under Procedure II.B., if any, together with references to
evidentiary materials; and
3.
A reply brief; and
4.
Evidentiary materials (see I.C.)
B.
If the responding party has filed additional proposed findings of fact, the moving party
should file its response to those proposed facts at the same time as its reply, following the
procedure in section II.
C.
When the moving party answers the responding party’s responses to the moving party’s
original proposed findings of fact, and answers the responding party’s additional
proposed findings of fact, the court prefers but does not require that the moving party
repeat verbatim the entire sequence associated with each proposed finding of fact so that
10
reply is a self-contained history of all proposed facts, responses and replies by all parties.
IV. SUR-REPLY BY RESPONDING PARTY
A responding party shall not file a sur-reply without first obtaining permission from the
court. The court only permits sur-replies in rare, unusual situations.
11
M OTION FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)
Deadline 2
Deadline 3
moving party’s motion
moving party’s brief
non-moving party’s response brief
moving party’s reply brief
moving party’s proposed findings of
fact
non-moving party’s response to
moving party’s proposed findings of
fact
moving party’s reply to non-moving
party’s response to moving party’s
proposed findings of fact
non-moving party’s additional
proposed findings of fact
moving party’s response to non-moving
party’s additional proposed findings of
fact, if any.
CROSS M OTIONS FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)
Deadline 2
Deadline 3
defendant’s motion
defendant’s brief
plaintiff’s response brief
defendant’s reply brief
defendant’s proposed findings of
fact
plaintiff’s response to defendant’s
proposed findings of fact
defendant’s reply to plaintiff’s response
to defendant’s proposed findings of fact
plaintiff’s brief
defendant’s response brief
plaintiff’s reply brief
plaintiff’s proposed findings of fact
defendant’s response to plaintiff’s
proposed findings of fact
plaintiff’s reply to defendant’s response
to plaintiff’s proposed findings of fact
plaintiff’s motion
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?