Summary
striking plaintiff's motion for summary judgment for failing to comply with Fed. R. Civ. P. 56 and D. Kan. R. 56.1
Summary of this case from Hale v. ViettiOpinion
Case No. 02-3233-JAR.
January 11, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION TO STRIKE
The court now considers Plaintiff's Motion for Summary Judgment (Doc. 41), and Defendants' Motion to Strike Plaintiff's Motion for Summary Judgment. (Doc. 42.) Plaintiff, a pro se litigant, filed his motion for summary judgment on September 30, 2004. He moves for summary judgment on "all claims" and sets forth two numbered paragraphs in support of his motion. First, he states that the Martinez Report (Doc. 27) does not assert evidence that controverts his claims. Second, he states that the Answer (Doc. 34) does not provide any factual or legal basis to controvert his claims.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law." The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact. The burden may be met by showing that there is no evidence to support the nonmoving party's case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
Id. at 325; 106 S. Ct. at 2554.
In addition, the local rules for the District of Kansas require the moving party to (1) file a memorandum in support of a motion for summary judgment, and (2) begin the memorandum in support with "a concise statement of material facts as to which the party contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies."
D. Kan. R. 7.1, 56.1.
D. Kan. R. 56.1(a).
A pro se litigant's pleadings are to be liberally construed and are held to a less stringent standard. "Courts must take added precautions before ruling on a motion for summary judgment when a pro se litigant is involved . . . especially when enforcing these [technical] requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits." Nevertheless, the court is not authorized to become the advocate for the pro se litigant. "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Moreover, plaintiffs are not excused from compliance with fundamental rules of procedure because they are proceeding pro se. Pro se litigants must follow rules of procedure, including local rules.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Hass v. U.S. Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994)
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995).
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940; Campbell v. Meredith Corp., 260 F. Supp. 2d 1087, 1097 n. 10 (D. Kan. 2003).
Defendants filed a motion to strike Plaintiff's motion for summary judgment, alleging that it does not comply with Fed.R.Civ.P. 56 and D. Kan. R. 56.1. The court agrees. Even construing the Plaintiff's motion liberally, the court is unable to find any reference to specific portions of the record that support his motion. Plaintiff provides no discussion of which facts are uncontroverted. A general reference to the Martinez Report and Answer is insufficient to comply with the rules governing summary judgment motions. Furthermore, in striking the summary judgment motion, the court does not preclude Plaintiff's ability to prosecute this lawsuit on the merits, as he is the moving party. The court urges Plaintiff to consult the local rules for this district, as well as the Federal Rule of Civil Procedure 56 prior to re-filing any future motion for summary judgment.
IT IS THEREFORE ORDERED BY THE COURT that Defendants' Motion to Strike (Doc. 42) is GRANTED. Plaintiff's Motion for Summary Judgment (Doc. 41) is hereby stricken for failure to comply with Fed.R.Civ.P. 56 and D. Kan. R. 56.1.