Opinion
3:19CV00311-DPM-JTR
03-29-2021
NATHAN ZACHARY McMULLAN ADC #554072 PLAINTIFF v. TERRY MAPES, Warden, NEACCC DEFENDANT
ORDER
Defendant Terry Mapes has filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Facts. Docs. 33, 34 & 35. Plaintiff has a right to file a Response to that Motion.
At the summary judgment stage, a plaintiff cannot rest upon mere allegations and, instead, must meet proof with proof. See Fed.R.Civ.P. 56(e). This means that Plaintiff's Response should include his legal arguments, as well as affidavits, prison records, or other evidence establishing that there is a genuine issue of material fact that must be resolved at a hearing or trial. Furthermore, pursuant to Local Rule 56.1, Plaintiff must separately file a “short and concise statement of material facts as to which [he] contends a genuine dispute exists to be tried.” Plaintiff's “Statement of Disputed Facts” must state whether he “agrees” or “disagrees” with the factual statements in each of the numbered paragraphs in Defendant's Statement of Undisputed Facts (Doc. 35). If Plaintiff disagrees with any of the facts in Defendant's Statement of Undisputed Facts, he must : (1) identify each numbered paragraph that contains the facts he disputes; (2) for each paragraph, explain why he disputes those facts; and (3) include a citation to the evidence he is relying on to support his version of the disputed fact. If Plaintiff relies on documents that have been previously filed in the record, he must specifically refer to those documents by docket number and page. The Court will not sift through the file to find support for Plaintiff's factual contentions. See Crossley v. Georgia-Pacific, Corp., 355 F.3d 1112, 1113-14 (8th Cir. 2004) (affirming the grant of summary judgment because a plaintiff failed to properly refer to specific pages of the record that supported his position).
The affidavit must be based upon the personal knowledge of the person executing the affidavit and must be either: (1) sworn and subscribed to by a notary public; or (2) executed under penalty of perjury, as provided for by 28 U.S.C. § 1746.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff has until and including April 29, 2021, to file a Response to Defendant's Motion for Summary Judgment and a separate Statement of Disputed Facts that comply with Fed.R.Civ.P. 56, Local Rule 56.1, and the instructions in this Order.
2. Plaintiff is advised that the failure to timely and properly file a Response and Statement of Disputed Facts will result in: (a) all of the facts in Defendant's Statement of Undisputed Facts being deemed admitted by Plaintiff, pursuant to Local Rule 56.1(c); and (b) the possible dismissal of this action, without prejudice, pursuant to Local Rule 5.5(c)(2).
IT IS SO ORDERED