Summary
striking pro se plaintiff's summary judgment motion for failing to comply with Fed. R. Civ. P. 56 and D. Kan. Rule 56.1
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Case No. 02-3190-JAR.
February 4, 2005
ORDER STRIKING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION TO STRIKE
The Court now considers Plaintiff's Motion for Summary Judgment (Doc.105), Defendant Iverson's Motion to Strike Plaintiff's Motion for Summary Judgment (Doc. 107), and Defendants' Motion to Strike Plaintiff's Motion for Summary Judgment. (Doc. 116.) Plaintiff, a pro se litigant, filed his motion for summary judgment on September 28, 2004. His first heading, entitled "Nature of the Case Before the Court," consists of a recitation of his allegations against the defendants and provides a procedural history of his 42 U.S.C. § 1983 claims against the Defendants. His second heading, entitled "Statement of Facts," consists of five numbered paragraphs, each addressing a party to this case and describing their title and positions at the time "the alleged acts occurred," along with statements that each defendant was acting under color of state law. None of these paragraphs refers the Court to any portion of the record.
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. All inferences must be viewed in the light most favorable to the nonmoving party and it may not make credibility determinations or weigh the evidence.
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.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
In addition, the local rules for the District of Kansas require the moving party to begin the memorandum in support of a motion for summary judgment 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. 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 motions to strike plaintiff's motion for summary judgment, alleging that it does not comply with Fed.R.Civ.P. 56 or D. Kan. R. 56.1. The Court agrees. Even construing plaintiff's motion liberally, the Court is unable to find any reference to specific portions of the record that support his motion. Furthermore, in striking the summary judgment motion, the Court does not preclude plaintiff from prosecuting this lawsuit on the merits, as he is the moving party.
Plaintiff provides no discussion of which facts are uncontroverted. A recitation of the roles of each party in the case or plaintiff's mere allegations is insufficient to fulfill this requirement. The reason that a moving party is required to recite uncontroverted facts, with reference to the record, is so the parties and the Court may discern exactly which facts are at issue and which facts the parties agree upon. The numbered paragraphs that should be set forth in plaintiff's memorandum are supposed to provide a basis for the nonmoving party (i.e. Defendants) to respond by identifying which of those facts are controverted and which facts are uncontroverted. Under the federal and local rules, all facts identified by the parties should contain a reference to the portions of the record that support the factual contentions. Under the rule, the parties may refer to pleadings, affidavits, deposition testimony, answers to interrogatories, or admissions in support of their factual contentions.
The Court urges plaintiff to consult the local rules for this district, as well as Federal Rule of Civil Procedure 56 prior to re-filing any future motion for summary judgment.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Iverson's Motion to Strike (Doc. 107) and Defendants' Motion to Strike (Doc. 116) are GRANTED. Plaintiff's Motion for Summary Judgment (Doc. 105) is hereby stricken for failure to comply with Fed.R.Civ.P. 56 and D. Kan. R. 56.1.
IT IS SO ORDERED.