Opinion
Case No. 03-3194-JWL.
October 21, 2004
MEMORANDUM ORDER
Plaintiff Nathaniel W. Ellibee is a prisoner in the custody of the State of Kansas and is incarcerated at El Dorado Correctional Facility. He has filed this lawsuit challenging the lawfulness of charges to his inmate trust fund account for payments to the Kansas Crime Victims Compensation Fund. Plaintiff seeks relief pursuant 42 U.S.C. § 1983.
On September 14, 2004, plaintiff, proceeding pro se, filed a motion for summary judgment. The substance of plaintiff's motion states only that the "Martinez Report fails to assert any material evidence that controverts the claim or evidence alleged in the complaint" and that "the Answer fails to assert any evidence or argument of law to controvert the claims or evidence alleged in the complaint and the affirmative defenses offered are bare assertions unsupported by any argument or authority." Based on these two statements, plaintiff contends that he is entitled to summary judgment on his claims.
Defendant has moved to strike plaintiff's motion for summary judgment on the grounds that plaintiff's motion fails to comply with the local rules of this court. Specifically, defendant highlights that plaintiff's motion is not accompanied by a brief or memorandum in support, see D. Kan. R. 7.1(a); 56.1(a), and does not contain the requisite "concise statement of material facts to which the movant contends no genuine issue exists." See D. Kan. R. 56.1(a). It is clear from a review of plaintiff's motion that he has not complied with the court's local rules governing the filing and form of motions for summary judgment and, thus, the court strikes the motion on this basis.
The court also notes that plaintiff, even assuming he had complied with the local rules, would not be entitled to summary judgment in any event. That is, the basis for plaintiff's motion — that neither the Martinez report nor defendant's Answer set forth evidence sufficient to controvert plaintiff's claims — lacks merit. The mere fact that the Martinez report and the answer fail to controvert plaintiff's claims is insufficient to warrant summary judgment in favor of plaintiff. Defendant is not limited to the Martinez report and his answer in terms of defending himself against plaintiff's claims. Moreover, it is plaintiff's burden as the party bringing this lawsuit to come forward with evidence proving his claims; it is not defendant's burden to disprove plaintiff's claims.
In sum, then, the court will strike plaintiff's motion for summary judgment without prejudice. Plaintiff may file another motion for summary judgment at such time as he is able to come forward with uncontroverted evidence demonstrating that he is entitled to summary judgment.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to strike (doc. #24) is granted and plaintiff's motion for summary judgment (doc. #25) is hereby stricken without prejudice to plaintiff refiling a motion for summary judgment at a later date.
IT IS SO ORDERED.