Opinion
1:22-CV-00078-SPB
12-01-2023
RON ALLEN HUNTER JR., Plaintiff v. Z. WAGGONER, C.O., Defendant
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT ECF NO. 110
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
Plaintiff Ron Allen Hunter Jr. has moved for summary judgment. See ECF No. 110. For the reasons stated herein, it is recommended that the motion be DENIED, without prejudice.
II. Report
Under Federal Rule of Civil Procedure 56(a), a party moving for summary judgment must show two things to be entitled to such relief: (1) that “no genuine dispute as to any material fact” remains for trial, and (2) “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). How the movant makes this showing “depends upon which party will bear the burden of persuasion on the challenged claim at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Fed. R. Civ. P. 56(a)). Where the movant would bear the burden of persuasion, “that party must support its motion with credible evidence ... that would entitle it to a directed .verdict if not controverted at trial.” Id. If the movant makes this “affirmative showing,” the “burden of production” then “shifts ... to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a ‘genuine issue' for trial or to submit an affidavit requesting additional time for discovery.” Id. (citing Fed.R.Civ.P. 56(e), (f)). “If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied..Id. at 332.
In this case, Hunter, as the plaintiff, will have the burden of persuasion at trial as to each element of his claims against Defendant Waggoner. See Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003) (at trial, “the plaintiff has both the burden of production and the burden of persuasion for each element of the prima facie case”). Therefore, it is Hunter's burden to support his motion for summary judgment with credible evidence showing that no genuine issue of material fact exists as to each element of his claims and that, based on that evidence, he is entitled to judgment as a matter of law. His pro se status does not relieve him of this threshold burden. See Watson v. Phila. Hous. Auth., 629 F.Supp.2d 481, 485 (E.D. Pa.2009). Hunter's motion and supporting submissions fail to satisfy either prong of his threshold burden when moving for summary judgment.
Hunter's Amended Complaint claims that Waggoner used excessive force against him in violation of his constitutional rights. Specifically, Hunter alleges that Waggoner applied mace against him when he knew his medical conditions precluded such use and that he handcuffed him behind his back despite knowing that that he was suffering from a rib injury. See ECF No. 67, ¶ 2 (Amended Complaint). Rule 56 requires Hunter to support each element of these claims with credible evidence in the form of “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” to demonstrate that Waggoner used excessive force against him. See Fed.R.Civ.P. 56 (c)(1)(A). He has failed to do so. Although he has attached a smattering of medical and records and one page of a discovery response to his various filings, none of these documents supports the basic elements of his claim, let alone the absence of any dispute of material fact. He may not rely upon his Amended Complaint as an affidavit or declaration because it is not verified, presented under oath, or otherwise in a form that would allow it to be treated as such. Although the Court has construed one of Hunter's filings as a Concise Statement of Material Facts, it is comprised primarily of legal conclusions and, to the extent it includes any assertions of fact, they are wholly unsupported by record evidence. See ECF No. 111. A detailed review of Hunter's motion and appendix reveals no basis upon which the Court could find that he is entitled to judgment against Waggoner as matter of law.
For these reasons, it is recommended that Hunter's motion for summary judgment be denied, without prejudice.
III. Notice Concerning Objections to this Report
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).