United States District Court, S.D. Georgia, Dublin Division
K. EFPS UNITED STATES MAGISTRATE JUDGE
has moved for summary judgment with respect to the claim by
Plaintiff, now an inmate at Hancock State Prison, regarding
use of excessive force at Wheeler Correctional Facility on
December 28, 2015. (Doc. no. 40.) However, the Certificate of
Service attached to the motion does not indicate that it was
served on Plaintiff at his current place of incarceration.
Therefore, the Court DIRECTS defense counsel
to serve a copy of the motion on Plaintiff at his correct
address by October 12, 2017, and file a certification for the
record when he has done so. Plaintiff shall have through and
including November 3, 2017, to file any response.
sure Plaintiff fully understands the ramifications of
Defendant's motion for summary judgment should he not
file a response, the Court will now reiterate to Plaintiff
the consequences of a motion for summary
motion for summary judgment is filed, the opponent should be
afforded a reasonable opportunity to counter the affidavits
of the movant. Griffith v. Wainwright, 772 F.2d 822,
825 (11th Cir. 1985). The reasonable opportunity encompasses
not only time to respond, but notice and an explanation of
rights that may be lost if a response is not filed.
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment always
bears the initial responsibility of informing the court of
the basis for its motion, and demonstrating that there is an
absence of any dispute as to a material fact. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970). Also the
moving party may be granted summary judgment if they show the
Court that there is an absence of evidence to support the
non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the moving party
makes this showing, then they are entitled to a judgment as a
matter of law because the non-moving party has failed to make
a sufficient showing on an essential element of his case with
respect to which he has the burden of proof. Id.
Court in ruling on a summary judgment motion must determine
whether under the governing law there can be but one
reasonable conclusion as to the verdict. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Moreover,
a mere existence of a scintilla of evidence in support of
Plaintiff's position is not sufficient to defeat a
summary judgment motion; there must be evidence on which the
jury could reasonably find for Plaintiff. See id. at
252. All reasonable doubts, however, must be resolved in
favor of the party opposing summary judgment. Casey
Enters., Inc. v. American Hardware Mutual Ins. Co., 655
F.2d 598, 602 (5th Cir. Unit B Sept. 1981). When, however,
the moving party's motion for summary judgment has
pierced the pleadings of the opposing party, the burden then
shifts to the opposing party to show that a genuine issue of
fact exists. This burden cannot be carried by reliance on the
conclusory allegations contained within the complaint.
Morris v. Ross, 663 F.2d 1032, 1033 (11th Cir.
Plaintiff not express opposition to Defendant's motion,
the consequences are these: Any factual assertions made in
the affidavits of the party moving for summary judgment will
be deemed admitted by this Court pursuant to Loc. R. 7.5 and
Fed.R.Civ.P. 56 unless Plaintiff contradicts the movant's
assertions through submission of his own affidavits or other
documentary evidence, and the motion for summary judgment
will be granted on the grounds that said motion is unopposed.
See Loc. R. 7.5.
Plaintiff is ORDERED to file any opposition
to Defendant's motion for summary judgment, with
appropriate supporting affidavits, or to inform the Court of
his decision not to object to Defendant's motion by
November 3, 2017. To ensure that Plaintiff's response is
made with fair notice of the requirements of the summary
judgment rule, the Clerk of Court is
INSTRUCTED to attach a copy of Fed.R.Civ.P.
56 to the copy of this Order that is served on Plaintiff.
Plaintiff was first informed of the
consequences of a summary judgment motion in the Court's
December 14, 2016 Order. (Doc. no. 9, p. 6.)
In Bonner v. City of Prichard,
the Eleventh Circuit adopted as binding precedent all Fifth
Circuit decisions that were handed down prior to the close of
business on September 30, 1981. 661 F.2d ...