United States District Court, M.D. North Carolina
defendants filed a motion for summary judgment, Doc. 61, and
the Magistrate Judge recommended that the motion be granted.
Doc. 68. Plaintiff Paul Lewis objects. Doc. 70. On de novo
review, the Court will overrule the objections and adopt the
Recommendation of the Magistrate Judge in its entirety.
Lewis did not specifically object to the Magistrate
Judge's recommendation that his state law claims be
dismissed. As the Magistrate Judge noted, the brief filed by
Mr. Lewis to oppose summary judgment did not address the
elements of the state law claims, see Doc. 68 at 6,
and the Court has satisfied itself that there was no error in
the Magistrate Judge's conclusion that these claims
should be dismissed. Moreover, the Magistrate Judge
specifically pointed out Local Rule 7.3(k), which addresses
waiver when a party fails to respond to a motion, yet Mr.
Lewis again did not address his state law claims in his
objections despite the opportunity to do so. It is fair to
conclude that he has abandoned these claims. See
Chamberlain v. Securian Fin. Grp., Inc., 180 F.Supp.3d
381, 405 (W.D. N.C. 2016) (finding plaintiff's breach of
contract claim would “be dismissed because Plaintiff
abandoned it” after he “failed to respond to
Defendants' arguments regarding this claim in its Motion
for Summary Judgment” and collecting cases). Either
way, dismissal is appropriate.
his ADA claim, Mr. Lewis did not object to any of the
Magistrate Judge's statements about the applicable law,
and he does not disagree that it is an element of an ADA
claim that a plaintiff must have a physical or mental
impairment that substantially limits one or more major life
activities, or at least a record of or history of being
regarded as having such an impairment. Doc. 68 at 7. Rather,
his objections focus on the Magistrate Judge's conclusion
that there was no evidence Mr. Lewis was disabled.
See Doc. 70.
Lewis has not shown a disputed question of material fact. It
is not enough to survive a summary judgment motion to
identify potential witnesses, as plaintiff has done.
See Doc. 70 at 4-5. A non-movant must point to
actual evidence, and conclusory assertions in a brief or
lists of potential witnesses do not suffice. See
Fed. R. Civ. P. 56(c)(1); Humphreys & Partners
Architects, LP v. Lessard Design, Inc., 790 F.3d 532,
538 (4th Cir. 2015) (noting the court may consider
“materials that would themselves be admissible at
trial, and the content or substance of otherwise
inadmissible materials” if the party shows it will be
possible to put that information into an admissible form
(emphasis added)); Dash v. Mayweather, 731 F.3d 303,
311 (4th Cir. 2013) (“Although the court must draw all
justifiable inferences in favor of the nonmoving party, the
nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference
upon another, or the mere existence of a scintilla of
evidence.” (internal citations omitted)).
Magistrate Judge accurately identified, the defendants
presented compelling evidence that Mr. Lewis is not disabled
as that term is used in the ADA, and as further explained by
the Magistrate Judge, Mr. Lewis did not produce evidence to
the contrary. Doc. 68 at 7-9. His assertion that his
medication briefly limits his morning activities does not
rise to this level, and he has not provided any evidence to
support his claim of a hearing loss. Mr. Lewis claims he has
medical evidence that he is disabled, but the letter provided
as proof on this point merely states that another doctor
“judged him to be disabled;” it said nothing as
to how this disability might substantially limit major life
activities. Doc. 66-5. Counsel's factual assertions in a
brief, see, e.g., Doc. 70 at 2, are not evidence,
and a nonmovant must produce more than a mere allegation of
the existence of a material fact to survive summary judgment.
See Butler v. Drive Auto. Indus. of Am., Inc., 793
F.3d 404, 408 (4th Cir. 2015); Dash, 731 F.3d at
Lewis complains that the Magistrate Judge ignored
“numerous hand-written statements made by multiple
individuals from the gym.” Doc. 70 at 3-4. Even
assuming those statements are relevant to the reason the
defendants terminated his gym membership, they are silent as
to whether Mr. Lewis was disabled as defined by the ADA.
See Doc. 66-1.
Mr. Lewis claims that the Magistrate Judge “has
absolutely no authority” to decide whether Mr. Lewis is
disabled because that issue will be resolved in “a
final decision.” Doc. 70 at 3. This objection is
befuddling. Mr. Lewis must prove he is disabled as defined by
the statute as an element of his case, and courts deal with
such questions every day on summary judgment. The summary
judgment motion was appropriately before the Magistrate Judge
for a recommended ruling pursuant to 28 U.S.C. § 636. At
summary judgment, the judge's inquiry unavoidably asks
whether reasonable jurors could find by a preponderance of
the evidence that the plaintiff is entitled to a verdict.
Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).
Whether Mr. Lewis had presented evidence sufficient to prove
he was disabled as defined by the ADA-an element of his cause
of action-was plainly a question the Magistrate Judge had
authority to answer in the form of a recommendation.
Lewis is not entitled to a trial merely because he wants one.
He must present evidence from which the jury could reasonably
rule in his favor. Here, Mr. Lewis has not directed the
Court's attention to evidence establishing the elements
of his ADA discrimination claim, for the reasons fully and
correctly explained by the Magistrate Judge. Summary judgment
for the defendants is appropriate.
Court has reviewed the portions of the Magistrate Judge's
Opinion to which objection was made and has made a de novo
determination which is in accord with the Opinion. The Court
adopts the Recommendation in full.
reasons stated by the Magistrate Judge as supplemented by
this Order, it is ORDERED that the
defendant's motion for summary judgment, Doc. 61, is
 In his objections, Mr. Lewis refers to
another letter from a doctor and purports to quote it and
attach it, Doc. 70 at 2, but the Court has not located the
letter in the record.
 Neither in his summary judgment
materials or in his objections did Mr. Lewis provide
citations to the location in the record of the evidence he
contends raise genuine issues of material fact. See
Doc. 39 at ¶ 1 (court order advising parties that
“factual assertions unsupported by citation to specific
evidence in the record will be disregarded” and that
“a citation to a multi-page exhibit must contain a pin
cite directing the Court's attention to the specific
page”); Fed.R.Civ.P. 56(c)(1) (providing that a party
must support assertions by “citing to particular parts
of materials in the record”). While the Court has ...