United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant's
Motion for Summary Judgment [Doc. 33].
Plaintiff Ronald McClary, proceeding pro se, brings
this action pursuant to 42 U.S.C. § 1983 for the
violation of his civil rights while incarcerated at the
Lanesboro Correctional Institution (“Lanesboro
C.I.”).[Doc. 1]. The Complaint asserts an
excessive force claim against Lanesboro CI employee Officer
FNU Graham (“Officer Graham”) for allegedly
slamming Plaintiff's finger in the food passage door of
Plaintiff's cell. [Id.]. The Complaint survived
this Court's initial review under 28 U.S.C. §§
1915(e)(2) and 1915A and Plaintiff was allowed to proceed
with his excessive force claim. [Doc. 9].
January 25, 2019, Officer Graham moved for summary judgment
of Plaintiff's Complaint pursuant to Rule 56 of the
Federal Rules of Civil Procedure. [Doc. 33]. In support of
his summary judgment motion, Officer Graham submitted a
memorandum, his own Declaration, and the Declarations of a
several other employees of Lanesboro CI, including certain
prison records. [Docs. 33-1 through 33-5, 35].
January 28, 2019, this Court entered an order in accordance
with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), advising Plaintiff of the requirements for filing a
response to the summary judgment motion and of the manner in
which evidence could be submitted to the Court. [Doc. 36].
The Plaintiff was specifically advised that he “may not
rely upon mere allegations or denials of allegations in his
pleadings to defeat a summary judgment motion.”
[Id. at 2]. Rather, he must support his assertion
that a fact is genuinely disputed by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulation (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials.” [Id. at 2
(citing Fed.R.Civ.P. 56(c)(1)(a)]. The Court further advised
An affidavit is a written statement under oath; that is, a
statement prepared in writing and sworn before a notary
public. An unsworn statement, made and signed under the
penalty of perjury, may also be submitted. Affidavits or
statements must be presented by Plaintiff to this Court no
later than fourteen (14) days from the date of this Order and
must be filed in duplicate.
[Doc. 36 (citing Fed.R.Civ.P. 56(c)(4))]. The Plaintiff filed
13 handwritten pages in response to Officer Graham's
summary judgment motion. [Doc. 38]. These consist of three
documents: (1) “Plaintiff McClary Opposition to
defendant Graham Motion for Summary Judgment” [Doc.
38], consisting of seven pages; (2) “Memorandum in
Opposition of Defendant Motion for Summary Judgment”
[Doc. 38-1], consisting of four pages; and (3)
“Plaintiff Appendix in Opposition of Defendant Motion
for Summary Judgment” [Doc. 38-2], consisting of two
pages plus attachments. None of these documents, however, are
signed under oath or under penalty of perjury. Moreover, they
all consist of argument as to why the Defendant's
evidence should not be believed and how corrupt the prison
administration is, giving examples of other unrelated cases.
The closest thing to a factual assertion among these
documents is actually in the Memorandum [Doc. 38-1] in which
the Plaintiff states “McClary has a broke finger and
nobody can say where it happened but McClary. Dec. 30 2015
(sic)” [Id. at 2]. Plaintiff,
however, presents no evidence as to what happened, resting
solely upon his allegations. Plaintiff also attached to his
Appendix two unauthenticated prison policies, as well as
documents that appear to relate to other § 1983 cases
Plaintiff has brought in the United States District Court for
the Eastern District of North Carolina.[See Doc.
38-2]. The policies, however, if authentic, do not support
Plaintiff's assertions. Likewise, the documents
pertaining to other claims prove nothing regarding this
claim. Thus, in terms of evidentiary forecast, the
Defendant's is unrefuted.
STANDARD OF REVIEW
judgment shall 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). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id.
movant has the “initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal citations
this initial burden is met, the burden shifts to the
nonmoving party. The nonmoving party “must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 322 n.3. The nonmoving party
may not rely upon mere allegations or denials of allegations
in his pleadings to defeat a motion for summary judgment.
Id. at 324. Rather, the nonmoving party must oppose
a proper summary judgment motion with citation to
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
…, admissions, interrogatory answers, or other
materials” in the record. See id.;
Fed.R.Civ.P. 56(c)(1)(a). Namely, the nonmoving party must
present sufficient evidence from which “a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for
trial.'” Ricci v. DeStefano, 129 S.Ct.
2658, 2677 (2009) (quoting Matsushita v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).