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Steven Kent Luker v. Arne Duncan

September 23, 2011

STEVEN KENT LUKER, PLAINTIFF,
v.
ARNE DUNCAN, IN HIS CAPACITY AS SECRETARY OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Friday, 23 September, 2011 03:43:23 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#46) filed by Defendant, Arne Duncan. The pro se Plaintiff, Steven Kent Luker, has not filed a response to the Motion for Summary Judgment. This court has carefully considered Defendant's arguments and the documents filed. Following this careful and thorough consideration, Defendant's Motion for Summary Judgment (#46) is GRANTED.

FACTS

On September 24, 2009, Plaintiff filed a pro se Complaint (#1) against Defendant. Plaintiff also filed a Motion to Proceed in forma pauperis (#2). On October 7, 2009, Magistrate Judge David G. Bernthal entered an Order (#6) and granted Plaintiff's Motion to Proceed in forma pauperis. Plaintiff was therefore allowed to proceed without paying a filing fee. In his pro se Complaint, Plaintiff asked this court to find that Defendant violated his due process right to challenge an offset and assignment of a $250 stimulus payment by the United States Treasury on behalf of the United States Department of Education. On July 19, 2010, Plaintiff filed a pro se Amended Complaint (#22). Plaintiff added an allegation that he demanded a refund and/or hearing regarding the offset of a $64.41 tax refund by the Department of Education. On October 21, 2010, a Discovery Order (#32) was entered in this case and the case was set for a bench trial.

On July 14, 2011, Defendant filed a Motion for Summary Judgment (#46) and Exhibits (#47, #48, #49, #50, #51, #52, #53) in support of the Motion. On July 14, 2011, a Notice (#55) was sent to Plaintiff. The Notice stated:

NOTICE IS HEREBY GIVEN that a case-dispositive motion (such as a motion for summary judgment or motion for judgment on the pleadings) has been filed. See Fed.R.Civ.P.12(b)(6), Fed.R.Civ.P.56; Fed.R.Civ.P12(c),. Please be advised that you have twenty-one (21) days from the date of filing to respond to the motion. If you do not respond, the motion, if appropriate, will be granted and the case will be terminated without a trial. See, generally, Lewis v. Faulkner, 689 F. 2d 100 (7th Cir. 1982); Timms v. Frank, 953 F. 2d 281 (7th Cir. 1992). Under the court's local rules, a motion is deemed to be uncontested if no opposing brief is filed. See L.R. CDIL 7.1(D)(2).

When a motion for summary judgment is made and properly supported, you must not simply rely upon the allegations made in your complaint. Rather, you must respond by affidavit(s) or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, a copy of which is attached. Your response must set forth specific facts showing that there is a genuine issue of material fact for trial. If you do not submit affidavits or other documentary evidence contradicting the defendants' assertions, the defendants' statement of facts will be accepted as true for purposes of summary judgment. See Fed. R. Civ. P 56(e) and L.R. 7.1(attached).

On July 18, 2011, Plaintiff filed a pro se Motion for Sanctions (#56) and a pro se Motion for Extension of Time to Respond to Government's Motion for Summary Judgment (#57). Plaintiff stated that 21 days was inadequate time to prepare a response because he was "flooded" with "over 15 pounds of documents." Plaintiff also stated that he intended to call his treating physician at any hearing and needed adequate time to get a subpoena served on him. Plaintiff asked for at least 90 days to respond. On July 18, 2011, this court entered a text order and denied Plaintiff's Motion for Sanctions. This court also granted in part and denied in part Plaintiff's Motion for Extension of Time. This court granted Plaintiff's request for an extension of time to respond and allowed Plaintiff until September 19, 2011, to file his response. This court denied Plaintiff's request for a hearing on the Motion for Summary Judgment and stated that the court would decide the motion based upon the filings of the parties. This court stated that there will be no need for Plaintiff to subpoena his treating physician.

Plaintiff has not filed a response to the Motion for Summary Judgment and the time allowed for doing so has passed.

ANALYSIS

I. SUMMARY JUDGMENT ...


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