United States District Court, S.D. Illinois
J. DONALD HENSON, SR., Plaintiff,
DEPARTMENT OF HEALTH AND HUMAN SERVICES and FOOD & DRUG ADMINISTRATION, Defendants.
MEMORANDUM & ORDER
R. Herndon Judge.
matter comes before the Court in light of defendants'
motion for summary judgment against pro se plaintiff
J. Donald Henson (Doc. 89). The Federal Rules of Civil
Procedure forbid a district court from acting on a summary
judgment motion without giving the nonparty a reasonable
opportunity to respond. Fed.R.Civ.P. 56. A motion for summary
judgment should not be granted against a pro se
litigant unless the pro se litigant receives clear
notice of the need to file affidavits or other responsive
materials and of the consequences of not responding. See
Timms v. Frank, 953 F.2d 281, 284 (7th Cir. 1992). This
“notice” should include a short, plain statement
of the need to respond to a summary judgment motion, giving
both the text of Rule 56(e) and an explanation of the rule in
ordinary English. Id. If opposing counsel fails to
provide the requisite notice then the district court should
do so. Id.
the Court must provide plaintiff Henson with the proper
notice as defendants have not. Thus, although plaintiff
Henson has filed a response to the pending motion for summary
judgment (Doc. 91), the Court DIRECTS plaintiff Henson to
Federal Rule of Civil Procedure 56, particularly Rule 56(e).
Rule 56(e) states:
(e) Failing to Properly Support or Address a Fact. If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials-including the facts considered undisputed--show
that the movant is entitled to it; or
(4) issue any other appropriate order.
the Court ADVISES plaintiff Henson that the failure to
respond to the evidence presented in support of
defendants' motion for summary judgment with evidence of
his own may result in the dismissal of his case with
prejudice in favor of defendants. Specifically, any factual
assertion will be taken as true by the Court unless plaintiff
submits his own affidavits or other documentary evidence
contradicting the assertion. In other words, plaintiff Henson
cannot merely rely upon the allegations of his complaint to
survive the motion for summary judgment. See Bryant v.
Madigan, 84 F.3d 246, 248 (7th Cir. 1996). A copy of
Rule 56 of the Federal Rules of Civil Procedure is attached
to this Order.
light of the above notice, The Court ALLOWS plaintiff
Ledbetter up to and including January 24, 2017, to respond to
the pending motion for summary judgment with any additional