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Abbott v. LeMarr

United States District Court, S.D. Illinois

January 3, 2018

JAMES ABBOTT, Plaintiff,
v.
DEPUTY LeMARR, et al., Defendants.

          ORDER AND FEDERAL RULE OF CIVIL PROCEDURE 56 NOTICE

          HON. REONA J. DALY UNITED STATES MAGISTRATE JUDGE

         Defendants in this matter have filed a motion to dismiss, or, in the alternative, motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 in which they argue that they are entitled to judgment as a matter of law on one or all of Plaintiff's claim(s) (see Doc. 20). With regard to Defendants' motion, although styled as a motion to dismiss, Defendants attached materials outside the pleadings in support of their argument. Accordingly, Plaintiff must “be given reasonable opportunity to present all material made pertinent to the motion.” Fed.R.Civ.P. 12(d); See Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cr. 1993). Hence, Plaintiff is ADVISED that the Court intends to convert the motion to dismiss to a motion for summary judgment and is DIRECTED to respond and submit any materials relevant to this issue by February 2, 2018.

         As a pro se litigant, a person who is not represented by counsel in this matter, you are entitled to notice of the consequences of failing to respond to the motions for summary judgment. Timms v. Frank, 953 F.2d 281 (7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). Federal Rule of Civil Procedure 56 provides, in relevant part:

a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment 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. The court should state on the record the reasons for granting or denying the motion.
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(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
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(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 ...

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