United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Melvin Hale, a former professor at Emporia State University
(“ESU”), brings this action pro se against seven
individual defendants. He claims that defendants retaliated
against him after he exercised his right to speak out against
discrimination and racism at ESU. Plaintiff asserts a First
Amendment retaliation claim under 42 U.S.C. § 1983,
suing each defendant in the defendant's individual
November 2, 2018, defendants filed a Motion for Summary
Judgment against plaintiff's § 1983 claims asserted
against each defendant. Doc. 74. Defendants' motion
recites that they seek summary judgment against
plaintiff's claims “[p]ursuant to Fed.R.Civ.P. 56,
D. Kan. Rule 56.1, and the Court's Pretrial Order . . .
.” Id. at 1.
Federal Rule of Civil Procedure 56(a), a court must
“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.”
Fed.R.Civ.P. 56(a). Rule 56(c)(1) provides:
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.
Fed. R. Civ. P. 56(c)(1). Also, our court's local rules
require a party moving for summary judgment to set forth a
“concise statement of material facts” over which
“no genuine issue exists.” D. Kan. Rule 56.1(a).
“The facts must be numbered and must refer with
particularity to those portions of the record upon which
movant relies.” Id.
motion here contains no statement of material facts as the
rules require. Defendants' Memorandum in Support of its
Motion contains a heading titled “Statement of
Uncontroverted Facts.” Doc. 75 at 2. Under the heading,
the Memorandum recites “[See Attached].”
Id. But defendants never filed any attachment
containing their Statement of Uncontroverted Facts.
alerted defendants to their omission on the first page of his
Opposition to defendants' Motion for Summary Judgment.
Doc. 78-1 at 1. Plaintiff's Opposition recites:
Defendants make mention of a “Statement of
Uncontroverted Facts” in [their] memorandum filed on
November 3, 2018, ECF 75, pg. 2, but defendants did not
produce a Statement of Uncontroverted Facts. The documents
filed with the court in conjunction with defendant[s']
motion are listed on the PacerMonitor.com site, and the
webpage from that site, which mirrors PACER site, shows no
separate filing of a Statement of Uncontroverted Facts.
See Exhibit NN. Plaintiff is thus unable to assess
the bearing of defendant[s'] alleged uncontroverted
Id. at 1-2. Plaintiff then provided his own factual
statements in 58 separately numbered paragraphs with
citations to the portions of the summary judgment record he
relies on to support the facts. Id. at 2-21. By
doing so, plaintiff complied with our local summary judgment
rules governing a memorandum opposing summary judgment.
See D. Kan. Rule 56.1(b)(2) (“If the party
opposing summary judgment relies on any facts not contained
in movant's memorandum, that party must set forth each
additional fact in a separately numbered paragraph, supported
by references to the record, in the manner required by
subsection (a), above. All material facts set forth in this
statement of the non-moving party will be deemed admitted for
the purpose of summary judgment unless specifically
controverted by the reply of the moving party.”).
never filed a Reply to plaintiff's Opposition. So,
defendants haven't done anything to correct their
omission from their original motion-an omission that
plaintiff, by then, had called to their attention. Defendants
haven't sought leave to file their Statement of Facts or
to amend their current summary judgment filing. In short,
defendants have submitted no statement of material facts with
appropriate citations to the summary judgment record, as
Fed.R.Civ.P. 56 and D. Kan. Rule 56.1(a) require. The court
could deny defendants' summary judgment motion for this
reason alone. See, e.g., Wilson v. Skiles,
No. 02-3190-JAR, 2005 WL 466207, at *2 (D. Kan. Feb. 4, 2005)
(striking pro se plaintiff's summary judgment motion for
failing to comply with Fed.R.Civ.P. 56 and D. Kan. Rule
56.1); Ellibee v. Posey, No. 02-3233-JAR, 2005 WL
664043, at *1 (D. Kan. Jan. 11, 2005) (striking
plaintiff's motion for summary judgment for failing to
comply with Fed.R.Civ.P. 56 and D. Kan. R. 56.1); Wolters
v. Conner, No. 03-3251-KHV, 2004 WL 723585, at *5 (D.
Kan. Apr. 1, 2004) (denying plaintiff's summary judgment
motion for failing to comply with D. Kan. Rule 56.1).
court also denies defendants' summary judgment motion on
its merits. Simply, defendants have failed to establish that
summary judgment is appropriate. To deserve summary judgment,
a moving party must demonstrate “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). Defendants, as the moving parties, bear
“‘both the initial burden of production on a
motion for summary judgment and the burden of establishing
that summary judgment is appropriate as a matter of
law.'” Kannady v. City of Kiowa, 590 F.3d