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Hale v. Vitti

United States District Court, D. Kansas

March 19, 2019

MELVIN HALE, PH.D., Plaintiff,
v.
JACKIE VIETTI, PH.D., DAVID CORDLE, PH.D., JUDY ANDERSON, KEVIN JOHNSON, RAY LAUBER, MIRAH DOW, PH.D. and GARY WYATT, PH.D., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Melvin Hale, a former professor at Emporia State University (“ESU”), brings this action pro se[1] 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 capacity.

         On 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.

         Under 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.

         Defendants' 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.

         Plaintiff 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 facts.

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.”).

         Defendants 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).

         But the 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 1161, ...


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