IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL D. ANDERSON, #156270, )

)

 Plaintiff, )

)

v. ) CASE NO. 2:06-CV-620-WKW

)

PAUL WHALEY, et al., )

)

 Defendants. )

 

O R D E R

The Magistrate Judge has reviewed the written report and supporting evidentiary

materials filed by the defendants and determined that the plaintiff should file a response in

opposition to such pleadings. Accordingly, it is

ORDERED that on or before September 18, 2006 the plaintiff shall file a response to

the written report filed by the defendants. If the plaintiff fails to file a response as

required by this order, the court will treat the plaintiff's failure to respond as an

abandonment of the claims set forth in the complaint and as a failure to prosecute this

action. Moreover, the plaintiff is specifically cautioned that if he fails to file a response

in compliance with the directives of this order the undersigned will recommend that

this case be dismissed for such failure. In addition, if the plaintiff fails to respond to the

written report with respect to each of the claims raised in his complaint, the court will

treat this failure as an abandonment of these claims and shall proceed as justice

requires. 

Case 2:06-cv-00620-WKW-CSC Document 10 Filed 08/30/2006 Page 1 of 3
 Thus, in preparing a response to the special report filed by the defendants the plaintiff 1

should refer to the requirements of Rule 56, Federal Rules of Civil Procedure.

 An affidavit is a sworn statement in writing made under oath or on affirmation before a 2

notary public or other authorized officer. The affidavit must be made on personal knowledge, set

forth such facts as would be admissible in evidence, and show affirmatively that the affiant is

competent to testify to the matters stated in the affidavit.

 If the plaintiff is unable to present, by affidavit, facts essential to justify his opposition to 3

the defendants' report, then plaintiff must file a sworn statement as to why he or she is unable to

do so.

2

As indicated herein, at some time in the future the court may treat the defendants'

report and the plaintiff's response as a dispositive motion and response. Thus, in filing a 1

response to the defendants' report the plaintiff should not rely only on his or her unsworn

pleadings but should respond by filing sworn affidavits, or other evidentiary materials 2

developed through discovery or other appropriate means and which set forth specific facts

demonstrating there is a genuine issue of material fact for trial in this case. Failure to file

sworn affidavits or other evidentiary materials may result in this court accepting the

defendants’ evidence as the truth. If documents are referred to in the opposing affidavits 3

and have not been previously filed with the court, sworn or certified copies of those papers

must be attached to the affidavits or served with them. 

The parties are hereby notified that, unless within fifteen (15) days from the date of

this order a party files a response in opposition which presents sufficient legal cause why

such action should not be undertaken, upon the expiration of the time for the plaintiff to file

Case 2:06-cv-00620-WKW-CSC Document 10 Filed 08/30/2006 Page 2 of 3
3

a response as allowed by this order, the court may at any time thereafter and without further

notice to the parties (1) treat the special report and any supporting evidentiary materials as

a motion for summary judgment and (2) after considering any response as allowed by this

order, rule on the motion for summary judgment in accordance with the law. 

Failure to follow the requirements of this order about the proper way to respond to the

defendants' report may result in a recommendation of the Magistrate Judge that final

judgment be entered in favor of the defendants without there being an evidentiary hearing.

Done this 30 day of August, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00620-WKW-CSC Document 10 Filed 08/30/2006 Page 3 of 3