IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 _______________________________

JAMES PETTY, #124 252 *

Plaintiff, *

v. * 2:06-CV-639-WKW

RAY B. FINEDOR, et al., *

Defendants. *

 _______________________________

ORDER

The Magistrate Judge has reviewed the answers, special reports and supporting

evidentiary materials filed by Defendants (Doc. Nos. 13, 14, 15, 22) and determined that

Plaintiff must file a response in opposition to such pleadings. Accordingly, it is

ORDERED that on or before January 3, 2007 Plaintiff shall file a response to the

written reports. If Plaintiff fails to file a response as required by this order, the court

will treat the failure to respond as an abandonment of the claims set forth in the

complaint and as a failure to prosecute this action. 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. If Plaintiff

fails to respond to the written reports 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.

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Thus, in preparing a response to the special reports filed by Defendants, Plaintiff should refer to

the requirements of Rule 56, Federal Rules of Civil Procedure.

2

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

3

If Plaintiff is unable to present, by affidavit, facts essential to justify his opposition to

Defendants' special reports, he must file a sworn statement as to why he is unable to do so.

2

 As indicated herein, at some time in the future the court will treat Defendants' reports

and Plaintiff's response as a dispositive motion and response.1

 Thus, in filing a response to

Defendants' reports Plaintiff should not rely only on his or her unsworn pleadings but should

respond by filing sworn affidavits,2

 or other evidentiary materials 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 Defendants' evidence as the

truth.3

 If documents are referred to in the opposing affidavits 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 upon the expiration of the time for Plaintiff to file

a response as allowed by this order, unless within fifteen (15) days from the date of this order

a party files a pleading which presents sufficient legal cause why such action should not be

undertaken, the court may at any time thereafter and without further notice to the parties (1)

treat the special reports and any supporting evidentiary materials as motions for summary

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judgment and (2) after considering any response as allowed by this order, rule on the motions

for summary judgment in accordance with the law. 

Failure to follow the requirements of this order about the proper manner in which to

respond to Defendants' written reports will result in a recommendation of the Magistrate

Judge that final judgment be entered in favor of Defendants without there being an

evidentiary hearing.

Done, this 12th day of December 2006.

 /s/Delores R. Boyd 

DELORES R. BOYD

UNITED STATES MAGISTRATE JUDGE

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