IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JOHN NORMAN, 

Plaintiff,

vs. CASE NO. 1:04cv05-MMP/AK

SHERIFF OELRICH, et al.,

Defendants.

 /

O R D E R

This cause is before the Court upon receipt of Defendants’ Special Report (doc.

33), to which Defendant Bauer has joined. (Doc. 38). In ordering the special report, the

Court advised that "at some time in the future upon notice of the Court, the special

report may be deemed a motion for summary judgment." (Doc. 31). This order is

entered to advise the parties that the report will be treated as a motion for summary

judgment. This order also advises Plaintiff of his burden in opposing summary

judgment. 

"[S]ummary judgment may not be entered against a party unless the court has

strictly complied with the notice requirements mandated by Fed. R. Civ. P. 56(c)." 

Brown v. Shinbaum, 828 F.2d 707, 708 (11th Cir. 1987), citing Griffith v. Wainwright,

772 F.2d 822, 824-25 (11th Cir. 1985). This requires that the Court give express 10 day

notice of the summary judgment rules, of the right to file affidavits or other material, and

the consequences of default; i.e., the fact that final judgment may be entered without a

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trial and that the moving party's evidence may be accepted as true if not contradicted by

sworn affidavits. Id. This order is entered in compliance with Brown and Griffith. 

Plaintiff is advised that in opposing the motion he is the nonmoving party, and as

Plaintiff he bears the burden of proof. In this situation, Defendants need not negate

Plaintiff's claim. Rather, the burden on a defendant moving for summary judgment is to

demonstrate an absence of evidence to support the plaintiff's case. Celotex

Corporation v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265

(1986). In opposition, Plaintiff must come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Reliance on the pleadings is inadequate. 

477 U.S. at 324. Evidentiary material which would be acceptable in opposition to the

motion includes sworn affidavits, sworn documents, or other evidence indicating the

existence of a genuine issue of material fact. Fed. R. Civ. P. 56(e). Sworn affidavits

offered in opposition to the motion must be based on personal knowledge, set forth

such facts as would be admissible into evidence, and affirmatively show that the affiant

is competent to testify to the matters stated therein. Fed. R. Civ. P. 56(e).

As required by N.D. Fla. Loc. R. 56.1(A), Defendants submitted a statement of

undisputed material facts. Doc. 58, p. 5. In opposing summary judgment, Plaintiff shall

(in addition to submitting other materials permitted by the Federal Rules, discussed

above) submit a separate statement of facts as to which he contends that there is a

genuine issue of fact to be tried. See N.D. Fla. Loc. R. 56.1(A). The statement shall

reference the appropriate deposition, affidavit, interrogatory, admission, or other source

of the relied upon material fact, by page, paragraph, number or other detail to enable

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the Court to readily locate the source of the fact. Id. Facts set forth in the Defendants’

statement will be deemed admitted unless controverted by the Plaintiff’s statement. Id. 

The Court will take the motion for summary judgment under advisement on July

11, 2005. Plaintiff must file all argument and evidence in opposition to summary

judgment before that date. If additional time is needed, Plaintiff must file a motion for

extension of time (describing why the time is needed and how much time is necessary)

before the date on which the motion will be taken under advisement. The file will be

referred to the undersigned on that date, and any delay in entry of a report and

recommendation after that date will be due to the need to adjudicate motions in other

cases which have become ready for adjudication earlier than this case. Defendants

need not file any further materials if they wish to rely upon the special report and

materials submitted therewith, but are permitted to do so by the deadline stated above.

Accordingly, it is ORDERED:

1. The parties are advised that the motion for summary judgment will be taken

under advisement on July 11, 2005, and a report and recommendation will be entered

after that date. They must submit any additional material in support of or opposition to

summary judgment before that date. 

DONE AND ORDERED this 18th day of May, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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