IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

 _______________________________

ARTHUR JAMES TIGNER, #152 184 *

Plaintiff, *

 v. * 3:06-CV-713-MHT

 

OFFICER SELLER, et al., *

Defendants. *

 _______________________________

ORDER

The Magistrate Judge has reviewed the answer, special report and supporting

evidentiary materials filed by Defendants on November 6, 2006 (Doc. Nos. 10, 11) and

determined that Plaintiff must file a response in opposition to such pleadings. Accordingly,

it is

ORDERED that on or before November 27, 2006 Plaintiff shall file a response to the

written report. 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 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

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Thus, in preparing a response to the special report 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 report, he must file a sworn statement as to why he is unable to do so.

2

requires.

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

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

 Thus, in filing a response to

Defendants' report 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)

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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 manner in which to

respond to Defendants' written report 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 7th day of November 2006.

 /s/Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

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