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Case No. 5:10cv288-RH/EMT

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RICARDO SANCHEZ,

Plaintiff,

v. CASE NO. 5:10cv288-RH/EMT

JOSE L. SANCHEZ, JR. et al.,

Defendants.

_____________________________/

ORDER OF DISMISSAL

The plaintiff alleges that his work assignment while an inmate in the Bureau 

of Prisons was breaking down computers, that this exposed him to toxic chemicals, 

and that he got cancer as a result. Later, after the plaintiff no longer worked in this 

field, the Bureau of Prisons discontinued the program, apparently concluding that 

the work was indeed hazardous. 

The operative pleading is the plaintiff’s second amended complaint. There 

are two named and one still-unnamed defendant. The case is before the court on 

the magistrate judge’s report and recommendation, ECF No. 108. No objections 

have been filed. 

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Case No. 5:10cv288-RH/EMT

The report and recommendation correctly concludes that summary judgment 

should be entered against the plaintiff and in favor of the two named defendants

and that the claims against the still-unnamed defendant should be dismissed. The 

report and recommendation is adopted as the court’s opinion with these 

clarifications and additional notes.

First, the plaintiff’s failure to respond to the summary-judgment motion is 

not a sufficient basis for granting the motion. “[T]he district court cannot base the 

entry of summary judgment on the mere fact that the motion was unopposed, but 

rather, must consider the merits of the motion.” United States v. One Piece of Real 

Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th 

Cir. 2004) (citing Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 

632 (11th Cir. 1988)).

Second, a sworn complaint constitutes summary-judgment evidence, just as 

if the same information had been set out in a declaration. See Caldwell v. Warden, 

FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (citing Perry v. Thompson, 

786 F.2d 1093, 1095 (11th Cir. 1986)). But allegations in an unsworn complaint 

are not summary-judgment evidence. Here the first, second, and third amended 

complaints all include sworn allegations.

Third, the defendants are entitled to summary judgment because the record 

includes no evidence—no facts in a sworn complaint or declaration, no 

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Case No. 5:10cv288-RH/EMT

documentary evidence, and no other summary-judgment evidence of any kind—

that would support a finding that the defendants knew of a hazard and willfully 

exposed the plaintiff to it. That prison officials later learned the activities were 

hazardous is not enough. And the allegation that the defendants should have 

known also is not enough; the plaintiff can recover by showing willful exposure to 

hazardous conditions, but not by showing mere negligence.

For these reasons, 

IT IS ORDERED:

1. The report and recommendation is ACCEPTED. 

2. The clerk must enter judgment stating, “This action was resolved on a 

motion for summary judgment. It is ordered that the plaintiff Ricardo Sanchez 

recover nothing. The claims against the defendants Jose L. Sanchez, Jr., and 

Drew Short are dismissed on the merits. All other claims against all other 

defendants are dismissed.” 

3. The clerk must close the file.

SO ORDERED on August 23, 2015.

s/Robert L. Hinkle

United States District Judge

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