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Faircloth v. Schwartz

United States District Court, D. Colorado

March 7, 2016

JAMES FAIRCLOTH, Plaintiff,
v.
CELIA SCHWARTZ, Legal Assistant for BVCF, in her official and individual capacities, Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Robert E. Blackburn, Judge

The matter before me is the Defendant’s Motion for Summary Judgment [#196], [1] filed January 25, 2016. I grant the motion.

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. Under Fed.R.Civ.P. 56(c), a “party asserting that a fact cannot be or is genuinely disputed must support the assertion by” citing to materials in the record. The court is required to consider only the cited materials, but it may consider other materials in the record. Fed.R.Civ.P. 56(c)(3). All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000).

The plaintiff is acting pro se. Therefore, I construe his pleadings and other filings generously and with the leniency due to pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Nevertheless, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall, 935 F.2d at 1110.

III. BACKGROUND & FACTS

The plaintiff, James Faircloth, is an inmate in the Colorado Department of Corrections (DOC). In this case, Mr. Faircloth asserts two claims against the defendant, Celia Schwartz. First, Mr. Faircloth alleges that Ms. Schwartz interfered with his right of access to the courts. Second, Mr. Faircloth alleges that Ms. Schwartz retaliated against him as a result of grievances Mr. Faircloth filed against Ms. Schwartz.

Ms. Schwartz seeks summary judgment on both claims. All other claims asserted by Mr. Faircloth in this case have been dismissed. Recommendation [#131]; Order [#143].

Mr. Faircloth has not filed a response to the motion for summary judgment.[2]After the motion for summary judgment was filed, Mr. Faircloth filed a motion for an extension of time to file a response [#200]. I denied that motion. Order [#204].

In his motion for extension of time [#200] and an affidavit [#206], Mr. Faircloth outlines the bases for his contention that summary judgment is not proper. Because Mr. Faircloth id proceeding pro se, I treat those filings as his response to the motion for summary judgment.

The statements of Mr. Faircloth in his motion for extension of time [#200] were not made under oath. As a result, these statements are not admissible evidence which properly can be considered in support of a response to a motion for summary judgment. Nevertheless, I have ...


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