At some point, the prison officials will probably submit a Motion for Summary Judgment. Be sure to read about the rules and procedure for summary judgment in Rule 56 of the Federal Rules of Civil Procedure. Defendants can ask for summary judgment along with their motion to dismiss your complaint or at some later time. You can also move for summary judgment. Your motion will be discussed separately at the end of this section.

1. The Legal Standard

“Summary Judgment” means the judge decides some or all of your case without a trial. Through summary judgment, a court can throw out part or all of your case. Under Rule 56(c)(2), to win on summary judgment, the prison officials have to prove to the judge there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. In other words, the judge finds that there is no point in holding a trial because both you and the defendant(s) agree about all the important facts and the Judge can use those facts to decide that the defendant(s) should win.

This test is very different from the test which is applied in a Motion to Dismiss your complaint. When the judge receives a Motion to Dismiss, he or she is supposed to look only at your complaint. In a Motion to Dismiss, the judge asks: could you win a judgment in your favor if you could prove in court everything you say in your complaint? When the judge receives a Motion for Summary Judgment, however, he or she looks at evidence presented by both sides, including affidavits, and asks: is there is any real disagreement about the important facts in the case?

The first part of the test for a Motion for Summary Judgment that is important to understand is what is meant by “a genuine issue.” Just saying that something happened one way, when the prison says it happened another way, is not enough: You need to have some proof that it happened the way you describe. Sworn statements (affidavits or declarations), photographs, deposition transcripts, interrogatory responses, and copies of letters or documents count as proof because you or the prison officials could introduce them as evidence if there were a trial in your case.

An “unverified” Complaint or Answer is not proof of any facts. It only says what facts you or the prison officials are going to prove. If you “verify” your complaint, however, then it counts the same as a declaration. See Chapter Five, Section C, Part 1 for more on verification.

If prison officials give the judge evidence that important statements in your complaint are not true, and you do not give the judge any evidence that your statements are true, then there is no real dispute about the facts. The judge will see that the prison officials have submitted evidence about their version of the facts and that you have not. The judge can then end your case by awarding summary judgment to the prison officials.

On the other hand, if you give the judge some evidence that supports your version of the important facts, then there is a real dispute. The prison officials are not entitled to summary judgment and your case should go to trial.

For example, if you sue guards who you say locked you up illegally, the guards could submit affidavits swearing they didn’t do it and then move for summary judgment. If you do not present evidence supporting your version of what happened, the guards’ motion might be granted. But if you present a sworn affidavit from yourself or a witness who saw it happen, the guards’ motion for summary judgment should be denied.

A good way to think about a “genuine issue” is whether the judge can tell, by the evidence presented by you and the prison, that you disagree with specific facts the prison officials are relying on.

The second important part of the test is that the “genuine issue” explained above must be about a “material fact.” A material fact is a fact that is so important to your lawsuit that it could determine whether you win or lose. If the prison officials can show that there is no genuine issue (or disagreement, as discussed above) over any material fact, then the court may grant them summary judgment. To know whether a fact is material, you have to know what courts consider when they rule on your type of case.

Imagine a prisoner sues a guard for excessive force.  As you know from Chapter Three, one of the most important facts in an excessive force claim is whether there was a legitimate need for the guard to use force against you.  In your complaint, you write that you were quietly sitting in your cell when the guard entered and began to beat you for no reason.  The guard submits an affidavit swearing that he only entered your cell after he saw you attack your cellmate, and that he used only the force necessary to pull you of your cellmate.  Imagine he submits a declaration from your cellmate supporting his story.  The question of why the guard entered your cell is a material fact.  If you don’t provide any evidence to support your version of what happened, like an affidavit of your own, a declaration by another witness, or a doctor’s report showing your injuries were inconsistent with a guard merely pulling you off another inmate, the court may decide there is no “genuine issue of material fact” and dismiss your complaint.

Strope v. Collins, 492 F. Supp. 2d 1289 (D. Kan. 2007), provides another helpful example.  In that case, two pro se prisoners sued various officials at Lansing Correctional Facility for violating their First Amendment right to receive information in prison, and their Fourteenth Amendment right to procedural due process after defendants censored magazines containing nudity.  Defendants moved for summary judgment before any discovery had occurred.  You’ll remember from Chapter Three that a prison regulation which denies a prisoner books or magazines is valid if it is reasonably related to a “legitimate penological interest,” decided by the Turner Test.  The judge denied summary judgment on the First Amendment claim because there wasn’t yet a factual record allowing for Turner analysis.

However, the court granted summary judgment on the procedural due process claim, because both parties agreed that the prisoners were provided notice of the censorship, and under the law, notice is all the process that is required.  Had the prisoners filed a verified complaint or an affidavit stating they did not receive notice of the censorship, this might have presented a genuine issue of material fact.

In deciding summary judgment, a court isn’t supposed to decide which party is telling the truth, or compare the strength of evidence.  If there is a real dispute, the court should just deny summary judgment.  In reality however, if the prison officials moving for summary judgment have a lot of evidence, like witness statements and medical records, and all you have is a verified complaint, you may lose summary judgment.  So you should try to present as much evidence as you can to the court, and not just rely on a verified complaint.

When the judge considers a motion for summary judgment, he or she is supposed to view the evidence submitted by both sides “in the light most favorable to the party opposing the motion.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 160 (1970); see also Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). If defendants move for summary judgment against you, you are the “opposing party.” This means that as the opposing party you get the benefit of the doubt if the meaning of a fact could be interpreted in two different ways.

2. Summary Judgment Procedure

If prison officials move for summary judgment, you will then have a chance to submit declarations, deposition transcripts, interrogatory responses, and other evidence. You need to submit all your evidence, and a memorandum explaining what you are submitting within 21 days, or ask for an extension.  The memorandum of law should summarize your evidence and explain how it supports each point that you need to prove. Check Chapter Three for the requirements of your claim. Be sure to repeat the major cases which support your argument that the prison officials violated your federal constitutional rights. Your memorandum should also point out to the judge all the specific facts that show there are material issues in dispute.

Defendants may try to move for summary judgment before you have had a chance to get discovery against them.  It also may be difficult for you to get declarations, especially from prisoners who have been transferred to other prisons or placed in isolation. If this is a problem, write an declaration to the judge explaining what facts you think you can get, how you want to get them, how those facts will create a genuine issue of material fact, any effort you have already made to get them and why that effort was unsuccessful.

Examples of Evidence or Proof of What You Say in Your Complaint:

  1. Affidavits and Declarations
  2. Photographs
  3. Interrogatory Responses
  4. Deposition Transcripts
  5. Copies of Letters
  6. Copies of Documents
  7. Your Verified Complaint

Under Rule 56(f) of the Federal Rules of Civil Procedure, the judge can deny the prison officials’ motion for summary judgment because you cannot get the declarations you need or because you haven’t yet had access to discovery. If the judge doesn’t deny the motion for summary judgment under Rule 56(f), you should ask him or her to grant you a “continuance” (more time) until you have a chance to get the declarations you need. This means the judge puts off ruling on the motion. Some courts have been very supportive of the fact that prisoners may need extra time to get declarations. Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), is a good case explaining this rule.

The judge also has the power under Rule 56(f) to “issue any other just order.” This could include ordering prison officials to let you interview witnesses or write to prisoners in other prisons.

3. Summary Judgment in Your Favor

You also have a right to move for summary judgment in your favor. You may want to do this in a case where everyone agrees that the prison is following a particular policy and the only question for the court is whether that policy is legal.

For example, suppose your complaint says that you were forced to let prison officials draw your blood to get your DNA and put it in a DNA database. The prison officials admit they are doing this, but deny that it is illegal. You may move for summary judgment on your behalf. Since the material facts are agreed on, the judge should grant you summary judgment if he or she agrees with your interpretation of the law. On the other hand, if your suit is about brutality or prison conditions or denial of medical care, you usually will have to go to trial since what actually happened is bound to be the major issue.

NOTE: If you defeat the prison officials’ Motion for Summary Judgment, be sure to renew your request for appointment of counsel. Follow the procedure outlined in Chapter Four, Section C, Part 3. The judge is much more likely to appoint a lawyer for you at this stage of your case. You may also want to consider approaching attorneys with your case at this point. Since Summary Judgment is a big hurdle to clear, some attorneys might see it as a sign that your case has the potential to win.

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