United States District Court, M.D. Louisiana
SHELLY D. DICK, District Judge.
The Court has carefully considered the Complaint , the record, the law applicable to this action, and the Report and Recommendation  of United States Magistrate Judge Stephen C. Riedlinger dated November 3, 2014 regarding the Defendants Cross (sic) Motion for Summary Judgment.  Plaintiff has filed an Objection  to the Magistrate Judge's Report and Recommendation which the Court has also considered. For the reasons which follow, the Court declines to adopt the Report and Recommendation of the Magistrate Judge.
Defendants, correctional officers at Louisiana State Penitentiary (LSP), move for summary judgment on the grounds of qualified immunity and under the Heck v. Humphrey  doctrine. Defendants also rather in artfully moved for summary judgment on the grounds that there is an absence of evidence of injury resulting from the use of excessive force, a necessary element of an 8th Amendment claim of cruel and unusual punishment.
The Court has previously denied the Defendants' summary judgment motion made on the grounds of Heck v. Humphreys.  Defendants failed to establish the elements of Qualified Immunity necessary to support summary judgment. Summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Plaintiff, Gage, failed to file any opposition to the Motion for Summary Judgment. In his objection to the Magistrate's Report and Recommendation, Plaintiff states that he "previously responded to an earlier bid for summary judgment and confused the two pleadings, missing his opportunity to file [an Opposition] to the current summary judgment."
The Plaintiff's pro se status does not relieve him of the procedural obligations imposed on all other litigants. Gage did not timely file an opposition to Defendants' Motion for Summary Judgment. His failure to respond, however, does not permit the Court to enter a "default" summary judgment. Shortly after the instant Motion for Summary Judgment, the Plaintiff filed a "Motion to Preserve Electronic Surveillance Video Evidence" in which he argues against summary judgment. After the Magistrate Judge rendered his Report and Recommendation, Plaintiff filed a "Motion to Append Newly Collected Evidence for Summary Judgment Purposes" which appears to be an effort to file countervailing affidavits, albeit belated, which motion remains pending.
The Court is faced with competing considerations. On the one hand, the Court is to construe a pro se litigant's pleadings liberally. However, "[i]n response to a summary judgment motion, a litigant, whether pro se or represented, has the duty to present to the district court the evidence that creates a genuine issue of material fact." Rule 56(e) requires the nonmoving party to go beyond the pleadings in opposition to a motion for summary judgment. A summary judgment motion may be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." However, Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
In his "Motion to Preserve Electronic Surveillance Video Evidence",  Plaintiff moves to preserve LSP surveillance video of the events at issue which Plaintiff contends are "central to genuine issues of material fact for purposes of supporting his claims and disputing the Defendant's assertions". The Court construes this pleading as a Rule 56(d) declaration that the Plaintiff seeks the opportunity to obtain evidence "essential to justify" opposition to the Defendants' motion.
In the interest of justice, and in accordance with FRCP Rule 56(d), the Court declines to adopt the recommendation of the Magistrate Judge and ruling on the Defendants' Motion for Summary Judgment is hereby DEFERRED, without prejudice to re-urging. This matter is referred back to the Magistrate Judge for further proceedings consistent with this Ruling, including but not limited to the ...