United States District Court, M.D. Louisiana
ST. JULIAN BARANCO #229853
OFFICER CURTIS WILSON, ET AL.
WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on Plaintiffs Motion Requesting
an Evidentiary Hearing (R. Doc. 7), pursuant to which he
seeks to be granted summary judgment in connection with his
an inmate confined at the Madison Parish Correctional Center,
Tallulah, Louisiana, filed this action pursuant to 42 U.S.C.
§ 1983 against Officer Curtis Wilson and Officer Kerry
Hidalgo of the East Baton Rouge Parish Police Department,
complaining that his constitutional rights were violated on
August 24, 2015 when the Defendant police officers attempted
to make a traffic stop and when Plaintiff thereafter fled
from the officers. According to Plaintiff, after his vehicle
came to a stop at a dead-end street, the officers used their
vehicle to strike Plaintiff s vehicle and discharged their
weapons, causing gunshot wounds to Plaintiff before his
ultimate arrest on that date.
instant Motion was filed pro se and before either of
the two Defendants was served in this proceeding or had any
opportunity to respond to Plaintiff s allegations. In
addition, Plaintiffs Complaint is not sworn under penalty of
perjury, and he has not attached to his Motion his own sworn
statement, certified copies of any exhibits, or the sworn
statements of any persons attesting to the truth of his
allegations. Finally, an attorney has now enrolled on
Plaintiffs behalf, and Defendants have subsequently appeared
in this proceeding through the filing of a Motion to Dismiss
(R. Doc. 13), wherein they assert the defense that Plaintiffs
claim is barred by the doctrine set forth in Heck v.
Humphrey, 512 U.S. 477 (1994).
judgment is appropriate where there is no genuine issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving
party bears the initial burden of informing the Court of the
basis for the motion and identifying those portions of the
pleadings, depositions and discovery responses, together with
affidavits, if any, that it believes demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). "If the moving
party fails to meet this initial burden, the motion must be
denied, regardless of the nonmovant's response or failure
to respond. Ford-Evans v. Smith, 206 Fed.Appx. 332
(5th Cir. 2006), quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The
nonmoving party is not required to respond to the motion
until the movant has met its burden and properly supported
the motion with competent evidence. Id. Only
"[i]f the movant... meet[s] this burden [must] the
nonmovant... go beyond the pleadings and designate specific
facts showing that there is a genuine issue for trial."
Little v. Liquid Air, supra, 37 F.3d at 1075.
Court concludes, on the record before it, that Plaintiffs
Motion should be denied. Specifically, inasmuch as Plaintiff
has not attached to his Motion any sworn or authenticated
exhibits, he has not made a sufficient showing of entitlement
to relief or of the absence of any genuine issues of material
fact. Moreover, although the record reflects that Defendants
have since appeared in this proceeding through the filing of
a Motion to Dismiss, they were not served with Plaintiffs
instant Motion for Summary Judgment at the time it was filed
and so were not legally required to respond thereto. Finally,
Defendants have asserted in their pending Motion to Dismiss a
defense to Plaintiffs claims that, if successful, will
obviate any need for Defendants to address the factual issues
herein. Accordingly, the Court concludes that a grant of
summary judgment would be inappropriate at this time.
See, e.g., Tyson v. Tanner, 2008 WL 4948769, *3
(E.D. La., Nov. 18, 2008), and cases cited therein
(finding a motion for summary judgment to be premature where
it was filed before defendants were served).
recommended that Plaintiffs Motion Requesting an Evidentiary
Hearing (R. Doc. 7), wherein he requests summary judgment in
his favor, be denied, without prejudice, as premature, and
that this matter be referred back to the Magistrate Judge for