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Pro Se Tips and Tactics (Summary Judgments)
By John Midgley
A tool used in many prison and jail cases, especially by defendants, is a summary judgment motion under Federal Rule of Civil Procedure 56. If you lose a summary judgment motion brought by the defendant, you have lost your case (unless you can get the summary judgment ruling reversed on appeal). Therefore, it is very important that pro se prisoners know how to deal with summary judgment motions.
This is the first of two columns about summary judgment.
This column discusses summary judgment motions in general, the role of discovery in defending against summary judgment motions, and what is a "material fact" under the summary judgment rules. The next column will discuss what a "genuine issue" of material fact is under the summary judgment rules, and what materials and procedures are necessary to show a "genuine issue." In both columns, I will refer to Federal Rule of Civil Procedure 56 as "Rule 56."
1. Summary Judgment Generally
Rule 56 provides for summary judgment by motion. "Summary judgment" means judgment made without the need for a trial and without waiting for a trial. Rule 56(c) provides that if a summary judgment motion is made, summary judgment shall be given "forthwith if the pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.)
The underlined portion of Rule 56(c) means that if the important facts are not in dispute and if the law when applied to those facts says that one side should win, then the case can be decided without a trial. Trials are held so that a judge or jury can decide what happened -- that is, determine the facts. The summary judgment rule says that if the facts aren't really in dispute, then the judge can just apply the law to the undisputed facts and decide the case without waiting for trial.
The complicated parts of applying the underlined language of Rule 56(c) come in deciding what are "material facts," whether there is any "genuine" dispute as to those facts, and how these things are shown or proven to the court. I discuss these issues in more detail below and in the next column.
Either side can make a motion for summary judgment. However, a plaintiff moving for full summary judgment has to show that as to each element of the claim there is no genuine factual dispute. (See below for a discussion of how to determine the elements of a claim.) This is often hard to do. I focus in this discussion mostly on defending against motions for summary judgment because in prison and jail cases the defendants are more likely to be the party moving for summary judgment.
But note that under Rule 56(d), summary judgment does not have to be granted on all parts of a case, but can be granted as to some issues but not as to other issues. This is called "partial summary judgment," and if granted it does not prevent a trial but it does shorten the trial by narrowing the issues. An example would be a case in which it is clear on undisputed facts that the defendant broke the law, but it is disputed what damage this caused the plaintiff. In this kind of case, the plaintiff could get a summary judgment saying the plaintiff's rights were violated, but there would be a trial on the amount of damages.
2. The Importance Of Discovery
The summary judgment rules highlight how important it is for plaintiffs in prison cases to take advantage of the discovery tools listed in Federal Rules of Civil Procedure 26 - 37. As Rule 56(c)(quoted above) makes clear, summary judgment motions are decided partly on the basis of what the parties have found in discovery through depositions, interrogatories, requests for admissions, etc. Therefore, you should be using these tools, both to get your case ready for trial and to be prepared to oppose a summary judgment motion.
If a summary judgment motion comes before you have an opportunity to do discovery, the rules allow the judge to put the summary judgment motion on hold until discovery is completed. Rule 56(f) provides:
(f) When Affidavits Are Unavailable. Should it appear from the af- fidavits of a party opposing the mo- tion that the party cannot for rea - sons stated present by affidavit facts essential to justify the party's oppo- sition, the court may refuse the ap- plication for judgment or may or - der a continuance to permit affida - vits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
So, if the defendant makes an early summary judgment motion but you have not had time to obtain the information you need to oppose it, ask for time to do discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 326 (1986)(referencing the need for "adequate time for discovery" and suggesting that some motions for summary judgment are "premature").
But don't wait too long. If you have had time to do discovery but have not taken advantage of the opportunity, you probably will not be given the chance to do discovery after the defendant moves for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)("the plaintiff must present affirmative evidence to defeat a properly supported motion for summary judgment...even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery...")
3. What Is A "Material" Fact?
Summary judgment may be granted if there is no "genuine issue as to any material fact." Rule 56(c)(emphasis added). In order to know how to either make a summary judgment motion or defend against one, you need to know what a "material fact" is.
Material facts are facts that help to prove or disprove one or more of the so-called "elements" of your claim. The elements of your claim are those things that you must show in order to win your case. Every legal claim has elements, and you must figure out the elements of your claim in order to decide not only whether you have a claim and so should file a lawsuit, but also to understand what facts will be found to be "material" if a summary judgment motion is filed.
The elements of a claim come from the law that describes what the claim is. For example, suppose you have made a claim for damages for unconstitutional medical care provided to you in prison. You would find the elements of this claim in the following way:
- Under 42 U.S.C. § 1983, you must show that the defendant, acting under color of state law, violated your constitutional rights, and caused damage.
- The constitutional right involved is the Eighth Amendment right to medical care in prison, and to make out a claim of violation of this right, you must show "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97 (1976).
From these two sources of the law, you can now list the essential elements of your medical care claim:
1. the defendant was acting under color of state law (meaning he or she was a state employee acting at the prison);
2. you had a "serious medical need" (which is further defined in caselaw);
3. the defendant acted with "delib erate indifference" toward that need (defined in caselaw);
4. these actions of the defendant caused you damage.
If you cannot prove all of these elements, you cannot make out your case for damages for unconstitutional medical care. Facts which tend to show the existence or nonexistence of these elements are "material facts," because these are the facts that will determine whether you win or lose. Other facts are not "material," because they don't bear on whether you will win or lose:
"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
My next column will discuss how material facts may be presented in connection with summary judgment motions, and what is a "genuine issue of material fact" sufficient to defeat a summary judgment motion.
The law relating to summary judgment motions is complicated. The discussion above is about general principles and may not apply to your case. You should conduct your own research to determine how the law applies to your case.
[John Midgley is a staff attorney at Columbia Legal Services in Tacoma, WA.]
A tool used in many prison and jail cases, especially by defendants, is a summary judgment motion under Federal Rule of Civil Procedure 56. If you lose a summary judgment motion brought by the defendant, you have lost your case (unless you can get the summary judgment ruling reversed on appeal). Therefore, it is very important that pro se prisoners know how to deal with summary judgment motions.
This is the first of two columns about summary judgment.
This column discusses summary judgment motions in general, the role of discovery in defending against summary judgment motions, and what is a "material fact" under the summary judgment rules. The next column will discuss what a "genuine issue" of material fact is under the summary judgment rules, and what materials and procedures are necessary to show a "genuine issue." In both columns, I will refer to Federal Rule of Civil Procedure 56 as "Rule 56."
1. Summary Judgment Generally
Rule 56 provides for summary judgment by motion. "Summary judgment" means judgment made without the need for a trial and without waiting for a trial. Rule 56(c) provides that if a summary judgment motion is made, summary judgment shall be given "forthwith if the pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.)
The underlined portion of Rule 56(c) means that if the important facts are not in dispute and if the law when applied to those facts says that one side should win, then the case can be decided without a trial. Trials are held so that a judge or jury can decide what happened -- that is, determine the facts. The summary judgment rule says that if the facts aren't really in dispute, then the judge can just apply the law to the undisputed facts and decide the case without waiting for trial.
The complicated parts of applying the underlined language of Rule 56(c) come in deciding what are "material facts," whether there is any "genuine" dispute as to those facts, and how these things are shown or proven to the court. I discuss these issues in more detail below and in the next column.
Either side can make a motion for summary judgment. However, a plaintiff moving for full summary judgment has to show that as to each element of the claim there is no genuine factual dispute. (See below for a discussion of how to determine the elements of a claim.) This is often hard to do. I focus in this discussion mostly on defending against motions for summary judgment because in prison and jail cases the defendants are more likely to be the party moving for summary judgment.
But note that under Rule 56(d), summary judgment does not have to be granted on all parts of a case, but can be granted as to some issues but not as to other issues. This is called "partial summary judgment," and if granted it does not prevent a trial but it does shorten the trial by narrowing the issues. An example would be a case in which it is clear on undisputed facts that the defendant broke the law, but it is disputed what damage this caused the plaintiff. In this kind of case, the plaintiff could get a summary judgment saying the plaintiff's rights were violated, but there would be a trial on the amount of damages.
2. The Importance Of Discovery
The summary judgment rules highlight how important it is for plaintiffs in prison cases to take advantage of the discovery tools listed in Federal Rules of Civil Procedure 26 - 37. As Rule 56(c)(quoted above) makes clear, summary judgment motions are decided partly on the basis of what the parties have found in discovery through depositions, interrogatories, requests for admissions, etc. Therefore, you should be using these tools, both to get your case ready for trial and to be prepared to oppose a summary judgment motion.
If a summary judgment motion comes before you have an opportunity to do discovery, the rules allow the judge to put the summary judgment motion on hold until discovery is completed. Rule 56(f) provides:
(f) When Affidavits Are Unavailable. Should it appear from the af- fidavits of a party opposing the mo- tion that the party cannot for rea - sons stated present by affidavit facts essential to justify the party's oppo- sition, the court may refuse the ap- plication for judgment or may or - der a continuance to permit affida - vits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
So, if the defendant makes an early summary judgment motion but you have not had time to obtain the information you need to oppose it, ask for time to do discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 326 (1986)(referencing the need for "adequate time for discovery" and suggesting that some motions for summary judgment are "premature").
But don't wait too long. If you have had time to do discovery but have not taken advantage of the opportunity, you probably will not be given the chance to do discovery after the defendant moves for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)("the plaintiff must present affirmative evidence to defeat a properly supported motion for summary judgment...even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery...")
3. What Is A "Material" Fact?
Summary judgment may be granted if there is no "genuine issue as to any material fact." Rule 56(c)(emphasis added). In order to know how to either make a summary judgment motion or defend against one, you need to know what a "material fact" is.
Material facts are facts that help to prove or disprove one or more of the so-called "elements" of your claim. The elements of your claim are those things that you must show in order to win your case. Every legal claim has elements, and you must figure out the elements of your claim in order to decide not only whether you have a claim and so should file a lawsuit, but also to understand what facts will be found to be "material" if a summary judgment motion is filed.
The elements of a claim come from the law that describes what the claim is. For example, suppose you have made a claim for damages for unconstitutional medical care provided to you in prison. You would find the elements of this claim in the following way:
- Under 42 U.S.C. § 1983, you must show that the defendant, acting under color of state law, violated your constitutional rights, and caused damage.
- The constitutional right involved is the Eighth Amendment right to medical care in prison, and to make out a claim of violation of this right, you must show "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97 (1976).
From these two sources of the law, you can now list the essential elements of your medical care claim:
1. the defendant was acting under color of state law (meaning he or she was a state employee acting at the prison);
2. you had a "serious medical need" (which is further defined in caselaw);
3. the defendant acted with "delib erate indifference" toward that need (defined in caselaw);
4. these actions of the defendant caused you damage.
If you cannot prove all of these elements, you cannot make out your case for damages for unconstitutional medical care. Facts which tend to show the existence or nonexistence of these elements are "material facts," because these are the facts that will determine whether you win or lose. Other facts are not "material," because they don't bear on whether you will win or lose:
"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
My next column will discuss how material facts may be presented in connection with summary judgment motions, and what is a "genuine issue of material fact" sufficient to defeat a summary judgment motion.
The law relating to summary judgment motions is complicated. The discussion above is about general principles and may not apply to your case. You should conduct your own research to determine how the law applies to your case.
[John Midgley is a staff attorney at Columbia Legal Services in Tacoma, WA.]
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