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Pro Se Tips and Tactics
By John Midgley
In my last column, I began a discussion of summary judgment motions in prison cases, which I continue in this column. In prison cases, summary judgment motions are often made by defendants to try to get judgment without the need to go through a trial. Under Federal Rule of Civil Procedure 56 ("Rule 56"), summary judgment will be granted if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." (Emphasis mine.) In the last column, I discussed what summary judgment is, the role of discovery in summary judgment proceedings, and how to determine what are the material facts. In this column, I first discuss the legal standards that are used to decide summary judgment motions and then, in the context of the legal standards, discuss what a "genuine issue" is, and talk about how to show there are "genuine issues of material fact" sufficient to defeat a summary judgment motion.
Legal Standards For Deciding Summary Judgment Motions
Summary judgment, as it is written into Rule 56, is not supposed to be the same as a trial; rather, it is supposed to be a procedure by which the judge can decide whether a trial is necessary. So, in deciding a summary judgment motion, the court is not supposed to do things that a trial judge or jury does, such as figuring out who is telling the truth or resolving factual disputes. Instead, the court on a summary judgment motion is deciding whether a reasonable fact-finder at trial -- the trial jury, or the judge in a non-jury trial -- could give a verdict in favor of the nonmoving party. The U.S. Supreme Court has stated these requirements as follows:
"The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
"...[T]his standard mirrors the standard for directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict...If reasonable minds could differ about the import of the evidence, however, a verdict should not be directed."
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-251 (1986). Anderson goes on to say, however, that this means that there must be more than just "some evidence:" The question for the judge is "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party" who opposes summary judgment.
A crucial legal standard for anyone opposing summary judgment to know and cite is that in ruling on a summary judgment motion, the judge must view the nonmoving party's evidence -- your evidence if you are the plaintiff responding to the defendant's summary judgment motion -- in the light most favorable to you: "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson , 477 U.S. at 255.
This does not mean, however, that the judge must agree with everything you say or give you a trial just because you say there are genuine issues. There must be admissible evidence available before the judge can apply the above standards. I discuss how to produce this evidence below.
What Are "Genuine Issues" Of Material Fact Sufficient To Avoid Summary Judgment?
As shown in the last column, a "material fact" is a fact that relates directly to an essential element of a claim or defense. If the defendant files a summary judgment motion against you, you can demonstrate that there are "genuine issues" of material fact by showing, under the legal standards discussed above, that as to each material fact, a trial jury or judge could find in your favor at trial.
It is very important to note, however, that you cannot just rely on your complaint to show the existence of genuine issues. See the last two sentences of Rule 56(e). You must be able to bring forward evidence from depositions, interrogatory answers, declarations, admissions, etc. That evidence could in some cases be your own testimony, but it must be evidence, not just your complaint or your own statements that you think you have a claim.
In addition, if you are the plaintiff, there must be genuine issues (or undisputed evidence in your favor) as to every essential element of your claim for you to avoid summary judgment. There will not be a trial if the defendant can show that the evidence is not genuinely in dispute -- and favors the defense -- as to even one of the elements, for a simple reason: If there is no genuine issue as to one of the elements, there is no reason to have a trial because the plaintiff could not win. For example, in making a claim of denial of access to the courts, it is now required that you show that you were hindered in your efforts to pursue a legal claim. Lewis v. Casey , 116 S.Ct. 2174 (1996). If you do not have enough evidence to permit a jury to find this element, you will lose a summary judgment motion no matter how strong your evidence is on the other elements.
The Process For
Establishing Genuine Issues
The Supreme Court a few years ago clarified the summary judgment process as it relates to determining "genuine issues." The court did so in a way that favored defendants by making summary judgment easier to get in federal court than before. The case in which this happened is Celotex Corp. v. Catrett , 477 U.S. 317 (1986), and it must be understood by anyone who is defending against a summary judgment motion.
In Celotex , the court held that a defendant making a summary judgment motion in federal court can win merely by showing that the there is no evidence in the record that supports one or more of the essential elements of the plaintiff's claim. The court said that defendants are not required to put forward evidence negating the plaintiff's claims (as some federal courts previously thought), but could merely rely on an the absence of evidence of an essential element that the plaintiff must prove to win at trial.
What this means is that, after a reasonable time to do discovery (see my last column), a defendant can file a summary judgment motion saying that there is no evidence in the record to support an essential part of your claim. For example, in a prison medical care case, you must show "deliberate indifference to a serious medical need" in order to win. The defendant could move for summary judgment saying that there is no evidence of "deliberate indifference." Unless you could point to something in the depositions, answers to interrogatories, or materials already in the record that would be enough to allow a judge or jury to find deliberate indifference, then you would have to produce evidence of deliberate indifference in response to the motion. If you didn't, then summary judgment would probably be granted.
To create a genuine issue, you must present evidence that, if put in the proper form, will be admissible at trial, although it does not have to be in admissible form at the time of the summary judgment motion. Celotex , 477 U.S. at 324. What this means is that you can present affidavits or declarations in response to a summary judgment motion, so long as those are on "personal knowledge," meaning that the person making the declaration would be able to testify to these facts at trial. The affidavit or declaration would not be admissible at trial, but the person could testify to the things they said in their affidavit, so long as they have personal knowledge. In contrast, you cannot successfully present affidavits that contain, for example, hearsay that would be inadmissible at trial; the person making the affidavit must have seen or heard what she or he swears to.
You can rely on circumstantial evidence in trying to defeat a summary judgment motion, but it must be strong enough to allow a jury to find the fact you are trying to prove. On some issues, such as state of mind, circumstantial evidence is often all you can come up with: It is rare for defendants to admit they have been, for example, "deliberately indifferent" to medical needs; you will have to rely on evidence of defendants' actions and words that you claim add up to "deliberate indifference." But you will have to show more than your own belief that you were mistreated; evidence from which a jury could infer deliberate indifference is required.
This process, as defined by the Supreme Court in Celotex, creates a number of problems for plaintiffs. The most glaring problem is that it allows defendants to sit back and just say "you can't prove it," while the plaintiff has to reveal much of his or her evidence in order to defeat summary judgment. Thus, even if the defendant doesn't win the summary judgment motion, they have had the benefit of a great discovery device, one that reveals their opponent's theories and strategies for how to prove the case. Therefore, when you respond to a summary judgment motion, you are faced with a difficult dilemma: You don't want to let the other side know all you've got and how you plan to put it together, but if you leave something out summary judgment might be granted. You will have to use your best judgment on this, but it is not particularly wise to leave something important out of a summary judgment response.
Another problem, especially for prisoners, is the need to gather evidence on somewhat short notice. Most federal districts have time limits within which to respond to summary judgment motions, often just 2-3 weeks. As I discussed in my last column, if there hasn't been enough time to do proper discovery, you may be able to get consideration of the motion put off under See Rule 56(f). However, if there has been time to do discovery, then you will have to respond to the summary judgment motion within the time given by the local rules. Therefore, it is important to be as prepared as possible to present evidence on short notice.
One very helpful way to respond to a summary judgment motion in a prison case is to use the defendants' own documents (or statements defendants make in their pleadings). If documents are written by the defendants, they are not hearsay under the rules; they are admissible at trial as admissions by the defendants (assuming you can show they are authentic). If you have memos or letters written by defendants that tend to prove parts of your case, especially on difficult-to-prove matters like state of mind (for example, "deliberate indifference"), they can be extremely helpful in defeating a summary judgment motion.
This highlights again, as discussed in more detail in the last column, the need to do early discovery. If you have, as is permitted by the discovery rules, asked the defendants in a Request For Production of Documents for all the documents they have relating to your claims, you will have increased your chances of defeating their summary judgment motion.
Summary judgment is a complicated subject which cannot be fully covered in the space I have had. I have tried in this column and the last one to give you an outline of what you face in responding to summary judgment motions. However, each case is unique, and this general overview is not intended to provide specific advice for your particular case.
In my last column, I began a discussion of summary judgment motions in prison cases, which I continue in this column. In prison cases, summary judgment motions are often made by defendants to try to get judgment without the need to go through a trial. Under Federal Rule of Civil Procedure 56 ("Rule 56"), summary judgment will be granted if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." (Emphasis mine.) In the last column, I discussed what summary judgment is, the role of discovery in summary judgment proceedings, and how to determine what are the material facts. In this column, I first discuss the legal standards that are used to decide summary judgment motions and then, in the context of the legal standards, discuss what a "genuine issue" is, and talk about how to show there are "genuine issues of material fact" sufficient to defeat a summary judgment motion.
Legal Standards For Deciding Summary Judgment Motions
Summary judgment, as it is written into Rule 56, is not supposed to be the same as a trial; rather, it is supposed to be a procedure by which the judge can decide whether a trial is necessary. So, in deciding a summary judgment motion, the court is not supposed to do things that a trial judge or jury does, such as figuring out who is telling the truth or resolving factual disputes. Instead, the court on a summary judgment motion is deciding whether a reasonable fact-finder at trial -- the trial jury, or the judge in a non-jury trial -- could give a verdict in favor of the nonmoving party. The U.S. Supreme Court has stated these requirements as follows:
"The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
"...[T]his standard mirrors the standard for directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict...If reasonable minds could differ about the import of the evidence, however, a verdict should not be directed."
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-251 (1986). Anderson goes on to say, however, that this means that there must be more than just "some evidence:" The question for the judge is "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party" who opposes summary judgment.
A crucial legal standard for anyone opposing summary judgment to know and cite is that in ruling on a summary judgment motion, the judge must view the nonmoving party's evidence -- your evidence if you are the plaintiff responding to the defendant's summary judgment motion -- in the light most favorable to you: "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson , 477 U.S. at 255.
This does not mean, however, that the judge must agree with everything you say or give you a trial just because you say there are genuine issues. There must be admissible evidence available before the judge can apply the above standards. I discuss how to produce this evidence below.
What Are "Genuine Issues" Of Material Fact Sufficient To Avoid Summary Judgment?
As shown in the last column, a "material fact" is a fact that relates directly to an essential element of a claim or defense. If the defendant files a summary judgment motion against you, you can demonstrate that there are "genuine issues" of material fact by showing, under the legal standards discussed above, that as to each material fact, a trial jury or judge could find in your favor at trial.
It is very important to note, however, that you cannot just rely on your complaint to show the existence of genuine issues. See the last two sentences of Rule 56(e). You must be able to bring forward evidence from depositions, interrogatory answers, declarations, admissions, etc. That evidence could in some cases be your own testimony, but it must be evidence, not just your complaint or your own statements that you think you have a claim.
In addition, if you are the plaintiff, there must be genuine issues (or undisputed evidence in your favor) as to every essential element of your claim for you to avoid summary judgment. There will not be a trial if the defendant can show that the evidence is not genuinely in dispute -- and favors the defense -- as to even one of the elements, for a simple reason: If there is no genuine issue as to one of the elements, there is no reason to have a trial because the plaintiff could not win. For example, in making a claim of denial of access to the courts, it is now required that you show that you were hindered in your efforts to pursue a legal claim. Lewis v. Casey , 116 S.Ct. 2174 (1996). If you do not have enough evidence to permit a jury to find this element, you will lose a summary judgment motion no matter how strong your evidence is on the other elements.
The Process For
Establishing Genuine Issues
The Supreme Court a few years ago clarified the summary judgment process as it relates to determining "genuine issues." The court did so in a way that favored defendants by making summary judgment easier to get in federal court than before. The case in which this happened is Celotex Corp. v. Catrett , 477 U.S. 317 (1986), and it must be understood by anyone who is defending against a summary judgment motion.
In Celotex , the court held that a defendant making a summary judgment motion in federal court can win merely by showing that the there is no evidence in the record that supports one or more of the essential elements of the plaintiff's claim. The court said that defendants are not required to put forward evidence negating the plaintiff's claims (as some federal courts previously thought), but could merely rely on an the absence of evidence of an essential element that the plaintiff must prove to win at trial.
What this means is that, after a reasonable time to do discovery (see my last column), a defendant can file a summary judgment motion saying that there is no evidence in the record to support an essential part of your claim. For example, in a prison medical care case, you must show "deliberate indifference to a serious medical need" in order to win. The defendant could move for summary judgment saying that there is no evidence of "deliberate indifference." Unless you could point to something in the depositions, answers to interrogatories, or materials already in the record that would be enough to allow a judge or jury to find deliberate indifference, then you would have to produce evidence of deliberate indifference in response to the motion. If you didn't, then summary judgment would probably be granted.
To create a genuine issue, you must present evidence that, if put in the proper form, will be admissible at trial, although it does not have to be in admissible form at the time of the summary judgment motion. Celotex , 477 U.S. at 324. What this means is that you can present affidavits or declarations in response to a summary judgment motion, so long as those are on "personal knowledge," meaning that the person making the declaration would be able to testify to these facts at trial. The affidavit or declaration would not be admissible at trial, but the person could testify to the things they said in their affidavit, so long as they have personal knowledge. In contrast, you cannot successfully present affidavits that contain, for example, hearsay that would be inadmissible at trial; the person making the affidavit must have seen or heard what she or he swears to.
You can rely on circumstantial evidence in trying to defeat a summary judgment motion, but it must be strong enough to allow a jury to find the fact you are trying to prove. On some issues, such as state of mind, circumstantial evidence is often all you can come up with: It is rare for defendants to admit they have been, for example, "deliberately indifferent" to medical needs; you will have to rely on evidence of defendants' actions and words that you claim add up to "deliberate indifference." But you will have to show more than your own belief that you were mistreated; evidence from which a jury could infer deliberate indifference is required.
This process, as defined by the Supreme Court in Celotex, creates a number of problems for plaintiffs. The most glaring problem is that it allows defendants to sit back and just say "you can't prove it," while the plaintiff has to reveal much of his or her evidence in order to defeat summary judgment. Thus, even if the defendant doesn't win the summary judgment motion, they have had the benefit of a great discovery device, one that reveals their opponent's theories and strategies for how to prove the case. Therefore, when you respond to a summary judgment motion, you are faced with a difficult dilemma: You don't want to let the other side know all you've got and how you plan to put it together, but if you leave something out summary judgment might be granted. You will have to use your best judgment on this, but it is not particularly wise to leave something important out of a summary judgment response.
Another problem, especially for prisoners, is the need to gather evidence on somewhat short notice. Most federal districts have time limits within which to respond to summary judgment motions, often just 2-3 weeks. As I discussed in my last column, if there hasn't been enough time to do proper discovery, you may be able to get consideration of the motion put off under See Rule 56(f). However, if there has been time to do discovery, then you will have to respond to the summary judgment motion within the time given by the local rules. Therefore, it is important to be as prepared as possible to present evidence on short notice.
One very helpful way to respond to a summary judgment motion in a prison case is to use the defendants' own documents (or statements defendants make in their pleadings). If documents are written by the defendants, they are not hearsay under the rules; they are admissible at trial as admissions by the defendants (assuming you can show they are authentic). If you have memos or letters written by defendants that tend to prove parts of your case, especially on difficult-to-prove matters like state of mind (for example, "deliberate indifference"), they can be extremely helpful in defeating a summary judgment motion.
This highlights again, as discussed in more detail in the last column, the need to do early discovery. If you have, as is permitted by the discovery rules, asked the defendants in a Request For Production of Documents for all the documents they have relating to your claims, you will have increased your chances of defeating their summary judgment motion.
Summary judgment is a complicated subject which cannot be fully covered in the space I have had. I have tried in this column and the last one to give you an outline of what you face in responding to summary judgment motions. However, each case is unique, and this general overview is not intended to provide specific advice for your particular case.
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