90 F.3d 245 (7th Cir. 1996), 95-2662, Ford v. Wilson

Docket Nº:95-2662.
Citation:90 F.3d 245
Party Name:Roy E. FORD, Plaintiff-Appellant, v. Curtis WILSON, Defendant-Appellee.
Case Date:July 25, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 245

90 F.3d 245 (7th Cir. 1996)

Roy E. FORD, Plaintiff-Appellant,


Curtis WILSON, Defendant-Appellee.

No. 95-2662.

United States Court of Appeals, Seventh Circuit

July 25, 1996

Submitted April 25, 1996.

Page 246

Roy E. Ford (submitted on briefs), Rockford, IL, pro se.

Joshua G. Vincent, Hinshaw & Culbertson, Chicago, IL, Thomas H. Boswell, John A. Sandberg, John E. Prochaska, and Gregory T. Snyder, Hinshaw & Culbertson, Rockford, IL, for defendant-appellee.

Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.

POSNER, Chief Judge.

Roy Ford brought suit under 42 U.S.C. § 1983 against a police officer who had arrested him after a traffic stop. The district judge granted summary judgment for the defendant, noting that Ford had not submitted an affidavit or equivalent evidence in opposition to the defendant's affidavit. But he had. For he had verified his complaint, and the complaint contains factual allegations that if included in an affidavit or deposition would be considered evidence, and not merely assertion. Rule 56(e) of the Federal Rules of Civil Procedure provides that "when a motion for summary judgment is made and supported as provided in this rule, an adverse

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party may not rest upon the mere allegations or denials of the ... party's pleading." See also Advisory Committee's Note to 1963 Amendment to Subdivision (e). But Ford did not rest upon "mere allegations or denials" in his complaint. By declaring under penalty of perjury that the complaint was true, and by signing it, he converted the complaint, or rather those factual assertions in the complaint that complied with the requirements for affidavits specified in the rule--that they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein," Fed.R.Civ.P. 56(e)--into an affidavit. That it was not called "affidavit" is of no moment, Northwestern Nat'l Ins. Co. v. Corley, 503 F.2d 224, 231 (7th Cir.1974); nor that much contained within it did not comply with the stringent requirements of the rule, for that is true of many so-called "affidavits" submitted in support of or opposition to summary judgment. Because the complaint was verified, 28 U.S.C. § 1746, as of course an affidavit must be, Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985), those parts of the complaint that satisfied the requirements that we quoted above were affidavit material. Every circuit to consider the issue has so held. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995); King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994). We have implied our agreement with these courts, see, e.g., Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 355 n. 9 (7th Cir.1992); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 119 (7th Cir.1981), and today make our agreement explicit.

We do not mean to commend the practice. The federal rules envisage the submission of evidentiary material in response to a motion for summary judgment as a means of sharpening the issues, so that the judge can determine just what if anything must be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Algie v. RCA Global Communications, Inc., 891 F.Supp. 875, 883 (S.D.N.Y.1994). For the plaintiff, instead of doing this, just to point to factual assertions in his verified complaint is bound to make the identification of genuine issues of material fact difficult, complicating the work of the judge. But we do not think that such a departure from proper practice is so egregious or such a burden on the court as to warrant the fell sanction of dismissal of the suit, GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993); Newman v. Metropolitan Pier & Exposition Authority, 962 F.2d 589, 591 (7th Cir.1992), especially when the plaintiff does not have a lawyer yet is not warned.

The judge's oversight, however, is inconsequential. The factual allegations in the complaint that are based on Mr. Ford's personal knowledge and must therefore be taken as true in considering whether summary judgment was properly granted amount only to the claim that although he was driving in a perfectly lawful fashion Officer Wilson stopped him. They got into an altercation that led to Wilson's arresting Ford for obstructing...

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