Lewis v. Faulkner, No. 80-2198

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL, BAUER, and POSNER; POSNER
Citation689 F.2d 100
Docket NumberNo. 80-2198
Decision Date25 August 1982
PartiesArthur LEWIS, Plaintiff-Appellant, v. Gordon H. FAULKNER, et al., Defendants-Appellees.

Page 100

689 F.2d 100
Arthur LEWIS, Plaintiff-Appellant,
v.
Gordon H. FAULKNER, et al., Defendants-Appellees.
No. 80-2198.
United States Court of Appeals,
Seventh Circuit.
Submitted Aug. 11, 1982.
Decided Aug. 25, 1982.

Page 101

Richard Lee Owen, III, Michigan City, Ind., for plaintiff-appellant.

Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before PELL, BAUER, and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This appeal raises a recurrent issue in prisoners' civil rights litigation: the responsibility of the trial judge to advise a prisoner not represented by counsel of the consequences of failing to respond to a motion for summary judgment supported by affidavits.

On April 8, 1980, the plaintiff, who is a prisoner at an Indiana state prison, filed a pro se complaint under 42 U.S.C. § 1983 against an official and employees of the prison, alleging that they had denied him due process of law during a disciplinary proceeding against him. On June 20, the defendants filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative for summary judgment. Attached to the motion was an affidavit that contradicted several of the facts alleged in the complaint. Nowhere in the motion papers, however, was there any indication of the consequence to the plaintiff of his failing to counter the defendants' affidavit with affidavits of his own-the consequence being that the facts asserted in the defendants' affidavit would be taken as true if the motion was treated as one for summary judgment. See Rule 56(e); Adickes v. S. H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). The motion papers do not even cite Rule 56.

The plaintiff presumably received the motion shortly after it was filed (the affidavit of service states that it was mailed the same day), though the record does not indicate when. He did not respond, and there was no hearing on the motion and no communication to the plaintiff concerning it from the defendants or the district judge until July 28, when the judge granted the motion and dismissed the complaint in an opinion that relied heavily on the affidavit that had been submitted with the motion. The plaintiff has appealed, arguing that he was entitled to notice of the consequences of failing to respond to the motion.

Rule 56 does not say in so many words that the judge should give the opposing party a reasonable opportunity to submit counter affidavits to those of the movant; but the implication is unmistakable, especially in subsection (f), which states: "Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Moreover, Rule 12(b)...

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514 practice notes
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...U.S.C. Sec. 2254. The return filed by the respondents on September 3, 1992, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). This court has also examined the Traverse filed by the petitioner on November 9, 1992, along with proposed Interrogatories ......
  • United States v. Khaled Elsayed Mohammad Abo Al Dahab, Civil Action No. 15-514 (BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 19, 2017
    ...[the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion’ " (quoting Lewis v. Faulkner , 689 F.2d 100, 102 (7th Cir. 1982) ))). This Court ordered the government to serve the order on the defendant by January 18, 2017, by email and Facebook m......
  • Proctor v. Dist. of Columbia, Civil Action No. 13–00985
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 25, 2014
    ...[the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion’ ” (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982) )). This order, commonly referred to as a Fox / Neal Order, both alerted the plaintiff of the need to respond to the Dist......
  • Pruitt v. Mote, No. 05-1620.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 3, 2007
    ...court "should at least warn a pro se litigant of the possible consequences of any neglect" in litigating case); Lewis v. Faulkner, 689 F.2d 100, 102-03 (7th Cir.1982) (pro se prisoner-plaintiff must be warned in plain English of consequences of failing to respond properly to defendant's mot......
  • Request a trial to view additional results
514 cases
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...U.S.C. Sec. 2254. The return filed by the respondents on September 3, 1992, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). This court has also examined the Traverse filed by the petitioner on November 9, 1992, along with proposed Interrogatories ......
  • United States v. Khaled Elsayed Mohammad Abo Al Dahab, Civil Action No. 15-514 (BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 19, 2017
    ...[the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion’ " (quoting Lewis v. Faulkner , 689 F.2d 100, 102 (7th Cir. 1982) ))). This Court ordered the government to serve the order on the defendant by January 18, 2017, by email and Facebook m......
  • Proctor v. Dist. of Columbia, Civil Action No. 13–00985
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 25, 2014
    ...[the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion’ ” (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982) )). This order, commonly referred to as a Fox / Neal Order, both alerted the plaintiff of the need to respond to the Dist......
  • Pruitt v. Mote, No. 05-1620.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 3, 2007
    ...court "should at least warn a pro se litigant of the possible consequences of any neglect" in litigating case); Lewis v. Faulkner, 689 F.2d 100, 102-03 (7th Cir.1982) (pro se prisoner-plaintiff must be warned in plain English of consequences of failing to respond properly to defendant's mot......
  • Request a trial to view additional results

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