Lewis v. Faulkner, 80-2198
| Decision Date | 25 August 1982 |
| Docket Number | No. 80-2198,80-2198 |
| Citation | 689 F.2d 100 |
| Parties | Arthur LEWIS, Plaintiff-Appellant, v. Gordon H. FAULKNER, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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.
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) provides that if on a motion to dismiss for failure to state a claim, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." We cannot believe that the draftsmen of the Federal Rules intended a summary judgment opponent to have a reasonable opportunity to present factual materials only when the motion was captioned as a Rule 12(b)(6) motion-which as a matter of fact the motion in this case was.
We think it is therefore a fair inference from the rules themselves, irrespective of any implications of the due process clause of the Fifth or Fourteenth Amendments, that a district court cannot properly act on a motion for summary judgment without giving the opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and demonstrate that there is a genuine issue of material fact which precludes granting the defendants summary judgment. As the plaintiff in this case received the motion and must have had at least a month to respond to it-if only by requesting an extension of time to file counter affidavits-he had an opportunity to respond to the motion. But bearing in mind that he is a prisoner without assistance of counsel we do not think he had a reasonable opportunity, for in moving for summary judgment the defendants as we have said failed even to cite Rule 56, much less to indicate the disastrous consequence to an opposing party of not responding to such a motion. A reasonable opportunity presupposes notice. Mere time is not enough, if knowledge of the consequences of not making use of it is wanting.
The lack of explicit notice would not be troubling if it were obvious to a layman that when his opponent files a motion for summary judgment supported by affidavits he must file his...
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