Prisoners Self Help Legal Clinic
PO Box 798 • Newark • new jersey 07101
Website: http://pshlc.org

INSTRUCTIONS AND SAMPLE LETTER-BRIEF IN
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

 	New Jersey Federal Practice (Local) Rule 56.1 requires that: "On motions for summary judgment, each side shall furnish a statement which sets forth material facts as to which there exists or does not exist a genuine issue. "

	In prison   cases, summary judgment motions are often made by defendant prison officials 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 added.)

	Legal Standards for Deciding Summary Judgment Motions. Summary judgment under 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 would do, 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 judge in a non-jury trial - could give a verdict in favor of the non-moving party.  The U.S. Supreme Court has stated the requirement as follows:
" The inquiry performed is the threshold inquiry of determining 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."
	Anderson v. Liberty Lobby, Inc.  477 U.S. 242, 250-251 (1986).
According to Anderson, 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 non-moving party's evidence - your evident if you are the plaintiff responding to the defendants' summary judgment motion - in the light most favorable to you. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. However, this does NOT mean 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 these standards.

What are "Genuine Issues" of Material Fact Sufficient to Avoid Summary Judgment? 

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 that as to each material fact, a trial jury or judge could find in your favor at trial.

	It is important to note, however, that you cannot simply 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 produce 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 own statements that you think you have a claim.

	In addition, if you are the plaintiff, there must be genuine issues (or uncontested 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 there is no way that the plaintiff could win at trial. For example, in making a claim of denial of adequate medical care, it is necessary for you to show that (1) defendants were deliberately indifferent (2) to a serious medical need.  Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976). If you do not have enough evidence to permit a jury to find that defendants were deliberately indifferent, not merely negligent, you will lose a summary judgment motion, no matter how much you suffered or how strong your evidence is on the other elements.

	The Process for Establishing Genuine Issues of Fact. The U.S. Supreme Court a few years ago clarified the summary judgment process as it relates to determining "genuine issues," in a way that favored defendants, by making summary judgment easier to get in federal court than it was before.  The case, Celotex Corp. v. Catrett, 477 U.S. 317 (1986), must be read and 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 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 the absence of evidence of an essential element that the plaintiff must prove in order to win at trial.

	What this means is that, after a reasonable time to do discovery (see PSHLC's pamphlet on Discovery), 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 the prison medical care case discussed before, 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 don't, 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 based 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 (hearsay), but the person could testify to the things they said in their affidavit, so long as they have personal knowledge, i.e., saw 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 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 defendants don'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 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.  If there hasn't been enough time to do proper discovery, you may be able to get consideration of the motion put off under 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 helpful way to respond to a summary judgment motion in a prison case is to use the defendants' own documents (or statements they made in their pleadings).  If documents are written by the defendants, they are not hearsay under the rules; they are admissible at trial as admissions (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 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.	

SAMPLE LETTER-BRIEF

Honorable John F. Gerry, U.S.D.J.
United States District Court 
U.S. Courthouse & P.O. Bldg.
Market Street
Camden, New Jersey 08101

	Re:	Name of Case - Example - PLAINTIFF (" Knick") v. 			 		DEFENDANT (" Rocket")
		Civil Action No.

Dear Judge Gerry,
	Please accept this letter brief in lieu of a more formal brief in opposition to defendant's motion for a summary judgment, in the above captioned matter.

STATEMENT OF THE CASE
	[INSTRUCTIONS: Consult our Pro Se 1983 Pamphlet for more detailed explanations. In Statement of Facts section, set forth chronologically, the facts and circumstances surrounding your Sec. 42 U.S.C. 1983 claim. The following should act as a guide for setting forth the facts of the case:]
	On or about September 8, 1993, while incarcerated at Trenton State Prison, plaintiff, who was in severe pain from an abscess, received an emergency hospital pass for the infirmary. Subsequently, plaintiff was treated by Dr. Rose (M.D., not a dentist), who advised plaintiff that he had periodontal disease, and that the disease could be corrected if the plaintiff saw the Dentist in time. In the interim, because of the serious infection and nature of plaintiff's problem, Dr. Rose prescribed penicillin-VK 500mg.
	Immediately after the expiration of the prescription by Dr. Rose, plaintiff, acting consistent with procedures, placed his name on the "Daily Call" for access to the Dental Department. After several months without dental treatment and regular pain, plaintiff drafted a letter (dated December 7, 1993) to the Dental Department, setting forth both the prior treatment by Dr. Rose and the nature of plaintiff's medical condition.
	Approximately fifteen (15) days later, plaintiff received a written response from defendant  Dr. Dechert, advising that plaintiff would be scheduled for dental treatment the next week. However, plaintiff was never called for dental treatment until the instant litigation was filed with this Court. As a result, plaintiff endured, for an extended period of time, bleeding, swollen and pus filled gums, incidents of unremitting pain, humiliation through halitosis and the inability to eat fresh fruits, vegetables and other foods without pain or discomfort.
	The defendants, although undeniably aware of plaintiff's dental condition, failed to provide adequate medical care, even though plaintiff exhorted them to do so. Additionally, during discovery, plaintiff discovered documents which revealed a pattern of indifference towards similarly situated prisoners. Moreover, these intentional acts and omissions by the defendants were sufficiently harmful to the plaintiff to evidence a deliberate indifference to plaintiff's serious medical needs.

LEGAL ARGUMENT 

		DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE.

	Summary Judgment shall be granted where the pleadings, depositions, answers to 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. Fed.R.Civ.P. 56(c). A party opposing a motion for summary judgment may not rest upon mere allegations or denials of the pleadings, but must set forth specific facts showing that there are genuine issues for trial. Allison v. Flexway Trucking, Inc., 28 F.3d 64, 67 (6th. Cir. 1994). The court is required, in resolving a motion for summary judgment, to determine whether "the evidence is such that a reasonable jury could return a verdict for the non-moving party".  Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). See also Acevedo v. Forcinito, 820 F.Supp. 886 (D.N.J. 1993). To make this determination, the district court shall believe the evidence of the non-moving party and draw all reasonable inferences in the non-movant's favor. Anderson, 477 U.S. at 255.
	 In determining a summary judgment motion, the court's function is not to assess the truth of the matter asserted. Anderson, 477 U.S. at 249. The court may not make credibility determinations, or weigh the evidence. Id. at 252. While the movant bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of their record which demonstrate the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), the non-moving party, after adequate time for discovery must then make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 323; Acevedo v.Forcinito, 820 F.Supp at 887.  Fed.R.Civ.P. 56(e). The non-moving party must raise more than a mere scintilla of evidence in its favor in order to overcome a summary judgment motion. Mastomatteo v. Simock, 1994 WL 597629, 2 (3d.Cir 1994).  If the record thus construed cannot lead the trier of fact to find for the non-moving party, there is no genuine issue for trial and summary judgment shall be granted. Matsuchita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 587 (1986). 
	"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts 'that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Farid S. Khair v. Campbell  Soup Co., 893 F.Supp. 316, 326 (D.N.J. 1995). If the moving party is the defendant,  and does not bear the burden of proof on the underlying claim, the moving party may satisfy its burden by demonstrating the absence of an essential element of the opponent's case. Id. at 325; see also National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1581-82 (3d Cir. 1992). 
`Plaintiff's claims are grounded upon § 1983. In order to state a claim under § 1983, a plaintiff must show a violation of a right secured by the Constitution or laws of the United States and demonstrate that the conduct complained of was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988); Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990).  A prison official violates the Eighth Amendment when (1) the deprivation alleged is objectively "sufficiently serious" - that is, when the prisoner "is incarcerated under conditions posing a substantial risk of serious harm," and (2) the prison official acted with "deliberate indifference" to the prisoner's health or safety. Farmer v. Brennan, 114 S.Ct. 1970, 1976-77 (1994). 
	[INSTRUCTIONS: Having set forth the standards whereby summary judgment may be granted (or must be denied), you must now show a material factual dispute between you and the movant, i.e., the person who wants to have summary judgement granted. Your objective is to convince the court that evidence must be weighed, live testimony must be heard and credibility must be determined in order to arrive at a fair result. This is where you should set forth all the material facts as to which there exists a genuine issue.]
	Despite defendants' conclusory allegations in their moving papers, they have not shown that the material facts of this case are not in dispute. When reviewing the Complaint, as well as the Answer and defendants' moving papers, it is clear that there are significant material facts in dispute. It is also clear that plaintiff has provided evidence that defendants were deliberately indifferent to plaintiff's serious medical needs.
	The defendants allege that because plaintiff did not advise them of his dental problem, they were unaware of the plaintiff's medical condition. On the other hand, plaintiff alleges that the defendants had actual notice of both the existence of his dental problem and its seriousness. Moreover, the defendants had ten (10) months to follow up on the plaintiff's complaints and ensure that he received the requisite care.  [Etc. etc.]
	Since there are clear disputes of material fact, the defendants are not entitled to judgment as a matter of law. Live testimony must be heard and credibility must be determined in order to arrive at a fair result. For these reasons, the defendants' motion for summary judgment must be denied.  

CONCLUSION
	The defendants have failed to demonstrate that they are entitled to Summary Judgment in this matter, and therefore their motion should be denied.
			  				 _________________________
								(Signature)
								Defendant Pro Se

Date: