March 30, 2001.
Before the Court is the Defendant City of Dallas' Motion for Summary Judgment, filed January 17, 2001. For the reasons stated below, the motion is GRANTED as to Defendant City of Dallas alone.
This is a civil rights case, brought under 42 U.S.C. § 1983, in which the plaintiff, Ira Roberts ("Mr. Roberts") claims that Officer Pelts, another named defendant in this action, violated the constitutional rights of the Plaintiff and his son by using excessive force unnecessarily at the time Mr. Roberts was arrested. Officer Pelts has not been served in this action, and as such, has not made an appearance on this matter before this Court. On its motion, the city of Dallas contends that summary judgment should be granted in this case because Mr. Roberts has not pled sufficient facts to support his allegations that he was injured as a result of a custom or policy of the City, or that the City of Dallas was negligent in its training, supervision, and hiring of Officer Pelts.
First name unknown.
The Defendant served Mr. Roberts' attorney with a copy of their Motion for Summary Judgement on January 8th, 2001. Mr. Roberts has responded by briefly reiterating the general allegations in his complaint, and arguing that discovery has not been completed in the case. The Court notes here that according to this Court's Scheduling Order, dated September 12, 2000, all discovery in this matter was to be completed by January 8, 2001. To date, no discovery has taken place on either side.
The Defendant is not automatically entitled to summary judgment as a result of Mr. Roberts' failure minimalist response to the Defendant's motion. John v. State of Louisiana (Board of Trustees for State Colleges Universities), 757 F.2d 698, 707-08 (5th Cir. 1985). If the Defendant fails to discharge their initial burden, the Plaintiff has no obligation to respond at all. Id. at 708. However, if the Defendant meets their burden under Rule 56, Mr. Roberts cannot survive the motion by resting on the mere allegations of his pleadings. Isquith for and on Behalf of Isquith v. Middle South Utilities. Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988).
Although the Court is not permitted to grant a summary judgment by virtue of Mr. Roberts' minimal response and lack of discovery material or supporting affidavits therein, it may accept as undisputed the facts so described in support of the Defendants' motion if the Plaintiff fails to controvert those facts in his response. Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). Summary judgment is appropriate if Mr. Roberts (as the nonmovant) fails to set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.), cert. denied, 506 U.S. 825 (1992); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (once movant for summary judgment meets burden imposed by Rule 56, nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial).
On the basis of the submissions from the Defendant and Mr. Roberts' failure to designate specific facts about the practices of the City of Dallas that show a genuine issue for trial, the Court is persuaded that the Defendant is entitled to summary judgment.
It is so ORDERED.