2003 | Cited 0 times | D. Maine | March 11, 2003


On December 6, 2002, Plaintiff Robert Dellairo moved for partial summary judgment on the issue of liability in this prisoner civil rights case. On December 17, 2002, defendant Timothy Garland moved for an extension of time to respond to the motion, asking that the time be enlarged to February 3, 2003, the date which then coincided with the designation of defendant's expert. I granted the request. On his request I again extended the deadline for expert designation to March 3, 2003. No specific request was then made to extend the response to the pending partial summary judgment motion, but in fairness I treated that deadline as extended as well. The deadline has now passed and the motion is in order for disposition. Even though no opposition has been filed, I nevertheless recommend that the court DENY the motion for the following reasons.

Dellairo's motion does not comply with either Rule 7 or Rule 56 of the Local Rules. His motion for partial summary judgment (Docket No. 30) is not accompanied by a memorandum of law as required by Local Rule 7(a) and therefore I do not know the legal basis upon which he bases his claim that he is entitled to partial summary judgment. His Local Rule 56(b) & (e) supporting statement of material facts (Docket No. 31) does not contain the necessary record citations. The only record material provided by Dellairo is his declaration made under penalty of perjury consisting of eight numbered paragraphs. (Docket No. 32). For these procedural reasons I cannot recommend that judgment be entered for Dellairo as a matter of law.

Furthermore, even if Dellairo's summary judgment motion did not contain these numerous procedural errors, as a substantive matter he has not set forth sufficient facts to warrant the entry of judgment on the issue of liability against Timothy Garland. In fact his record support consisting of the eight-paragraph declaration under penalty of perjury mentions Garland by name only in paragraph eight. There Dellairo says in conclusory fashion that Garland "denied my rights." It is impossible to ascertain from the context of the information what Garland himself did to violate Dellairo's constitutional rights other that not "provide serious medical care." That allegation, stated in conclusory fashion as Dellairo does in the declaration, does not support the entry of judgment in his favor. Accordingly I recommend that the court DENY the motion for partial summary judgment.


A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636 (b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.

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