United States District Court, S.D. Indiana, Indianapolis Division
GARGANUS T. MOORE, Plaintiff,
MR. UPCHURCH, ROBERT SHRINER, AMANDA ADAMS, Defendants.
ORDER GRANTING PLAINTIFF’S MOTIONS FOR LEAVE TO
FILE BELATED SURREPLY AND GRANTING DEFENDANT ADAMS’
MOTION FOR SUMMARY JUDGMENT
Patrick Hanlon United States District Judge.
prisoner civil rights action, the Court liberally construed
Mr. Moore’s complaint to allege that the defendants
discriminated against him on the basis of race when they
refused to change his work assignment after he passed a test
to become a materials handler and when they ignored his
request to move to a more desirable work schedule, yet
allowed another inmate to change his work schedule. His
complaint further alleged that the defendants retaliated
against him by firing him from his job for exercising his
First Amendment right to file grievances regarding his work
February 22, 2019, defendant Amanda Adams moved for summary
judgment on both claims against her. Dkt. 93. Mr. Moore
responded, and Ms. Adams replied. Dkt. 98, dkt. 105.
Moore filed a motion for extension of time to file a belated
surreply and a motion for leave to file a belated surreply to
defendant Adams’ reply. Dkt. 109, dkt. 112.
Rule 56-1(d) states:
A party opposing a summary judgment motion may file a
surreply brief only if the movant cites new evidence in the
reply or objects to the admissibility of the evidence cited
in the response. The surreply must be filed within 7 days
after the movant serves the reply and must be limited to the
new evidence and objections.
Mr. Moore seeks to file a belated surreply to address two
issues in Ms. Adams’ reply brief. First, Ms. Adams
stated that Mr. Moore had not filed an affidavit when in fact
he had. Second, Mr. Moore states that during his deposition
he was confused as to how to keep his discrimination and
retaliation claims separate and that he did not intend to
abandon either claim.
Adams argues that his motions fail to comply with Local Rule
6-1(a)(5), which requires that any request for extension of
time must be filed at least three business days prior to the
due date, and Local Rule 56-1(d), which requires that
surreplies be filed within seven days of the reply. Whether
the Court holds pro se litigants to the consequences of
violating the Court’s Local Rules is a matter of
discretion, Gray v. Hardy, 826 F.3d 1000, 1004-05
(7th Cir. 2016) (holding that district courts are not
required to hold pro se litigants to the potential
consequences of their failure to comply with the Local Rules
and can instead take “a more flexible approach, ”
including by ignoring the deficiencies in their filings and
considering the evidence they submit).
Mr. Moore states that he did not receive Ms. Adams’
response until April 2, 2019, the day his motion for
extension of time would have been due. As an inmate, Mr.
Moore does not have unfettered access to legal materials to
prepare his court filings. Instead, he can only attend the
law library for limited periods of time when prison officials
schedule him to do so. Under these circumstances, the Court
will not preclude Mr. Moore from filing a surreply because it
was not filed within the deadlines established in the local
Adams also asserts that Mr. Moore’s surreply does not
comply with the local rule because her response did not
contain new or objectionable evidence. But Mr. Moore’s
proposed surreply corrects Ms. Adams’ incorrect
assertion that he did not submit an affidavit. It also
attempts to explain Mr. Moore’s confusion at his
deposition regarding his discrimination claim. Again, it is
within the Court’s discretion whether to enforce the
local rules against a pro se litigant. Under the
circumstances presented here, the Court will consider the
information provided in Mr. Moore’s surreply.
Therefore, Mr. Moore’s motion for extension to file
belated surreply, dkt. , and motion for leave to file
belated surreply, dkt. , are granted.
The Court will consider Mr. Moore’s surreply when
deciding Ms. Adams’ motion for summary judgment.
Summary Judgment Standard
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). Whether a party asserts that a fact is undisputed or
genuinely disputed, the party must support the asserted fact
by citing to specific portions of the record, including
depositions, documents, or affidavits. Fed.R.Civ.P.
56(c)(1)(A). A party can also support a fact by showing that
the materials cited by an adverse party do not establish the
absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is
competent to testify on matters stated. Fed.R.Civ.P.
56(c)(4). Failure to properly support a fact in opposition to
a movant’s factual assertion can result in the
movant’s fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016).
“A genuine dispute as to any material fact exists
‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’”
Daugherty v. Page,906 F.3d 606, 609-10
(7th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc.,477 U.S. 242, 248 (1986)). The Court views
the record in the light most favorable to the non-moving
party and draws all reasonable inferences in that
party’s favor. Skiba v. Illinois Cent. R.R.
Co., 884 F.3d 708, 717 (7th Cir. 2018). It
cannot weigh evidence or make credibility determinations on
summary judgment ...