(DOWNLOAD) "Sellers v. Henman" by Seventh Circuit U.S. Court of Appeals # eBook PDF Kindle ePub Free
eBook details
- Title: Sellers v. Henman
- Author : Seventh Circuit U.S. Court of Appeals
- Release Date : January 18, 1994
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 52 KB
Description
POSNER, Chief Judge. Sellers, an inmate in a Texas state prison, brought this suit seven years ago against officials of the federal prison at Marion, Illinois, where he was then imprisoned, claiming they had violated his constitutional rights. Bivens v. Six Unknown, Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). The district court granted summary judgment for the defendants and dismissed the suit. Sellerss appeal claims that he was not given a reasonable opportunity to submit affidavits in response to those the defendants had filed in support of their motion for summary judgment. Sellers makes two arguments, one of which has merit. The unmeritorious argument is that he did not have to file his counteraffidavits until the district court ruled on his motion to strike the defendants affidavits on the ground that they did not comply with Fed. R. Civ. P. 56. No rule entitles a litigant to proceed in that way. Manetas v. International Petroleum Carriers, Inc., 541 F.2d 408, 413 (3d Cir. 1976). Rule 12(a)(4)(A) allows a party that files a motion to strike a pleading to delay filing his responsive pleading until ten days after the motion is denied, but an affidavit is not a pleading, or a counteraffidavit a responsive pleading, so the rule is not applicable. Sellers could have asked the district court for an extension of time within which to file his counteraffidavits, but he could not arrogate the decision on timing to himself on the basis of his personal views of optimal procedure. Which is not to say that his motion to strike had no merit. One of the defendants key affidavits was unsigned and hence unsworn, and therefore did not comply with Rule 56(e); cf. DeBruyne v. Equitable Life Assurance Society, 920 F.2d 457, 471 (7th Cir. 1990), so we do not understand the district courts refusal to strike it.
 "Sellers v. Henman" by Seventh Circuit U.S. Court of Appeals # eBook PDF Kindle ePub Free){kind=link}