Gamblin, Tim L. v. Groves, Danny , 155 F. App'x 921 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 22, 2005*
Decided November 30, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1408
Appeal from the United States District
TIM L. GAMBLIN, Court for the Southern District of
Plaintiff-Appellant, Indiana, Indianapolis Division
v. No. 1:04-cv-0094-DFH-TAB
DANNY GROVES, et al., David F. Hamilton,
Defendants-Appellees. Judge.
ORDER
Pretrial detainee Tim Gamblin was injured in a fight with Lee LeMaster,
another pretrial detainee, and sued four jail employees claiming they violated his
rights under the Due Process Clause of the Fourteenth Amendment by placing him
in a cell block with LeMaster. The defendants moved for summary judgment and,
pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), admonished Gamblin
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1408 Page 2
that the district court would accept as true the factual statements in their supporting
memorandum unless he offered contradictory evidence. Gamblin instead obtained
one extension of the response deadline, and then submitted a “Request for Entery
[sic]” asking for additional time to contact witnesses. Gamblin explained that he had
neglected to contact his proposed witnesses because he assumed the district court
would subpoena them for him and “find[] the truth in court.” In unsworn “notes”
attached to this submission, Gamblin detailed his recollection of the fight with
LeMasters.
The district court understood Gamblin to be asking again in his Request for
Entery for more time to respond to the defendants’ motion for summary judgment,
and refused to allow another extension. The court reminded Gamblin that he still
would be required to file his response by the stated deadline (then about a month
away), and when that deadline passed with no submission from Gamblin, the court
granted summary judgment for the defendants. After noting that the motion would
be resolved on the defendants’ evidence because Gamblin never responded, the court
concluded that the undisputed evidence established that none of the defendants
knew in advance that LeMaster posed a threat to Gamblin, and that none of them
stood by and allowed the fight to continue as Gamblin alleged in his complaint.
On appeal Gamblin argues that the factual allegations in his complaint and
Request for Entery created a genuine issue of material fact and should have been
considered at summary judgment because he submitted both documents under the
penalty of perjury. True, a complaint or other submission made under penalty of
perjury can sometimes substitute for a formal affidavit in rebutting a motion for
summary judgment. 28 U.S.C. § 1746; Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.
1996). But not here. Gamblin knew that the district court had viewed his Request
for Entery as a motion for more time to respond to the motion for summary
judgment, not as the response itself. Gamblin had ample time to correct the district
court if he thought the submission was misunderstood but he stood silent. We cannot
fault the district court, then, for deeming the defendants’ motion unopposed. See
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990) (holding that district court did not abuse its discretion in failing to construe
litigant’s statement that court should “enlarge the issues to be considered” as a
motion for leave to amend the complaint where statement was included in motion to
reconsider adverse ruling as summary judgment and litigant did not otherwise
comply with requirements of Fed. R. Civ. P. 15).
Moreover, even if characterized as a response to the motion for summary
judgment, the Request for Entery does not direct the district court to any specific
allegations in the complaint, and district courts are not required to search the record
No. 05-1408 Page 3
for evidence sufficient to defeat a motion for summary judgment. See Ruffin-
Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 609-10 (7th Cir. 2005);
Doe v. Cunningham, 30 F.3d 879, 885 (7th Cir. 1994). Neither does the submission
itself include the evidence necessary to establish the existence of a material issue of
fact; all the Request for Entery tells us is that Gamblin made no attempt to contact
his witnesses. And though the attached “notes” do supply some detail, they are
unsworn. See Fed. R. Civ. P. 56(e); Steinle v. Warren, 765 F.2d 95, 100 (7th Cir.
1985). Without the facts stated in Gamblin’s complaint or “notes,” he has not
presented any evidence to defeat the defendants’ motion for summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Black Agents & Brokers
Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005).
Accordingly, we AFFIRM the grant of summary judgment for the defendants.