Ted Wisneski v. Lincoln Cty. Quorum

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No. 94-1612
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Ted Wisneski, *
*
Appellant, *
*
v. *
*
Lincoln County Quorum Court; *
Jean Mullikin, Member of *
Lincoln County Quorum Court; *
Neb Ryall, Jr., Member of *
Lincoln County Quorum Court; *
Jimmy Powell, Member of Lincoln * Appeal from the United States
County Quorum Court; Aaron Burns,* District Court for the
Member of Lincoln County Quorum * Eastern District of Arkansas.
Court; Katie Blake, Member of * [UNPUBLISHED]
Lincoln County Quorum Court; *
Howard Raley, Member of Lincoln *
County Quorum Court; W. H. *
Venable, Member of Lincoln *
County Quorum Court; J. C. *
Leonard, Member of Lincoln *
County Quorum Court; A. B. Allen,*
Member of Lincoln County Quorum *
Court; Boyce Fletcher, *
Individually and in his *
capacity as County Judge of *
Lincoln County, Arkansas, *
*
Appellees. *
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Submitted: December 26, 1995
Filed: January 5, 1996
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
Ted Wisneski appeals the district court's1 grant of summary
judgment to defendants in his 42 U.S.C. § 1983 action alleging that
he was denied procedural due process in connection with his
termination as a Lincoln County employee. We affirm.
In its order granting summary judgment, the district court
stated that it would consider defendants' statement of undisputed
material facts admitted, because Wisneski had failed to file a
controverting statement, as provided for by local rule. Wisneski
argues, without supporting authority, that the district court's
application of the local rule violated Federal Rule of Civil
Procedure 56(c) and deprived him of his right to rely on the
"existing verified pleadings, depositions, answers to
interrogatories, etc." already in the record. He argues that the
rule also deprived the district court of its function in assessing
the record as a whole.
We reject Wisneski's arguments. The district court did not
abuse its discretion in applying the local rule because the court
applied it in a manner consistent with Federal Rule of Civil
Procedure 56. See Silberstein v. Internal Revenue Service, 16 F.3d
858, 860 (8th Cir. 1994) (application of local rules subject to
abuse of discretion review based on facts of each case). It is
apparent from other portions of the court's order that the court
reviewed the summary judgment papers, found that defendants'
exhibits supported their statement of facts, and recognized that
Wisneski could not rest on his assertions, but was under a duty to
come forward with evidence controverting defendants'
documentation--a duty he failed to meet. Fed. R. Civ. P. 56(e)
(non-moving party cannot rest on allegations of pleadings, but
1
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
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"must set forth specific facts showing that there is a genuine
issue for trial"); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986) (summary judgment can be avoided only if there is
sufficient evidence favoring non-moving party that reasonable jury
could return verdict for that party).
Moreover, defendants were appropriately granted summary
judgment because Wisneski received the process due him.
Defendants' undisputed evidence shows that Wisneski received a
counseling session and written warning prior to being fired, and a
post-termination hearing during which he was represented by counsel
and given the opportunity to testify and cross-examine witnesses.
See Post v. Harper, 980 F.2d 491, 493 (8th Cir. 1992) (due process
satisfied when employee had pretermination opportunity to meet with
supervisor and respond to charges, and received post-termination
hearing where he was represented by counsel, testified, introduced
evidence, and cross-examined witnesses); see also Demming v.
Housing & Redevelopment Auth., 66 F.3d 950, 954 (8th Cir. 1995)
(due process satisfied when employee received notice of hearing,
copy of evaluation form, and opportunity to respond to charges at
hearing); Winegar v. Des Moines Indep. Sch. Dist., 20 F.3d 895, 901
(8th Cir.) ("``something less'" than full evidentiary hearing is
sufficient pretermination process), cert. denied, 115 S. Ct. 426
(1994).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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