United States District Court, N.D. Mississippi, Greenville Division
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court is Sean Williams' second motion for summary
judgment. Doc. #27.
February 9, 2018, James Arthur Sharkey, with the assistance
of counsel, filed a complaint in the United States District
Court for the Northern District of Mississippi against (1)
Humphreys County, Mississippi; (2) J.D. Roseman, in his
individual capacity and official capacity as sheriff of
Humphreys County; and (3) Sean Williams, in his individual
capacity and official capacity as deputy sheriff of Humphreys
County. Doc. #1. The complaint asserts state and federal
claims based on allegations of an unlawful arrest of Sharkey
by Williams which included the use of excessive force.
Id. at 2-5. The defendants jointly answered the
complaint on March 5, 2018. Doc. #8.
April 9, 2018, Williams, asserting the defense of qualified
immunity, filed a motion seeking summary judgment on the
claims brought against him in his individual capacity. Doc.
#12. That day, United States Magistrate Judge Jane M. Virden
stayed the case pending a decision on the summary judgment
motion. Doc. #14. Three days later, Sharkey's counsel
moved to withdraw due to “a fundamental difference
between himself and … Sharkey.” Doc. #15.
Sharkey's counsel was granted leave to withdraw, Judge
Virden directed Sharkey to inform the Court whether he
intended to proceed pro se. Doc. #21. On or about July 11,
2018, Sharkey filed a document dated July 6, 2018, which both
stated that he is proceeding pro se and appeared to respond
to Williams' summary judgment motion with medical records
and a series of unsworn declarations prepared by himself and
three alleged witnesses to his arrest-Dorothy Kersh
(Sharkey's sister), Eddie Earl Smith (Sharkey's
brother), and Charles Sharkey (Sharkey's brother). Docs.
#22, #22-1. On October 1, 2018, the Court granted Sharkey
leave to file a formal response to the motion for summary
judgment. Doc. #23. Sharkey did not file a formal response.
March 25, 2019, the Court, noting that Williams did not
challenge the admissibility of the unsworn declarations,
found the facts in the declarations created genuine issues of
material fact. Doc. #26. However, because Sharkey submitted
the documents prior to having been granted leave to do so and
because the nature of the documents were unclear, the Court
declined to consider the documents before giving Williams an
opportunity to lodge an objection to their admissibility.
Id. at 6-7. Accordingly, the Court denied the motion
for summary judgment without prejudice. Id. at 7.
filed a second motion for summary judgment on April 8, 2019.
Doc. #27. In seeking summary judgment, Williams specifically
challenges the admissibility of the unsworn declarations.
Doc. #28 at 10. Sharkey filed an untimely response to the
motion for summary judgment on April 29, 2019. Doc. #29.
Williams filed an untimely reply on May 13,
2019. Doc. #31.
may enter summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“An issue is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the
nonmoving party.” Jones v. United States, 936
F.3d 318, 321 (5th Cir. 2019) (cleaned up).
“party seeking summary judgment always bears the
initial responsibility of demonstrating the absence of a
genuine issue of material fact.” Id.
(alterations omitted). When the movant would not bear the
burden of persuasion at trial, he may satisfy his initial
summary judgment burden “by pointing out that the
record contains no support for the non-moving party's
claim.” Wease v. Ocwen Loan Servicing, L.L.C.,
915 F.3d 987, 997 (5th Cir. 2019) (quoting Stahl
v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th
Cir. 2002)). If the moving party satisfies his initial
burden, the nonmovant “must go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial.” Jones, 936 F.3d at 321
Rule of Civil Procedure 56(c) “permits a party to
support or dispute summary judgment through unsworn
declarations, provided their contents can be presented in
admissible form at trial.” Patel v. Tex. Tech
Univ., 941 F.3d 743, 746 (5th Cir. 2019). “In
other words, the party submitting the material must be able
to demonstrate how it will be possible to introduce the
content or substance of the material at trial.” 11
Moore's Federal Practice - Civil §
so because “[i]f the substance cannot be put into an
admissible form, the material can have no bearing on whether
a trial is necessary, which is the ultimate determination to
be made by the court in ruling on a motion for summary
judgment.” Id. Where a party objects to
summary judgment evidence, “[t]he burden is on the
proponent to show that the material is admissible as
presented or to explain the admissible form that is
anticipated.” Fed.R.Civ.P. 56 advisory committee's
note to 2010 amendment.
motion for summary judgment, Williams argues that
“Sharkey cannot show that the statements [in the
unsworn declarations] could be offered in a form admissible
at trial.” Doc. #28 at 10. Specifically, Williams
contends he “has no reason to believe that the
statements were actually written by the alleged
signatories.” Id. Sharkey, in his response,
states that he intends “to reserve the unsworn
testimony for trial purposes.” Doc. #29 at 2.
considering the expected admissibility of a hearsay
statement, such as an unsworn declaration introduced for the
truth of the matter asserted,  a “court should be free to
ask the plaintiff what reason she has for believing that [the
declarant] will in fact be available to testify at trial [and
the] reasons for not obtaining sworn statements or sworn
testimony from [the declarant] at this time.” 11
Moore's Federal Practice - Civil § 56.91.
“Depending on the circumstances, the failure to secure
sworn statements at the summary-judgment stage-or to confirm
that the witnesses ...