At page 460 Summary judgment requirements and procedural notice for pro se litigants68 citing cases“may not be invoked where, as here, the affidavits present conflicting versions of the facts which require credibility determinations.”
- Scott v. Full House Mktg., Inc., No. 1:21-cv-00242 (M.D.N.C. Mar. 4, 2024).([Summary judgment] may not be invoked where . . . the affidavits present conflicting versions of the facts which require credibility determinations.)
- Young, No. 7:25-cv-00279 (W.D. Va. Mar. 3, 2026).Prison officials violate an inmate’s Eighth Amendment right to be free from physical harm inflicted by other inmates when prison officials are deliberately indifferent to “specific known risks of such harm.” Pressly v. Hutto, 816 F.2d 977,…
- Davis v. O'Malley, No. 1:24-cv-01802 (D. Md. June 12, 2025).Such circumstances represent notice that is “reasonably calculated to inform the nonmoving party of the conversion.” Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
- 3074 Centreville LLC v. M.A. Cohen & Co., Inc., No. 24-1054, 2025 WL 1177258 (4th Cir. Apr. 23, 2025).unpublishedThough summary judgment is typically not appropriate “where ‘affidavits present conflicting versions of the facts which require credibility determinations,’ ” Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016) (quoting Davis v. Zahradnick,…
- Anthry Milla v. Officer Brown, 109 F.4th 222 (4th Cir. 2024).published The court must provide this notice in a manner that is “sufficiently clear to be understood by a Pro se litigant and calculated to apprise him of what is required under Rule 56.” Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
- Kelso v. Applington, 548 P.3d 363 (Idaho 2024).publishedMd. 1995) (alterations in original) (first citing Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (per curiam); and then citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986)).
- Allen v. Norvell, No. 7:21-cv-00213 (W.D. Va. Sept. 7, 2023).Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987) (citing Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)).
- Monzon v. Taylor, No. 7:21-cv-00193 (W.D. Va. Sept. 13, 2022).Prison officials violate an inmate’s Eighth Amendment right to be free from physical harm inflicted by other inmates when prison officials are deliberately indifferent to “specific known risks of such harm.” Pressly v. Huto, 816 F.2d 977 ,…
- Balthrop v. Montgomery Cnty. Maryland, No. 8:21-cv-01107 (D. Md. Aug. 30, 2022).In particular, the Fourth Circuit has held that “[w]hen dealing with pro se litigants, . . . it is particularly important that the litigant either have notice and a chance to file appropriate supplementary materials for a summary judgment…
- Brown v. Prince Georges Cnty. Dep't of Corr., No. 8:20-cv-01087 (D. Md. July 13, 2021).(holding that factual allegations contained in a verified complaint may establish a prima facie case under § 1983 sufficient to defeat summary judgment)
Show 56 more citing cases
- Anderson v. Henderson, No. 1:20-cv-00480 (D. Md. May 27, 2021).The Eighth Amendment also protects inmates from physical harm committed by fellow inmates “resulting from the deliberate or callous indifference of prison officials to specific known risks of such harm.” Pressly v. Hutto, 816 F.2d 977, 979…
- Singfield v. Smith, No. 1:19-cv-02030, 2021 WL 1087062 (D. Md. Mar. 19, 2021).It “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). i. Failure to Protect The Eighth Amendment protects inmates from physical harm committed by fellow inmat…
- Appleby-El v. Wexford Health Sources, No. 8:19-cv-01868 (D. Md. Jan. 5, 2021).(holding that factual allegations contained in a verified complaint may establish a prima facie case under § 1983 sufficient to defeat summary judgment)
- Canty v. Corcoran, No. 1:18-cv-01404 (D. Md. Nov. 23, 2020).The Eighth Amendment protects inmates from physical harm committed by fellow inmates “resulting from the deliberate or callous indifference of prison officials to specific known risks of such harm.” Pressly v. Hutto, 816 F.2d 977, 979 (4th…
- Oglesby v. Brown, No. 8:19-cv-00016 (D.S.C. June 3, 2020).(holding that factual allegations contained in a verified complaint may establish a prima facie case under 42 U.S.C. ' 1983 sufficient to defeat summary judgment)
- Lawson v. S.W.V.R.J.A., No. 7:18-cv-00650 (W.D. Va. Feb. 3, 2020).Prison officials violate an inmate’s Eighth Amendment right to be free from physical harm inflicted by other inmates when prison officials are deliberately indifferent to “specific known risks of such harm.” Pressly v. Huto, 816 F.2d 977 ,…
- Sanders v. Marlboro Towing/Champion Towing & Servs., Inc, No. 8:17-cv-01721 (D. Md. Aug. 6, 2019).Additionally, Plaintiff Sanders’ affidavit states that the vehicle’s “plates were affixed and tags current.” (Id.) Summary judgment “may not be invoked where, as here, the affidavits present conflicting versions of the facts which require…
- Berryman v. Mullen, No. 1:16-cv-00047 (N.D. W. Va. Jan. 23, 2019).(explaining summary judgment “may not be invoked where . . . the affidavits present conflicting versions of the facts which require credibility determinations)
- Loper v. Help Me Grow of Cuyahoga Cnty., 2018-Ohio-2401.published(discussing analogous Fed.R.Civ.P. 12(b))
- Berryman v. Mullen, No. 1:16-cv-00047 (N.D. W. Va. Aug. 17, 2017).Davis v. Zahradrich, 600 F.2d 458, 460 (4th Cir. 1979); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
- Champion Pro Consulting Grp., LLC v. Impact Sports Football, LLC, 116 F. Supp. 3d 644 (M.D.N.C. 2015).publishedThis court cannot weigh the credibility of potential witnesses during the summary judgment stage, Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (per curiam); nevertheless, without testing Kiernan’s credibility, this court is allowe…
- Dreher v. Experian Info. Solutions, Inc., 71 F. Supp. 3d 572 (E.D. Va. 2014).publishedSummary judgment “may not be invoked where, as here, the affidavits present conflicting versions of the facts which require credibility determinations.” Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979).
- Dennis Phillips v. Marjusri Basu, 518 F. App'x 159 (4th Cir. 2013).unpublished(stating requirements for converting Fed.R.Civ.P. 12(b)(6) motion to summary judgment motion)
- Michael Williams v. G. Branker, 462 F. App'x 348 (4th Cir. 2012).unpublishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979).
- . Myers v. Loudoun Cnty. Sch. Bd., 500 F. Supp. 2d 539 (E.D. Va. 2007).published(discussing Roseboro requirements)
- Parramore v. Tru-Pak Moving Sys., Inc., 286 F. Supp. 2d 643 (M.D.N.C. 2003).publishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979); see Fed.R.Civ.P. 56(e) (comments to 1968 amendments).
- United States v. Fisher, 43 F. App'x 697 (4th Cir. 2002).unpublishedRule 8, Rules Governing Section 2255 Proceedings; Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979); Raines v. United States, 423 F.2d 526, 529 (4th Cir.1970).
- Harden v. Green, No. 01-6393 (4th Cir. Jan. 31, 2002).unpublishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
- Riddick v. Angelone, 22 F. App'x 164 (4th Cir. 2001).unpublishedGray v. Spillman, 925 F.2d 90, 95 (4th Cir.1991); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979).
- Harden v. Green, 27 F. App'x 173 (4th Cir. 2001).unpublishedDavis v. Zahrad-nick, 600 F.2d 458, 460 (4th Cir.1979).
- Abdussamadi v. Vandiford, No. 99-6225 (4th Cir. Aug. 11, 1999).unpublishedP. 12(b); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1471-72 (4th Cir. 1991); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
- Bryant v. Better Bus. Bureau of Greater Maryland, Inc., 923 F. Supp. 720 (D. Md. 1996).publishedSee Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (per curiam). 15 .
- United States v. St. Germain, No. 95-6723 (4th Cir. Feb. 5, 1996).unpublishedId.; Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979).
- United States v. Eva Marie St. Germain, A/K/A Eve Speir, 76 F.3d 376 (4th Cir. 1996).unpublishedId.; Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979). 5 St.
- Brumback v. Callas Contractors, Inc., 913 F. Supp. 929 (D. Md. 1995).publishedAs disposition of matters requiring an evaluation of credibility are generally deemed inappropriate on summary judgment, see Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979) (per cu…
- Nilson v. Historic Inns Grp. Ltd., 903 F. Supp. 905 (D. Md. 1995).publishedNonetheless, she contended that she “ ‘[n]ever ... instructed Nilson] to change or alter the clock in or clock out times in order to reduce the number of hours worked.’ ” Id. at 103. “[S]ummary judgment under Rule 56 ... may not be invoked…
- Roberts v. Cnty. Com'rs of Cecil Cnty., 46 F.3d 1126 (4th Cir. 1995).unpublishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979).
- Roger Lee Baker Edna Ila Baker v. Gregory Milnes Brent E. Curtis Steven Ceccanti, 951 F.2d 358 (9th Cir. 1991).unpublishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979); Coleman v. Smith, 828 F.2d 714, 716-17 (11th Cir.1987).
- Marvin Carson v. C.W. Kidd John Doe, 866 F.2d 1415 (4th Cir. 1989).unpublishedDavis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979).
- Kelsey v. Ewing, 652 F.2d 4 (8th Cir. 1981).published
- Yusuf Asad Madyun v. James R. Thompson, Governor, 657 F.2d 868 (7th Cir. 1981).published
- Alsansa X. Caruth v. Thaddeus E. Pinkney, Warden, David Sandahl, Assistant Warden, & William O'sullivan, Assistant Warden, 683 F.2d 1044 (7th Cir. 1982).published
- Vicel Herron v. James G. Beck, J.J. Culpepper, Sgt. Wheeler & Robert Holmes, 693 F.2d 125 (11th Cir. 1982).published
- Tyrone H. Maggette v. Stephen Dalsheim, 709 F.2d 800 (2d Cir. 1983).published
- Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., E.F. Hutton & Co., Inc., & New York Mercantile Exch., 748 F.2d 774 (2d Cir. 1984).published
- Jack Griffith v. Louie L. Wainwright, 772 F.2d 822 (11th Cir. 1985).published
- David Lee Carr v. David Alford, James Spalding, Norace Chapman, Ronald Brown, R.B. Allen O.L. Moore, Ward Robinson, Elias G. Haikal, M.D., James O. Holladay, David Lee Carr v. David Alford, Elias G. Haikal, M.D., James Spalding, Norace Chapman, Ronald Brown, R.B. Allen, O.L. Moore, Ward Robinson, James O. Holladay, 811 F.2d 1504 (4th Cir. 1987).unpublished
- Pressly v. Hutto, 816 F.2d 977 (4th Cir. 1987).published
- Michael Alan Sapp v. Preston R. Tisch, Postmaster Gen. U.S. Postal Serv., 833 F.2d 310 (4th Cir. 1987).unpublished
- Melvin C. Wilson v. Michael C. Samberg, Warden, 846 F.2d 75 (4th Cir. 1988).unpublished
- Martin Marietta Corp. v. Fireman's Fund Ins. Co., & Fuller Co. S & W Constr. Co. of Tennessee, Inc. Ins. Co. of North Am. F & P Engineers, Inc., Martin Marietta Corp. v. Fireman's Fund Ins. Co., & Fuller Co. S & W Constr. Co. of Tennessee, Inc. Ins. Co. of North Am. F & P Engineers, Inc., 852 F.2d 566 (4th Cir. 1988).unpublished
- X v. Bratten, 32 F.3d 564 (4th Cir. 1994).unpublished
- Lee A. Rand v. James Rowland Nadim Khoury, M.D. William Bunnell Roy Lee Johnson Leo R. Estes, 113 F.3d 1520 (9th Cir. 1997).published
- Lee A. Rand v. James Rowland Nadim Khoury, M.D., William Bunnell Roy Lee Johnson Leo R. Estes, 154 F.3d 952 (9th Cir. 1998).published
- William Meyers, Sr. v. Baltimore Cnty., Maryland, 713 F.3d 723 (4th Cir. 2013).published
- Brooks v. Motsenbocker Advanced Developments, Inc., 242 F. App'x 889 (4th Cir. 2007).unpublished
- Dolgaleva v. Virginia Beach City Pub. Schs., 364 F. App'x 820 (4th Cir. 2010).unpublished
- Bauman v. State, Div. of Fam. & Youth Servs., 768 P.2d 1097 (Alaska 1989).published
- Campbell v. Hanover Ins., 457 B.R. 452 (W.D.N.C. 2011).published
- Anthony Mann v. C. Failey, 578 F. App'x 267 (4th Cir. 2014).unpublished
- Perry v. Walker, 586 F. Supp. 1264 (E.D. Va. 1984).published
- Kaufman v. Toro, No. 8:20-cv-00983 (D. Md. Mar. 5, 2024).
- Buckmon v. Lasley, No. 0:19-cv-00334 (D.S.C. Aug. 14, 2020).
- Tube-Mac Indus., Inc. v. Campbell, No. 2:20-cv-00197 (E.D. Va. Oct. 5, 2021).
- Miller v. Rubenstein, No. 2:16-cv-05637, 2018 WL 736044 (S.D. W. Va. Feb. 6, 2018).
- Impact Automation, Inc. v. Haas, No. 1:23-cv-03464 (D. Md. Feb. 25, 2025).
At page 459 Verified complaint establishing prima facie case precluding summary judgment16 citing casesholding that the factual allegations contained in a verified complaint establish a prima facie case under 42 U.S.C. § 1983 , so as to preclude summary judgment
- White, No. 1:24-cv-04118 (D.S.C. Mar. 2, 2026).(holding that the factual allegations contained in a verified complaint establish a prima facie case under 42 U.S.C. § 1983 , so as to preclude summary judgment)
- Morency v. Uguru, No. 1:22-cv-00718 (D. Md. June 30, 2023).Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979).
- Sturgis v. Chief of Sec., No. 1:21-cv-01536 (D. Md. Jan. 19, 2023).Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979).
- Lewis v. Hoke Cnty., No. 1:17-cv-00987 (M.D.N.C. Feb. 1, 2022). (Doc. 104.) Plaintiff argues that, “at the very least, the court should consider that Plaintiff’s Complaint was verified under the penalty of perjury” and that “the Fourth Circuit has held that a verified Complaint is the functional equiva…
- Longstreet v. Cutshaw, No. 1:20-cv-01317 (D. Md. Feb. 17, 2021).Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979).
- Williams v. Bishop, No. 8:19-cv-01677 (D. Md. Aug. 13, 2020).Background A. Allegations in the Verified Complaint1 Plaintiff Kernell Williams arrived at North Branch Correctional Institution (“NBCI”) on September 13, 2011, as a Maximum Security Level I inmate, and was placed on a disciplinary segrega…
- Mobley v. Mallow, No. 1:18-cv-03515 (D. Md. Nov. 21, 2019).Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir. 1979).
- James Raynor v. G. Pugh, 817 F.3d 123 (4th Cir. 2016).published Dep’t of Corr., 612 F.3d 720, 723 (4th Cir.2010); Davis v. Zahradnick, 600 F.2d 458, 459-60 (4th Cir.1979); Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.1978). .
- Eddie Williams v. J.H. Griffin, Superintendent J.C. Harris, Jr., Area Adm'r Aaron J. Johnson, Sec'y of Corr., 952 F.2d 820 (4th Cir. 1991).published(holding that the factual allegations contained in a verified complaint establish a prima facie case under 42 U.S.C. § 1983 , so as to preclude summary judgment)
- Eloise Beard, as Adm'x of the Est. of Jeff Beard, Deceased v. William M. O'Neal, 728 F.2d 894 (7th Cir. 1984).published
Show 6 more citing cases
- Charles J. Slakan v. T.C. Porter, M.M. Walters, Amos Reed, Ralph Edwards, Sam Garrison, & J.B. Barefoot, J.G. Watson, D.R. Woodard, Jack Lemons, 737 F.2d 368 (4th Cir. 1984).published
- Johnson v. Ozmint, 567 F. Supp. 2d 806 (D.S.C. 2008).published
- Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C. 1984).published
- Surrell Duff v. Chris Potter, 665 F. App'x 242 (4th Cir. 2016).unpublished
- Turner v. Corr. Officer G. Porter, No. 1:22-cv-00787 (D. Md. May 15, 2023).
- Wiggins v. Wallace, No. 1:18-cv-01448 (D.S.C. Mar. 11, 2020).
At page 461 cited at this page1 citing case
- Thelma M. Krabal v. The Johns Hopkins Univ., 14 F.3d 595 (4th Cir. 1993).unpublishedThis Court held in Davis v. Zahradnick, 600 F.2d 458, 461 (4th Cir.1979), that failure to give either notice is a sufficient basis for remand.
Other citing cases
- Davis v. Lewis, 376 F. Supp. 3d 629 (E.D.N.C. 2019).published
v.
R. F. ZAHRADNICK, Appellee
In this civil rights suit under 42 U.S.C. § 1983, the district court granted summary judgment against Virginia inmate Davis. We vacate and remand the case for trial.
[I] Proceeding pro se, Davis filed a verified Complaint naming a guard and the prison warden as defendants. Davis alleged that he was assaulted by a fellow inmate, that the guard watched the knifing attack without acting to protect him, and that after the fight the guard denied him prompt and adequate medical care. Davis further alleged the warden had failed to control his subordinates and that this dereliction caused Davis’ injuries. [1]
The defendants promptly sought dismissal of the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The motion was supported by affidavits from guard Givens and a prison physician; the defendant warden did not file an affidavit. The affidavits contradicted the verified complaint and tended to exonerate the defendants. Davis subsequently filed a discursive document called an “affidavit” which realleged the matter pleaded in his complaint, but did not[*460] respond to the defendants’ affidavits. The district court granted summary judgment for defendants, finding no contested issues of facts.
We vacate the entry of summary judgment and order that the case be tried. The factual allegations of the verified complaint establish a prima facie case for relief under § 1983. Under Fed.R.Civ.P. 56 this genuine issue as to the material facts of the incident precluded summary judgment. Although summary judgment under Rule 56 is a useful device for adjudicating prisoner § 1983 claims, it may not be invoked where, as here, the affidavits present conflicting versions of the facts which require credibility determinations.
We further note that procedural error requires a remand. The defendants filed a Fed.R.Civ.P. 12(b)(6) motion supported by affidavits. The court accepted these documents and rendered summary judgment based upon them, thus converting the 12(b)(6) motion into a motion for summary judgment under Fed.R.Civ.P. 56. The conversion was effected without any explanation to Davis that the motion to dismiss would be treated as one for summary judgment. The omission of some form of notice was error, for Rule 12(b) requires:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (emphasis added).
The term “reasonable opportunity” in Rule 12(b) embraces the requirement that the court give some notice to all parties that it is treating the 12(b)(6) motion as one for summary judgment. Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir. 1976); Johnson v. RAC Corp., 491 F.2d 510, 513-14 (4th Cir. 1974); C. Wright & A. Miller, Federal Practice and Procedure § 1366 at 683 (1969). Such notice must be reasonably calculated to inform the nonmoving party of the conversion, and of his right to file countering affidavits or to undertake reasonable discovery in an effort to produce a triable issue of fact. Plante v. Shivar, supra; Johnson v. RAC Corp., supra. The lack of notice explains why Davis did not respond in fashion appropriate for one faced with a motion for summary judgment. Cf. Blanks v. Register, 493 F.2d 697 (4th Cir. 1974).
Because Davis was never told of the pending motion for summary judgment, he, of course, was not given notice as required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). This omission likewise warrants a remand. Roseboro requires that before a motion for summary judgment is granted, the pro se plaintiff must be advised of his right to file counteraffidavits or other responsive material and that he be alerted to the fact that his failure to so respond might result in the entry of summary judgment against him. 528 F.2d at 310. In addition, the Roseboro notice must be sufficiently clear to be understood by a pro se litigant and calculated to apprise him of what is required under Rule 56. Id.; Hudson v. Hardy, 134 U.S.App.D.C. 44, 47, 412 F.2d 1091, 1094 (1968).
Although these procedural errors would normally warrant a remand, we see no need for further consideration of the motion for summary judgment. As we have noted, a triable issue of fact is apparent. Accordingly, we remand for a trial on Davis’ claims.
VACATED AND REMANDED WITH INSTRUCTIONS.
. By alleging and swearing that warden Zah-radnick had neglected his duty to supervise and control the prison guards, Davis proceeded upon a proper theory of § 1983 liability, and not upon the discredited respondeat superior doctrine. The warden filed no affidavit.