938 F. Supp. 708 | D. Kan. | 1996
MEMORANDUM AND ORDER
I. Introduction
This case comes before the court on the defendant’s motion to dismiss the plaintiffs claim pursuant to Fed.R.Civ.Pro. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.CivJPro. 56. Under the Federal Tort Claims Act (FTCA) the plaintiff claims loss of personal property due to the defendant’s negligence in the course of his transfer from United States Penitentiary (USP), Leavenworth, Kansas to USP, Florence, Colorado. For the reasons discussed below, the court grants the defendant’s motion for summary judgment because the plaintiff waived his right of action regarding
II. Facts
The following facts are uncontroverted. On September 21, 1994, the plaintiffs property was inventoried for his transfer to USP, Florence. The plaintiff reviewed and signed the three property forms without indicating any discrepancies in the inventory of his property, thus verifying the form’s accuracy. On October 17, 1994, the plaintiffs property was inventoried by the staff at USP, Florence, and recorded onto three property forms. Again the plaintiff reviewed and signed the property form’s without-indicating any discrepancies in the inventory of his property, thus verifying the form’s accuracy.
III. Discussion
A Standard for Summary Judgment
Because the defendant has included declarations to support specified facts, the court will treat this motion as a motion for summary judgment. Fed.R.Civ.Pro. 12(b); Hall v. Bellmon, 935 F.2d 1106, 1110-11 (10th Cir.1991). When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir.1995). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.Pro. 56(c); Anglemyer v. Hamilton County Hospital, 58 F.3d 533 (10th Cir.1995). If the moving party does not bear the burden of proof at trial, it must show “that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).
Once the movant meets these requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The non-movant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that “can be resolved in favor of either party.” Id. at 250, 106 S.Ct. at 2511. More than a “disfavored procedural shortcut,” summary judgment is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’ Fed.R.Civ.Pro. 1.” Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.
B. Analysis
The uneontroverted facts demonstrate that the plaintiff failed to indicate any lost property when he reviewed and signed the property forms.
IT IS THEREFORE ORDERED BY THE COURT that the defendant’s motion for summary judgment (Doc. # 12) is granted.
IT IS SO ORDERED.
. In his response, the plaintiff argues that the defendant has misconstrued the nature of the property forms. The plaintiff argues that the property forms include property left in the plaintiff's cell, and that the property forms do not include the plaintiff's property delivered to him at USP, Florence. However, the plaintiffs argument misses the mark. The plaintiff waived his claim by reviewing and signing the property forms without indicating any lost property and he cannot now contend to the contrary.