Verified Pleadings Satisfy Evidentiary Standard of Rule 56, Particularly in Pro Se Cases

From Herrington v. Spruill, 2008 U.S. Dist. LEXIS 122700 (S.D. Fla. June 5, 2008):

Herrington's Response (DE# 46) and Statement of Facts (DE# 47) are not in affidavit form, and are not themselves sworn under penalty of perjury. Relevant facts stated in Herrington's Response, however, are also stated by him in his sworn Amendment to the complaint (DE# 22). As such, in a case like this, where plaintiff is proceeding pro se and is unschooled in the law, the sworn Amendment [DE# 22] should be deemed to suffice as an affidavit in this summary judgment proceeding, because it contains fact statements by Herrington which are based on personal knowledge, thereby satisfying requirements of Fed.R.Civ.P. Rule 56(e).

Footnote 4. See Gordon v. Watson, 622 F.2d 120, 123 (5 Cir. 1980) (pro se "Answer to Defendants' Motion For Summary Judgment," which was an unsworn statement, failed to comply with Rule 56; but had it been sworn it would have raised a genuine issue as to material fact); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5 Cir. 1965) (verified pleadings may be treated as affidavits in summary judgment proceedings, if they meet the standards for affidavits laid down by Fed.R.Civ.P. 56(e), and set forth facts based on personal knowledge, and do not simply state legal conclusions). Accord Sheinkopf v. Stone, 927 F.2d 1259, 1262-63 (1 Cir. 1991) (citing cases, including Fowler, 343 F.2d at 154) (sworn pleading, satisfying requirements of Rule 56(e), is treated as equivalent to a supporting or opposing affidavit).

The Sheinkopf Court, as a matter of first impression in that Circuit, addressed the question whether or when a verified complaint can serve in lieu of an affidavit for purposes of opposing a summary judgment motion. The Court acknowledged that cases where a verified pleading will suffice are "rare," Sheinkopf 927 F.2d 1262 (citing 6-Pt. 2, J.W. Moore & J.C. Wicker, Moore's Federal Practice ¶56.22.[1] at 56-741); but held that "[w]e think the better rule is that a verified complaint ought to be treated as the functional equivalent of an affidavit to the extent that it satisfies the standards explicated in Rule 56(e)(in summary judgment milieu, affidavits 'shall be made on personal knowledge, shall set for such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein')." Id., 927 F.2d at 1262 (quoting Fed.R.Civ.P. 56(e)).

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