How Do You Spell ‘Give Me A Brak’? – Update for September 16, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

3rd CIRCUIT HELPS OUT LITIGANT WITH THE ‘LEGAL JARGIN’

Chris Lauria, detained in the Allegheny (Pennsylvania) County Jail, sued some corrections officers for excessive force and deliberate indifference. Chris proceeded pro se, and he wasn’t very good at it. At one point, he asked the court to appoint an attorney to represent him because he did not “speak Legal Jargin.”

Chris, like many pro se litigants, struggled in opposing an F.R.Civ.P. 56 motion for summary judgment that the COs had filed, which argued that the case should be thrown out because Chris had not exhausted administrative remedies by going through the jail grievance system first. The COs filed an affidavit from the jail warden that no grievance from Chris had ever been scanned into the system. Chris wrote back that he had been in the Special Housing Unit and had slipped his grievance under the door for pickup, the usual procedure for people in the SHU and only way he had to file.

In granting summary judgment, the District Court relied in large part on a 3d Circuit holding in United States ex rel. Doe v. Heart Solutions, PC, a 2019 case that held that an unsworn statement not made under penalty of perjury cannot be considered in deciding a Rule 56 summary judgment motion. The District Court concluded that Doe meant it “cannot consider the unsworn statements related to exhaustion as part of its summary judgment analysis.”

But Rule 56 has an escape hatch: Rule 56(e) permits a court to issue appropriate orders when “a party fails to properly support an assertion of fact.” Courts have the discretion to allow litigants to address errors in their summary judgment materials, including by allowing additional time for the resubmission of unsworn allegations in supplemental affidavits.

Last week, the 3d Circuit reversed the District Court and reinstated Chris’s lawsuit. It held that the District Court had expanded the scope of the Doe holding “in a small yet significant way. In Doe, we held that statements that are both unsworn and not given under the penalty of perjury are ‘insufficient to create an issue of fact on summary judgment’… But our holding in Doe does not compel courts to completely disregard unsworn statements when assessing the propriety of summary judgment: such statements may inform a court’s decision pursuant to [Rule] 56(e) to issue appropriate orders when “a party fails to properly support an assertion of fact.”

District courts have “ample discretion to call upon the parties to remedy the defects [in summary  judgment materials], by submitting supplemental affidavits or otherwise,” the Circuit said, and “[i]n determining whether to exercise this discretion, courts are permitted to consider the totality of the allegations made, both sworn and unsworn.”

The 3d didn’t tell the District Court whether to give Chris a chance to resubmit his statements under penalty of perjury, but underneath the “legal jargin,” the implication that the Circuit thought the District Court should consider that the failure to do so “appeared to be the product of a pro se litigant’s ignorance of procedural rules — and had not been objected to by Appellees in their summary judgment briefing,” Chris should get a procedural break.

Lauria v. Lieb, Case No. 24-1461, 2025 U.S. App. LEXIS 23622 (3d Cir. September 12, 2025)

United States ex rel. Doe v. Heart Solutions, PC, 923 F.3d 308 (3d Cir. 2019)

~ Thomas L. Root