In Lauria v. Lieb, No. 24-1461 (3d Cir. Sept. 12, 2025), the Third Circuit, while agreeing that a party’s unsworn statement should be disregarded on a Fed. R. Civ. P. 56(a) summary judgment motion, holds that the district court erred in disregarding it for purposes of weighing Fed. R. Civ. P. 56(e).
Rule 56(c)(4) prescribes that only sworn testimony (via an affidiavit or declaration) may be considered on a summary judgment motion. Unsworn allegations cannot create an issue of material fact, as the Third Circuit confirmed in United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308 (3d Cir. 2019).
Rule 56(e), though, applies when “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c).” This subsection enumerates options that a district court may exercise, including giving the party “an opportunity to properly support or address the fact.”
Plaintiff Lauria alleged violations of his constitutional rights during pre-trial detention at Allegheny County Jail in 2021, brought under 42 U.S.C. § 1983. Plaintiff represented himself pro se after the district court twice denied appointment of counsel. The defendants moved for summary judgment on the defense of failure to exhaust administrative procedures. “In his opposition to Appellees’ motion for summary judgment, Lauria reiterated his claim that he submitted a grievance shortly after the 2021 alleged assault. Lauria alleged that he ‘put the [g]rievance in the door slot,’ after which ‘c/os were responsible for putting the [g]rievance in ‘[t]he [g]rievance [b]ox.”” But because plaintiff submitted his evidence in unsworn form, the district court held that it could “not be considered by the Court.”
The Third Circuit vacates and remands. “The District Court concluded that Doe required it to entirely disregard any unsworn statements when evaluating the parties’
summary judgment motions . . . . 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 Federal Rule of Civil Procedure 56(e) to issue appropriate orders when ‘a party fails to properly support an assertion of fact.’ Fed. R. Civ. P. 56(e). Courts possess 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.”
“Here, the District Court could not have considered Lauria’s unsworn allegations when determining whether genuine disputes remained as to any material fact. But it
remained entitled to consider Lauria’s unsworn allegations as a potential reason to delay its summary judgment ruling and grant Lauria ‘an opportunity to properly support’ his allegations or ‘issue any other appropriate order’ pursuant to
Rule 56(e).”
Finding that refusal to consider the unsworn paper was not harmless error, the panel reverses and remands.
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