Unsworn Statements Cannot Create Fact Disputes, But May Prompt Rule 56(e) Cure Orders: The Third Circuit’s Precedential Clarification in Lauria v. Lieb

Introduction

In a precedential opinion, the U.S. Court of Appeals for the Third Circuit vacated a grant of summary judgment against a pro se incarcerated plaintiff, clarifying an important procedural rule at the intersection of summary judgment practice and pro se prisoner litigation. In Christian James Lauria v. Lieb, the panel held that while unsworn statements cannot themselves create a genuine dispute of material fact under United States ex rel. Doe v. Heart Solution, PC (3d Cir. 2019), district courts may nonetheless consider such unsworn submissions for the limited purpose of deciding whether to grant curative relief under Federal Rule of Civil Procedure 56(e)—for example, by allowing time to submit a compliant affidavit or declaration under penalty of perjury. The court concluded the district court erroneously treated Doe as foreclosing any consideration of unsworn allegations at the summary judgment stage and remanded for further proceedings.

The case arises from a pretrial detainee’s excessive force and deliberate indifference claims against corrections officers and the Allegheny County Jail. The defendants sought summary judgment on Prison Litigation Reform Act (PLRA) exhaustion grounds, relying on a declaration that jail records contained no grievance by the plaintiff. Although the plaintiff repeatedly alleged he had filed a grievance by placing it in his cell door slot, his filings were not sworn or made under penalty of perjury. The district court read Doe to mean it could not consider these allegations at all and entered judgment for the defendants. The Third Circuit vacated, holding that Rule 56(e) preserves discretion to allow parties—especially pro se prisoners—to cure such defects.

Summary of the Opinion

The Third Circuit (Judge Restrepo writing, joined by Judges Montgomery-Reeves and Scirica) reaffirmed the core rule of Doe: unsworn statements not made under penalty of perjury cannot, by themselves, create a genuine dispute of material fact on summary judgment. But the panel clarified that Doe does not bar courts from considering unsworn statements for the distinct, procedural purpose of deciding whether to exercise discretion under Rule 56(e) to:

• Give a party an opportunity to properly support or address a fact;
• Consider the fact undisputed for purposes of the motion;
• Grant summary judgment if appropriate; or
• Issue any other appropriate order.

Because the district court believed Doe prevented any consideration of the plaintiff’s unsworn allegations for any purpose, it failed to consider whether to give him a chance to cure via a sworn affidavit or declaration. That was error. The court emphasized the pro se status of the plaintiff and the absence of any contemporaneous objection by the defendants to the unsworn nature of the allegations as relevant to the Rule 56(e) inquiry.

The panel also rejected the defendants’ harmless-error argument that the plaintiff’s failure to produce a “pink copy” of his grievance would have made any Rule 56(e) cure futile. A single, non-conclusory sworn statement based on personal knowledge can defeat summary judgment, and the plaintiff could have supplied such a sworn statement to counter the jail’s database search—pink copy or no. The court therefore vacated and remanded.

Finally, the Third Circuit noted but did not decide whether district courts must provide special, plain-language notice to incarcerated pro se litigants facing summary judgment—a requirement many circuits impose. Because the panel resolved the appeal by correcting the district court’s misapplication of Doe, it left that broader question for another day.

Analysis

Precedents and Authorities Cited

• United States ex rel. Doe v. Heart Solution, PC, 923 F.3d 308 (3d Cir. 2019): The foundational Third Circuit precedent holding that unsworn statements not made under penalty of perjury are insufficient to create a genuine dispute of material fact at summary judgment. Lauria reaffirms this core holding but clarifies its scope: Doe does not prohibit courts from considering unsworn statements for purposes of issuing Rule 56(e) cure orders.
• Fed. R. Civ. P. 56(a), 56(e): Rule 56(a) sets the summary judgment standard. Rule 56(e) gives courts options when a party fails to properly support or address a fact—including allowing time to cure defects or issuing appropriate orders. Lauria emphasizes that Rule 56(e) discretion remains available even when a nonmovant’s initial submissions are unsworn.
• Supplementing defective summary judgment materials:
  • Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980): District courts have “ample discretion” to call for supplemental affidavits or otherwise remedy defects in summary judgment materials.
  • Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 116 n.4 (2d Cir. 2017): Recognizes a court’s leeway to allow corrective submissions.
  • Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985): Similar discretionary authority to accept or request supplemental materials.
• Summary judgment fundamentals:
  • Huber v. Simon’s Agency, Inc., 84 F.4th 132, 144 (3d Cir. 2023): Standard of review—de novo, applying the same standard as the district court.
  • Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004): No credibility determinations or weighing of evidence at summary judgment.
  • Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 320 (3d Cir. 2014): A single, non-conclusory affidavit based on personal knowledge can suffice to defeat summary judgment.
  • Paladino v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018): Sworn deposition testimony can establish exhaustion; underscores that plaintiff’s sworn account may be enough to avoid summary judgment.
• Pro se summary judgment notice—circuit split (not decided):
  • Circuits recognizing a notice requirement for pro se incarcerated litigants: Second, Fourth, Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits (e.g., Irby; Roseboro; Ninety Three Firearms; Lewis; Rand (en banc); Brown; Hudson).
  • Circuits rejecting such a rule: Fifth and Eighth (e.g., Martin; Beck).

The Court’s Legal Reasoning

The panel carefully disentangles two distinct ideas that are often conflated in summary judgment practice:

1. Evidentiary sufficiency on the merits of the motion: Under Doe, unsworn statements not under penalty of perjury cannot create a genuine dispute of material fact. This is an evidentiary limitation directed at what counts as “record” evidence under Rule 56.
2. Procedural discretion to cure defects: Rule 56(e) separately authorizes courts to address defective submissions by, among other things, giving the nonmovant an opportunity to properly support an assertion of fact (for example, by submitting an affidavit or a declaration compliant with 28 U.S.C. § 1746), or by issuing any other appropriate order. In deciding whether to exercise this discretion, a court may take account of a party’s unsworn allegations as signals that a potentially curable record gap exists—even though those unsworn allegations cannot themselves carry the evidentiary burden.

The district court’s error was to expand Doe beyond its evidentiary holding and treat it as a categorical bar to considering unsworn assertions for any purpose at summary judgment. The Third Circuit makes clear that Doe governs what may be relied upon to deny summary judgment, but it does not strip district courts of their Rule 56(e) toolbox for managing defective filings, particularly where a pro se litigant’s misstep appears rooted in a misunderstanding of technical rules and the opposing party did not object at the time.

Turning to harmlessness, the panel rejects the argument that the absence of a “pink copy” inevitably defeats the plaintiff’s exhaustion showing. The correct Rule 56 inquiry is not whether the nonmovant produced a particular preferred document, but whether, viewing the evidence in the nonmovant’s favor, there is a genuine dispute of material fact. A single sworn statement, if non-conclusory and based on personal knowledge, can suffice—even without a corroborating paper trail—to create a triable issue on PLRA exhaustion. Because the plaintiff could have submitted such a sworn statement had the district court exercised its Rule 56(e) discretion, the error was not harmless.

Impact and Practical Implications

Lauria is a consequential procedural decision for summary judgment practice in the Third Circuit, especially in pro se prisoner litigation:

• For district courts:
  • Doe remains intact: unsworn statements cannot create fact disputes.
  • But courts retain—and should consciously consider—Rule 56(e) options when a nonmovant’s submissions are defective. That includes granting a brief period to file a § 1746-compliant declaration, accepting a verified amended complaint, or issuing other appropriate orders tailored to the defect.
  • Pro se status, the nature of the defect, and the absence of prejudice or contemporaneous objection may all weigh in favor of offering a curative opportunity.
  • When exhaustion is at issue, if disputes remain after curing, courts may proceed under established Third Circuit procedures to resolve exhaustion as a threshold matter or allow a jury to consider merits as appropriate, mindful not to weigh credibility at the summary-judgment stage.
• For pro se litigants:
  • Allegations must be sworn (via a verified complaint or a § 1746 declaration/affidavit) to count as evidence at summary judgment.
  • Even if a litigant mistakenly files unsworn materials, the court may allow a cure. Litigants should promptly move to submit a sworn declaration if alerted to the defect.
  • Keep contemporaneous records where possible (e.g., grievance receipts), but understand that a detailed sworn statement based on personal knowledge can, by itself, defeat summary judgment.
• For defense counsel:
  • Reliance on database searches (e.g., “no grievance found”) can be countered by a plaintiff’s sworn narrative; absence of a “pink copy” is not dispositive at summary judgment.
  • Consider whether to object contemporaneously to unsworn filings or to invite the court to use Rule 56(e) to create a clean record; a win based solely on a curable defect risks reversal and remand.
• Open question preserved:
  • The Third Circuit flagged but did not resolve whether district courts must provide plain-language “summary judgment notice” to pro se incarcerated litigants. Many circuits require it; the Fifth and Eighth do not. Future Third Circuit cases may address this directly.

Complex Concepts Simplified

• Unsworn vs. sworn statements:
  • At summary judgment, facts must be supported by evidence admissible at trial or reducible to admissible form—commonly affidavits or declarations “under penalty of perjury” in compliance with 28 U.S.C. § 1746.
  • Unsworn statements (e.g., letters, unsworn complaints, briefs) do not count as evidence and cannot create genuine disputes of material fact.
  • A “verified complaint” or a § 1746 declaration that recites facts based on personal knowledge is treated like an affidavit.
• Rule 56(e) cure orders:
  • When a party fails to properly support or address a fact, Rule 56(e) authorizes the court to: (1) give an opportunity to cure; (2) deem the fact undisputed; (3) grant summary judgment; or (4) issue any other appropriate order.
  • Courts may consider the totality of submissions—including unsworn allegations—to decide whether to offer a curative opportunity. This does not convert unsworn statements into evidence; it simply triggers a procedural remedy.
• PLRA exhaustion:
  • Incarcerated plaintiffs must exhaust “available” administrative remedies before filing suit.
  • At summary judgment, a plaintiff’s sworn testimony that he submitted a grievance can create a genuine dispute even if prison records do not reflect it. The absence of a retained “pink copy” is not automatically fatal.
  • Courts must avoid weighing credibility when deciding if a genuine dispute exists.
• Harmless error:
  • An error is harmless if it could not have affected the outcome. Here, because a sworn statement could have defeated summary judgment, the district court’s failure to consider a Rule 56(e) cure was not harmless.

Conclusion

Lauria v. Lieb sharpens Third Circuit summary judgment practice by drawing a principled line: unsworn statements cannot create genuine disputes of material fact (Doe remains the law), but district courts may look to such statements to decide whether a Rule 56(e) cure is warranted. This nuanced clarification preserves both the integrity of Rule 56’s evidentiary demands and the flexibility judges need to manage cases—particularly those involving pro se prisoners who may be unfamiliar with formal affidavit requirements.

The immediate effect is a remand to consider whether, in light of the plaintiff’s unsworn allegations and pro se status, the district court should allow a sworn submission and then reassess exhaustion. More broadly, Lauria encourages district courts to use Rule 56(e) affirmatively to cure technical defects rather than to treat them as categorical bars—reducing the risk of avoidable reversals, fostering fair adjudication on the merits, and promoting a clear, well-developed record for appellate review. The panel leaves open whether the Third Circuit will adopt a formal notice requirement for pro se incarcerated litigants at summary judgment, signaling an important doctrinal question for future cases.