The District Court, we conclude, rightfully granted summary judgment as moved by defendant police officers, Bass and Hayes, in this civil rights action of plaintiff administrator against them for damages for the fatal shooting of his intestate, Alex Atkinson, in Wilson, North Carolina. 42 U.S.C. § 1983.
Deceased was shot as he aimed a loaded firearm at the officers, resisting their execution upon him of a search and arrest warrant. Defendants pleaded self-defense in vindication of their act. Affidavits served with the motion and uncontroverted in any respect, conclusively established that there was no. genuine issue in the case and that the homicide was justifiable. Judgment went for the defendants November 22, 1976. The only question on this appeal, therefore, is the regularity of the procedure leading to the judgment.
Plaintiff attacks the judgment on the assertion that he was not given a hearing on the motions for summary judgment. In this he notes that contemporaneously with the filing and service of them, defendants also served notice on plaintiff’s attorney that they would “bring . . . [the motions] on for hearing before a Judge of the United States District Court for the Eastern District* of North Carolina at a time and place to be .set by the Court for its conve*866nience”. The findings and order of the Court, upholding the motions and dismissing the complaint, also recite that the mov-ants thereafter “represented to the court their willingness to have the matter decided without oral argument”. Plaintiff, although never himself having requested a hearing on the motions now assigns invalidity to the judgment, in that, for want of notice to him of the waiver and submission he was deprived of the opportunity for a hearing. We cannot agree.
To the complaint filed on August 24, 1976, defendant-appellees timely responded on September 13, by the filing and service of a motion for summary judgment, accompanied by comprehensive and precise affidavits and memoranda. Thereupon, positive action was demanded of plaintiff. F.R. Civ.P. 56(e) explicitly admonishes that he could not then simply “rest” on his complaint — that he “must” affirmatively respond. Notwithstanding, he did absolutely nothing then or thereafter at any time. This negative determination of plaintiff subjected him to the discipline of the Rule: “If he [plaintiff] does not so respond, summary judgment, if appropriate, shall be entered against him [plaintiff].” (Accent added.) Atlantic States Const. Co. v. Robert E. Lee & Co., Inc., 406 F.2d 827, 829 (4 Cir. 1969); Berry v. Atlantic Coast Line Railroad Company, 273 F.2d 572, 582 (4 Cir. 1960). Accordingly, judgment for the defendants rightly followed.
On appeal, plaintiff relies chiefly on Rule 56(c) stipulating that “prior to the hearing [he] may serve opposing affidavits”. His argument is that by the omission of the hearing he lost the opportunity of presenting his defense to the motion. But this conclusion is denied by the Rule and the facts. Even' if this Rule 56(c) is read as squaring with the requirement of Rule 56(e) for a response, plaintiff was still in default under both Rules.
The reason is that, as he concedes in his brief, he had no affidavits and no assurance of obtaining them. Affidavits were essential in his proof, he states, because the only use he “could make of the witnesses would be to take their affidavits — if they would give them. If they would not give an affidavit, then the only other use that could be made of such witnesses would be at a hearing.” (Accent added.)
Incidentally, despite his insistence that he was prejudiced because denied a chance to present affidavits, he has not at any stage of this litigation disclosed what the affidavits would have averred. Furthermore, no proffer has ever been made of the testimony he expected from the witnesses, if they did not agree to give affidavits but had to be subpoenaed to testify at the trial. Consequently, we are considering an unreal or speculative grievance.
If he had been willing to follow the Rules, his problem with the affidavits would have been solved by Rule 56(f):
“(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
However, plaintiff made no effort to make his difficulty “appear” to the Court. Of course, the “affidavits” required by this Rule are not those of Rule 56(c) on which plaintiff depended to prove his case; they are only explanatory of his failure to file the evidential affidavits mentioned in 56(c). Obviously, compliance with Rule 56(f) would have removed the predicament plaintiff faced.
As already noted, plaintiff further maintains that the denial of a hearing also prevented him from establishing his rebuttal through witnesses called to testify, This argument is refuted by his disregard of the requirement of Rule 56(e), as expounded earlier, necessitating a “response” to the motion.
A hearing was available to :plajntiff for the asking. The District Court’s local Rule 4(H) states: ■ -
*867“(H) Hearing on Motion. Motions will be considered and decided without a hearing, unless otherwise ordered by the Court, or unless requested by counsel for either movant or respondent. Uncontested motions will not be denied without giving the movant an opportunity to be heard.” (Accent added.)
A like rule of the United States District Court for Maryland was upheld as Constitutional by us in United States Fidelity & Guaranty Co. v. Lawrenson, 334 F.2d 464, 466 (4 Cir. 1964) cert. den. 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71 (1964).
Truth is that plaintiff’s failure to obtain a hearing was because throughout he had flouted the Rules. By not so much as a hint did he ever indicate to the District Court any interest at all in contesting the motion for summary judgment. More than two months elapsed between the service of the motion and the dismissal, without “response” or appearance of any sort from plaintiff in regard thereto. If plaintiff’s position be upheld, it would mean that he could indefinitely continue to do nothing, and so without end stagnate the judicial process, although he was the claimant. Surely neither the trial court nor the opposing parties should be subjected to such dilatory procedure.
Affirmed.