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Sokolsky v. Rostron

August 24, 2009

MARK SOKOLSKY, PLAINTIFF,
v.
JIM ROSTRON, ET AL., DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff, who has been civilly committed, is proceeding pro se with a civil rights action alleging that defendants violated his Fourteenth Amendment rights to due process and equal protection by using plaintiff's commitment as a mentally disordered sex offender (MDSO), which has been reversed, as a predicate for instituting proceedings under California's Sexually Violent Predators Act (SVPA). Plaintiff has filed a motion for summary judgment and a motion to amend his complaint.

I. Summary Judgment Standards Under Rule 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

On November 13, 2007, the court advised plaintiff about summary judgment procedure under Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

II. Defendant's Objections To Plaintiff's Declaration; Plaintiff's Request For Judicial Notice

Plaintiff has supported his motion for summary judgment with his own declaration and with a number of documents he contends are subject to judicial notice. Defendants have objected to paragraphs eight through twenty-two of plaintiff's declaration on the ground that these paragraphs include hearsay, information not within plaintiff's personal knowledge, matters about which plaintiff would not be a competent witness, and facts that would not be admissible in evidence. Defs.' Response and Objections (Docket No. 24) at 5-6. In turn, plaintiff attacks the declarations submitted by the defendants, claiming that they are similarly not based on the declarants' personal knowledge, contain hearsay, are unreliable and fraudulent.

Pl.'s Reply (Docket No. 28) at 7-8.

Under Rule 56(e) of the Federal Rules of Civil Procedure, a party may rely on affidavits to support or oppose summary judgment, but these affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." At the summary judgment stage, the court examines whether the substance of the evidence is admissible even if it is inadmissible in its current form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (diary attached to affidavit admissible because it was based on affiant's personal knowledge and its contents could be admitted at trial in a variety of ways). An affiant's personal knowledge and competence to testify may be inferred from the affidavit itself. Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999 (9th Cir. 1990); but see Cermetek Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (proponent must show that affiant is competent to testify about matters in the declaration).

Nevertheless, material in an affidavit may be considered on summary judgment only if it would be admissible as offered as part of the affiant's testimony. Menes v. City University of New York, 578 F.Supp.2d 598, 611 (S.D. N.Y. 2008). Hearsay is inadmissible on summary judgment to the same extent it would be at trial, as is testimony not based on the affiant's personal knowledge of the events detailed in the declaration. LaFlamboy v. Landek, 587 F.Supp.2d 914, 922 (N.D. Ill. 2008) (hearsay); DT v. Somers Central School District, 588 F.Supp.2d 485, 494 n.13 (S.D.N.Y. 2008) (personal knowledge). Finally, if documentary evidence is cited as the source of a factual ...


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