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Marvin Glenn Hollis v. Phillip Sloan

October 24, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's Amended Complaint filed March 20, 2009 (Dkt. No. 13), pursuant to which plaintiff alleges that he has bipolar disorder which involves symptoms of mood swings, depression, and exhibitionism. Plaintiff alleges that defendants were deliberately indifferent to his serious mental health needs by denying him access to mental health care, and that such denial was motivated in part by retaliation against plaintiff for using the prison grievance procedure.

Presently pending are plaintiff's motions to strike defendants' evidence, to appoint a neutral expert witness, and to appoint counsel. Also pending are plaintiff's motion for partial summary judgment (Dkt. No. 93), and defendants' cross-motion for summary judgment (Dkt. No. 110). The court has suspended final briefing on these dispositive matters in order to address plaintiff's instant motions. (See Dkt. No. 118 at 2.) For the reasons that follow, the court denies plaintiff's motion to strike; denies without prejudice plaintiff's motion to appoint a neutral expert witness; and grants plaintiff's motion to appoint counsel. The deadline for plaintiff to file an opposition to defendants' cross-motion for summary judgment shall remain suspended until further order of this court.

I. Plaintiff's Motion to Strike Defendants' Evidence

Plaintiff moves to strike some of the evidence relied upon by defendants in support of their cross-motion for summary judgment. Specifically, plaintiff moves to strike the transcript of his May 18, 2012 deposition, the declarations filed by defendants, and the declaration and exhibits of defendants' expert witness, psychiatrist Dr. M. Rajappa.

On a motion for summary judgment, the moving party bears the responsibility for informing the court of the "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," which the moving party believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Evidence, regardless of form, that may later be admissible at trial, may be considered on summary judgment. Id. at 1120. This rule is because, at trial, "when a party raises valid evidentiary objections, the opposing party will have an opportunity to present the evidence in an alternative and admissible form." Id. at 1122. In general, a non-moving party's "objections to evidence . . . [as] irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself." Burch v. Regents of the University of California, 433 F. Supp. 2d 1110, 1122 (E.D. Cal. 2006). Thus, a motion to strike evidence submitted in support of, or opposition to, a motion for summary judgment, is generally viewed with disfavor. "If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits." Dawe v. Corrections USA, 2010 WL 682321, *7 (E.D. Cal. 2010), citing 5A Wright & Miller, Federal Practice and Procedure: Civil 2d §1380.

A. Plaintiff's Deposition Transcript

Plaintiff moves to strike the transcript of his May 18, 2012 deposition, and the excerpts of the transcript relied upon by defendants pursuant to the pending dispositive motions. (See Dkt. No. 111 (Lodged Transcript); Dkt. No. 112 (Exh. A) (transcript excerpts).) Plaintiff's objections are premised on the assertion, apparently correct, that defendants submitted and relied upon the transcript prior to plaintiff being accorded an opportunity to review the transcript and make corrections.

Federal Rule of Civil Procedure 30 provides that, upon request made before completion of a deposition, the deponent must be allowed thirty days after the deposition transcript is completed to review the transcript and sign a statement listing any changes.*fn1

Thereafter, the court reporter must note in the certificate prescribed by Rule 30(f)(1),*fn2 whether a review was requested and, if so, attach a copy of any changes made by the deponent.

In the instant case, it appears that, despite plaintiff's timely request to review his deposition transcript, the reporter certified the transcript on May 29, 2012, prior to according plaintiff the opportunity to conduct such review, then provided defendants with a copy of the certified transcript prior to sending a copy to plaintiff.

Plaintiff declares, under penalty of perjury, that he informed the court reporter during the course of his May 18, 2012 deposition that he wanted to review the transcript to make any necessary changes. (Dkt. No. 124 at 7.) Plaintiff states that he did not become aware that the transcript had been prepared until served with defendants' June 20, 2012 request to the court for additional time to file an opposition to plaintiff's motion for partial summary judgment, on the ground that they had "only recently received the deposition transcript." (Dkt. No. 108; Dkt. No. 123 at 4.) Plaintiff states that he was not otherwise notified about the availability of the transcript until, on July 20, 2012, defendants lodged the full transcript with the court, and filed portions of the unedited transcript in support of the pending dispositive motions, such transcript designated "certified." (Dkt. No. 124 at 4-5; Dkt. Nos. 110, 111, 112-1.) Review of the court reporter's signed certification, dated May 29, 2012, demonstrates that she left blank the form "boxes" indicating whether review of the transcript had been requested. (Dkt. No. 112-1 at 18.)

Plaintiff states that, thereafter, "[i]n a good faith effort to resolve the issue, [he] wrote defendants a letter notifying them that [he] had not been able to review the deposition transcript." (Dkt. No. 124 at 5.) Defendants' counsel states that she received plaintiff's letter on August 2, 2012, and responded by requesting the court reporting company ("Sarnoff') to send plaintiff a copy of the transcript for his review. (Dkt. No. 123-1 at 1.) On August 3, 2012, a representative of Sarnoff sent plaintiff a "condensed copy" of the deposition transcript (four reduced transcript pages on each printed page), and a letter informing plaintiff that he had thirty days to make any corrections.*fn3 (Dkt. No. 123-2 at 2.) It appears that plaintiff did not respond to the Sarnoff letter or submit any corrections; rather, on August 8, 2012, plaintiff filed and served the instant motion to strike. (Dkt. Nos. 115, 116 at 17 (certificate of service).)

Defendants' counsel states that, on September 20, 2012, having received no changes to the deposition transcript from plaintiff or Sarnoff, counsel telephoned Sarnoff and was informed that plaintiff had sent them no corrections within the belated thirty-day period. (Kim Decl. (Dkt. No. 123-1 at 2).) ...

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