United States District Court, E.D. California
ORDER DENYING MOTIONS TO STRIKE DECLARATIONS (DOCS. 90
& 92-3) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED IN PART AND CONTINUED IN PART PURSUANT TO RULE 56(D) (DOC. 65)
SHEILA K. OBERTO, Magistrate Judge.
Order and Findings and Recommendations
I. Procedural History
Plaintiff Dana McMaster ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 6, 2010. This action is proceeding on Plaintiff's second amended complaint, filed January 3, 2013, against Defendants Carlson, Garcia, Sedwick, Espitia,  and Pease for failing to protect him, in violation of the Eighth Amendment, and against Defendant Carlson for retaliation, in violation of the First Amendment. The events giving rise to Plaintiff's federal constitutional claims occurred between March 7, 2009, and April 20, 2009, at Pleasant Valley State Prison ("PVSP") in Coalinga, California.
On November 14, 2013, Defendants Carlson, Garcia, Sedwick, and Espitia ("Defendants") filed a motion for summary judgment. On June 16, 2014, following what appeared to be final resolution of the outstanding discovery disputes, Plaintiff was ordered to file an opposition or a statement of non-opposition within forty-five days. Plaintiff filed an opposition on August 7, 2014, and a motion to strike Defendant Carlson's declaration on August 11, 2014. Defendants filed a reply on August 15, 2014, accompanied by evidentiary objections and a motion to strike declarations or portions therein.
Defendants' motion for summary judgment has been submitted upon the record without oral argument, and the Court now issues the following (1) order and (2) findings and recommendations. Local Rule 230( l ).
II. Summary Judgment Standard
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
III. Evidentiary Objections
As an initial matter, the parties filed objections and motions to strike declarations. The Court rules generally as follows. See Oyarzo v. Tuolumne Fire Dist., 955 F.Supp.2d 1038, 1052 n.1 (E.D.Cal. 2013) ("It is not this Court's practice to rule on evidentiary matters individually in the context of summary judgment, unless otherwise noted."); Capital Records, LLC v. BlueBeat, Inc., 765 F.Supp.2d 1198, 1200 n.1 (C.D.Cal. 2010); Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1118-22 (E.D.Cal. 2006).
"At summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial." Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotations omitted). The focus is on the admissibility of the evidence's contents, not its form. Fonseca v. Sysco Food Servs.of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Cheeks v. General Dynamics, ___ F.Supp.2d ___, ___, 2014 WL 2048058, at *8 (D.Nev. 2014); Burch, 433 F.Supp.2d at 1122. Therefore, unless otherwise specifically addressed herein, Defendants' hearsay objections are overruled. E.g., Fonseca, 374 F.3d at 846; Burch, 433 F.Supp.2d at 1122.
Additionally, the John Doe officer who escorted inmate Smedley to Plaintiff's cell on March 18, 2009, was named as a defendant in the second amended complaint and Plaintiff subsequently identified him as S. Pease. Officer Pease subsequently waived service and filed an answer. According, Officer Pease's statements are not hearsay, as Defendants argue in their motion, but opposing party statements. Fed.R.Evid. 801(d)(2)(A).
Given the Court's duty to determine whether there exists a genuine dispute as to any material fact, an independent evidentiary objection to evidence as irrelevant is both unnecessary and unhelpful. E.g., Carden v. Chenega Sec. & Protections Servs., LLC, No. CIV 2:09-1799 WBS CMK, 2011 WL 1807384, at *3 (E.D.Cal. May 10, 2011); Arias v. McHugh, No. CIV 2:09-690 WBS GGH, 2010 WL 2511175, at *6 (E.D.Cal. Jun. 17, 2010); Tracchia v. Tilton, No. CIV S-06-2916 GEB KJM P, 2009 WL 3055222, at *3 (E.D.Cal. Sept. 21, 2009); Burch, 433 F.Supp.2d at 1119. Defendants' objections on relevancy grounds are therefore disregarded.
C. Authentication of Documents
Unauthenticated documents cannot be considered in a motion for summary judgment, Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (citing Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)) (quotation marks omitted), and therefore, lack of proper authentication can be an appropriate objection where the document's authenticity is genuinely in dispute. However, an inquiry into authenticity concerns the genuineness of an item of evidence, not its admissibility, Orr, 285 F.3d at 776, and documents may be authenticated by review of their contents if they appear to be sufficiently genuine, Las Vegas Sands, LLC, 632 F.3d at 533 (citing Orr, 285 F.3d at 778 n.24) (quotation marks omitted).
The characteristics of prison records - appearance, contents, and substance - easily support a finding that the documents have been authenticated by their distinctive characteristics and that they are what they appear to be: official prison records. Fed.R.Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 533; see also Abdullah v. CDC, No. CIV S-06-2378 MCE JFM P, 2010 WL4813572, at *3 (E.D.Cal. Nov. 19, 2010) (finding an objection for lack of foundation and authentication unavailing where the records were from the plaintiff's prison file and they were created and maintained by prison officials); Sanchez v. Penner, No. CIV S-07-0542 MCE EFB P, 2009 WL 3088331, at *5 (E.D.Cal. Sept. 22, 2009) (overruling lack of foundation and proper authentication objections to prison medical records submitted by the plaintiff); Johnson v. Roche, No. CIV S-06-1676 GEB EFB P, 2009 WL 720891, at *6 (E.D.Cal. Mar. 13, 2009) (overruling lack of foundation and proper authentication objections to prison records); Burch, 433 F.Supp.2d at 1119 (overruling objections to the introduction of documentary evidence where the defendants did not actually dispute the authenticity of them and where the plaintiff would be able to authenticate them at trial).
If Defendants genuinely disputed the authenticity of a particular prison record, they could have made a more specific objection. Notably, they did not and their bare objection to Plaintiff's use of prison records for lack of proper authentication is overruled. Fed.R.Evid. 901(b)(4); Las Vegas Sands, LLC, 632 F.3d at 533.
D. Defendants' Motion to Strike Declarations
Defendants move to strike portions of Plaintiff's declaration and attached exhibits, and the declarations of inmates Ferraiz, Kearnes, and Zuber on the ground that they are inadmissible based on failure to comply with Fed.R.Civ.P. 56(c)(4). (Doc. 92-3.) The Court declines to strike the declarations or portions therein based on Defendants' relevancy objection. Irrelevant information cannot create a triable issue of material fact, and the Court finds it unnecessary to undertake striking portions of declarations merely because they arguably lack relevancy. E.g., Burch, 433 F.Supp.2d at 1119.
Next, as discussed above, hearsay is not subject to exclusion at the summary judgment stage if it can be offered at trial in an admissible form. E.g., Greene, 648 F.3d at 1019; Fonseca, 374 F.3d at 846.
Finally, "personal knowledge and competence to testify... may be inferred from the affidavits themselves." Barthelemy v. Air Line Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (per curiam). Defendants' argument that inmate Kearnes lacks personal knowledge Plaintiff was attacked by an orientation inmate (Smedley) is merely speculative, and such an argument does not render the evidence inadmissible. Greene, 648 F.3d at 1020; see also Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013). In any event, the Court need not and does not rely on inmate Kearnes' statement that Plaintiff was attacked by an orientation inmate in determining the existence of triable issues of fact, as there is other evidence in the record regarding the attack.
Accordingly, Defendants' motion to strike is denied.
E. Plaintiff's Motion to Strike Defendant Carlson's Declaration
Plaintiff moves to strike Defendant Carlson's declaration on the ground that it contains false statements and was filed in bad faith. Fed.R.Civ.P. 56(h). (Doc. 65-9, Carlson Dec.) While Defendant Carlson incorrectly described the officer who initially responded to Plaintiff's call for help on March 18, 2009, as male, and it is undisputed that Defendant Sedwick, who is female, was the initial responding officer, there is insufficient support for a finding that the error was made intentionally and in bad faith. Furthermore, no prejudice arises from the error in light of the fact that both sides agree on the identity of the initial responding officer.
Next, the parties agree that Defendant Sedwick was the only officer in the housing unit when inmate Smedley arrived, she activated her personal alarm when Plaintiff called for help, and other officers responded to the scene less than one minute after Sedwick reached Plaintiff's cell. (Doc. 65-3, Def. Undisp. Facts 70-72.) Acceptance of those facts as true does not render as implausible Defendant Carlson's attestation that he arrived at Plaintiff's cell shortly after the alarm sounded; there is no evidence Defendant Carlson could not have arrived at the cell within a minute of hearing the alarm, along with other staff. Plaintiff's position that Defendant Carlson did not come to his cell creates a disputed issue of fact; it is not proof of a false declaration filed in bad faith. S ee Raher v. Fed. Bureau of Prisons, No. 03:09-cv-00526-ST, 2011 WL 4832574, at *7-8 (D.Or. 2011) (even affidavit testimony materially contradicted by prior deposition testimony insufficient to show bad faith); Rielly v. D.R. Horton, Inc., No. SACV 06-0867 AG (ANx), 2008 WL 4330299, at *3 (C.D.Cal. 2008) (mere inconsistencies between statements in declaration offered by moving party and the nonmoving party's evidence do not rise to level of falsehoods made in bad faith).
Finally, with respect to the other statements in Defendant Carlson's declaration, the fact that the parties disagree on facts and their declarations contradict one another is not surprising, and Plaintiff may not use his own statements under penalty of perjury as proof that Defendant Carlson's statements under penalty of perjury are false. Mere dueling declarations do not evidence bad faith, and it will be for the trier of fact to weigh evidence and assess witness credibility. George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014); Thomas, 611 F.3d at 1149.
Therefore, Plaintiff's motion to strike Defendant Carlson's declaration is denied.
IV. Eighth Amendment Claim Against Defendants Sedwick and Espitia
A. Summary of Plaintiff's Allegations
On March 7, 2009, Plaintiff, who was housed on Facility C at PVSP, was threatened by an inmate named Dan, who told Plaintiff that Officer Rocha gave him some information and if it was true, Plaintiff was a dead man. Around 6:15 p.m., Plaintiff reported the threat to ...