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Ford v. Wildey

United States District Court, E.D. California

April 13, 2015

BENNY FORD, Plaintiff,
G. WILDEY, et al., Defendants.


STANLEY A. BOONE, Magistrate Judge.

Plaintiff Benny Ford is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983.



This action is proceeding against Defendant Wiley for excessive force and against Defendant Marshall for failure to intervene in violation of the Eighth Amendment.

On September 15, 2014, Defendants filed a motion for summary judgment. (ECF No. 63.) On October 6, 2014, Plaintiff filed several documents in response, including (1) a response to Defendants' statement of undisputed facts; (2) opposition to Defendants' motion for summary judgment; (3) declaration of Plaintiff in support of Plaintiff's briefing in opposition to Defendants' motion for summary judgment; (4) disputed facts in support of Plaintiff's opposition to Defendants' motion for summary judgment; memorandum of points and authorities in support of Plaintiff's opposition to Defendants' motion for summary judgment; and statement of undisputed material facts. (ECF Nos. 76-82.)

On October 14, 2014, Defendants filed a reply to Plaintiff's opposition to their motion for summary judgment, objections to Plaintiff's statement of disputed facts, and objections and motion to strike portions of Plaintiff's declaration and exhibits. (ECF Nos. 84-87.)

On November 3, 2014, Plaintiff filed five separate surreplies. (ECF Nos. 95-99.) Plaintiff also filed a declaration in support of his filings. (ECF No. 100.)

On November 10, 2014, Defendants filed a motion to strike Plaintiff's unauthorized pleadings (ECF Nos. 78 and 82).

On November 10, 2014, Plaintiff filed a motion for an independent expert medical specialist and a motion to strike declaration of Doctor G. Church. (ECF Nos. 102 and 103.)



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 Mutual 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, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, 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. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 (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). 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).



A. Motion to Strike Plaintiff's Filings in Opposition

Defendants move to strike Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment (ECF No. 78), and Plaintiff's Separate Statement of Undisputed Material Facts (ECF No. 82) and to deem these pleadings nullities. (ECF No. 88.) Defendants argue that Plaintiff's "Brief in Opposition to Defendants' Motion for Summary Judgment" coupled with a separate statement of undisputed facts appears to be an attempt to file a cross-motion for summary judgment which was not filed in accordance with Local Rule 260(a). (Id.)

Plaintiff filed a response to Defendants' motion and submits that he was not and is not intending to file a cross-motion for summary judgment. (ECF No. 98.) Nonetheless, Defendants continue to argue that because the nature of Plaintiff's filings is unclear, they should be stricken and deemed nullities. (ECF No. 101.)

Defendants' request to strike Plaintiff's filings shall be denied. Taking into consideration Plaintiff's pro se status, the Court does not find a basis to strike Plaintiff's filings in opposition as nullities, as Plaintiff merely submitted a brief in opposition and separate statement of undisputed facts. Plaintiff's filings are in substantial compliance with Local Rule 260, and Plaintiff's filings cannot be said to be "redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Thus, the Court declines to strike Plaintiff's opposition filings (ECF Nos. 78 & 82).

B. Motion to Strike Declaration by Doctor Church

Plaintiff moves to strike the declaration of expert witness, Doctor Church filed in support of Defendants' motion for summary judgment.

The Federal Rules of Evidence authorize the opinion testimony of an expert witness who has the requisite "knowledge, skill, experience, training or education" to form a specialized opinion. Fed.R.Evid. 702. "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." Fed.R.Evid. 703.

Plaintiff's objections to the declaration of Doctor Church must be overruled in light of the Federal Rules of Evidence. Doctor Church's opinion is properly based on his review of Plaintiff's medical records, without conducting an interview or examination of Plaintiff. Although Doctor Church's opinion, as Defendants' expert witness, is by its very nature biased in favor of Defendants, such fact does not preclude submission of such evidence. The weight to be accorded the opinion of Doctor Church is a ...

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