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Salazar v. Kokor

United States District Court, E.D. California

July 12, 2017

EFRAIN SALAZAR, Plaintiff,
v.
WINFRED KOKOR, Defendant.

          FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 32) FOURTEEN (14) DAY OBJECTION DEADLINE

          Michael J. Seng, UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Dr. Winfred Kokor on Plaintiff's Eighth Amendment medical indifference claim. (ECF No. 19.)

         Before the Court is Defendant's October 20, 2016 motion for summary judgment. (ECF No. 32.) Plaintiff filed an opposition. (ECF No. 38.) Defendant filed a reply (ECF No. 39) and objections to parts of Plaintiff's evidence (ECF No. 40). The matter is deemed submitted pursuant to Local Rule 230(l).

         For the reasons set forth below, the Court will recommend that the motion be granted in part and denied in part.

         II. Defendant's Evidentiary Objections

         Defendant objects to several statements in Plaintiff's declaration and to all of the exhibits attached to the declaration, namely Exhibit A, Plaintiff's administrative and health care appeal records, and Exhibits B through F, Plaintiff's medical records.

         To the extent Defendant objects to Plaintiff's exhibits on grounds of authentication and foundation, the objections are unpersuasive. Defendant himself includes many of the same medical records in support of his motion. Nothing about the documents Plaintiff submits calls their authenticity into question. Moreover, Plaintiff may authenticate such documents at trial and need not do so at this stage. See Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006) (“[Rule 56] requires only that evidence ‘would be admissible, ' not that it presently be admissible. Such an exception to the authentication requirement is particularly warranted in cases such as this where the objecting party does not contest the authenticity of the evidence submitted but nevertheless makes an evidentiary objection based on purely procedural grounds.”)

         With respect to Defendant's objections to the relevance of the exhibits, the Court finds them relevant to the extent discussed below.

         Defendant also objects that the exhibits contain inadmissible expert medical and legal opinions. Defendant does not elaborate on this objection or specify which portions of the records he finds objectionable. The Court will not, in any event, rely on any expert opinions reflected in Plaintiff's medical records in reaching its conclusion.

         Most of the statements in Plaintiff's declaration to which Defendant objects consist of Plaintiff's characterization of or opinions about medical treatment rendered by Defendant. The Court will not rely on any such characterizations or opinions in reaching its conclusions here. Accordingly, with one exception discussed below, the Court need not and will not address these objections for the purposes of this motion.

         Defendant makes numerous objections to the following statement by Plaintiff: “In response to paragraph 11, plaintiff alleges that morphine was clinically indicated for post-polio pain syndrome by M.D. Nina Willis, UC Davis Appeals Coordinator Pain Management Specialist. See Exhibit.” (ECF No. 40 at 2.) Defendant contends that this statement is not relevant, contains inadmissible medical and legal opinion, and that statements made by Dr. Willis constitute inadmissible hearsay.

         Only evidence that would be admissible may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed.R.Civ.P. 56(c). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff's diary on summary judgment because, at trial, plaintiff's testimony of contents would not be hearsay). However, a court may not consider inadmissible hearsay evidence which could not be presented in an admissible form at trial. See Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1122 (C.D. Cal. 2007) (“Medina bases much of her declaration on hearsay evidence that will not be admissible at trial. Medina will not, for example, be able to take the witness stand at trial and recount statements that constitute hearsay, double hearsay, or triple hearsay.”).

         Plaintiff is not competent to testify regarding which medications are medically appropriate to treat his condition. See Fed.R.Evid. 701, 702. To the extent Plaintiff offers his own opinion regarding appropriate medications, it will not be considered here. Id.; see also Calloway v. Contra Costa County Jail Correctional Officers, No. C 01-2689 SBA, 2007 WL 134581, at *19 (N.D. Cal. Jan. 16, 2007) (sustaining defendants' objection to plaintiff's declaration testimony when considering a motion for summary judgment, where plaintiff stated a medical conclusion regarding the condition of a bone in his arm). Plaintiff may testify regarding matters over which he has personal knowledge, Fed.R.Evid. 602, such as the fact that he previously was prescribed morphine. However, he may not testify regarding what he was told about this medication, because such testimony, when offered for the truth of the matter asserted, constitutes inadmissible hearsay. Fed.R.Evid. 801(c), 802; see also McCoy v. Spidle, No. CV-07-198-SMM, 2011 WL 1486560, at *4 (E.D. Cal. Apr. 19, 2011) (“Witnesses generally cannot testify about out-of-court statements introduced for the truth of the matter asserted . . . .”). Thus, Plaintiff may not testify that he was told by Dr. Willis that he was being given morphine for purposes of treating his post-polio pain since the only relevance of such a statement would be to suggest that the medical expert deemed morphine an appropriate treatment for such a condition. Plaintiff presents nothing to suggest that such testimony could be presented in admissible form at trial. The Court has before it no declaration from Dr. Willis, nor any medical records to suggest that Plaintiff previously was prescribed morphine for the pain at issue in this action.

         Plaintiff has made no showing that this fact could be presented in admissible form at trial, and thus, that his testimony should be considered for purposes of summary judgment. Cf. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004) (concluding that hearsay evidence could be presented in admissible form at trial); Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (same). His testimony is therefore inadequate under Federal Rule of Civil Procedure 56. See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (holding that an affidavit which contained hearsay statements that were not based on personal knowledge and failed to set forth facts that would be admissible in evidence did not meet the requirements of Rule 56).

         Thus, this Court will consider the challenged statement to show only that Plaintiff was prescribed morphine in the past, but for no other purpose.

         III. Legal Standard

         Any party may move for summary judgment, and a 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); Washington Mut. Inc. v. United States, 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 ...


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