United States District Court, E.D. California
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
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.)
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
reasons set forth below, the Court will recommend that the
motion be granted in part and denied in part.
Defendant's Evidentiary Objections
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.
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
respect to Defendant's objections to the relevance of the
exhibits, the Court finds them relevant to the extent
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.
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.
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
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
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.
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).
this Court will consider the challenged statement to show
only that Plaintiff was prescribed morphine in the past, but
for no other purpose.
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 ...