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striking affidavit and reports of witnesses as hearsay where witness would be unavailable at trial
Summary of this case from Schwendimann v. Arkwright Advanced Coating, Inc.Opinion
No. CV-04-1861-PCT-DGC.
August 23, 2006
ORDER
Defendants Yavapai County Board of Supervisors and Yavapai County Sheriff have filed a motion to strike expert witness, a motion for summary judgment, and a motion to strike expert affidavit and reports. Docs. ##65, 70, 80. Plaintiff has filed a cross-motion for summary judgment. Doc. #72. For the reasons set forth below, the Court will grant Defendants' motion to strike expert witness in part, grant Defendants' motion to strike expert affidavit and reports, grant Defendants' motion for summary judgment, and deny Plaintiff's cross-motion for summary judgment.
I. Background.
In 1997, the United States Department of Justice ("DOJ") began an investigation into conditions at the Yavapai County jails to determine whether inmates' constitutional rights were being violated. Doc. #71 at 5. In September 1998, the DOJ issued findings and recommendations in which it concluded that the jails had failed to provide adequate protection from inmate-on-inmate violence. Id. at 9. The DOJ stated that the cause of the violence was overcrowding, understaffing, inadequate surveillance, and inadequate inmate identification and classification systems. Id. The Yavapai County Sheriff's Office, Board of Supervisors, and County Attorney worked with the DOJ to remedy these problems, implementing a number of programs intended to alleviate overcrowding and reduce the potential for violence in the jails. Doc. #70 at 5. The County ultimately opened a new jail and began moving inmates there in November 2003. Doc. #71 at 25. The DOJ closed its investigation in October 2004. Id. at 30.
Plaintiff was a pretrial inmate at Yavapai County Jail from August 2003 to October 25, 2003. Doc. #71 at 1. Plaintiff claims that on October 10, 2003, a detention officer left the door of a "locked down" cell open, which allowed a few of the segregated inmates in the cell to exit. Doc. #72 at 3. Plaintiff asserts that one of the inmates who left the cell, Danial Johnson, entered a common area and assaulted Plaintiff. Id. Plaintiff sustained a broken jaw and laceration. Id. Plaintiff was taken to the hospital and his jaw was wired shut for two months. Id.
Plaintiff brings a claim for damages under 42 U.S.C. § 1983, alleging that his constitutional rights were violated because his assault was caused by the policy or custom of Defendants to overcrowd prisons while ignoring the corresponding risks to prisoner safety. Doc. #1 ¶¶ 9-26. Plaintiff also asserts state law negligence and assault and battery claims. Id. ¶¶ 27-31.
Defendants argue that the Board of Supervisors is not a proper defendant because it lacks authority to make policy concerning jails, that the named Sheriff should be dismissed as a defendant because he has been succeeded, that punitive damages are not permitted against municipal defendants, and that all Doe Defendants must be dismissed. Doc. #70 at 9-10, 14. Defendants move for summary judgment on the § 1983 claim on the ground that improvements undertaken as a result of the DOJ investigation preclude a finding of "deliberate indifference" on their part. Id. at 12. Defendants move for summary judgment on the state law claims on the grounds that their conduct did not constitute "gross negligence" and there is no evidence of any assault and battery by a county official or employee. Id. at 14. Defendants also move to strike expert witness George Sullivan and the reports and affidavit he has submitted. Docs. ##65, 78. Plaintiff moves for summary judgment on the ground that all evidence supports his claim and that no reasonable jury could find for Defendants. Doc. #72 at 10.
II. Is the Yavapai County Board of Supervisors a Proper Defendant?
The parties agree that a county is considered a person under § 1983 and is therefore subject to suit. A county, however, "cannot be found liable under § 1983 on a respondeat superior theory; liability may be imposed only if the plaintiff establishes that his injuries were inflicted pursuant to an official county policy or custom." Thompson v. City of L.A., 885 F.2d 1439, 1443 (9th Cir. 1989) (citations omitted). A plaintiff must first establish that the county has "final policymaking authority," which is a question of state law to be resolved by the Court before submitting the case to the jury. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). The Court must look to "state and local positive law, as well as custom or usage having the force of law[, in order to] identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue." Id. (internal quotes and citation omitted).
Defendants cite A.R.S. § 31-101 for the proposition that the Sheriff is the sole "final policymaker" with respect to jail activities. Section 31-101 provides that "[t]he common jails in the several counties and county jails under the jurisdiction of county jail districts shall be kept by the sheriffs of the counties in which they are respectively located."
Plaintiff argues that Flanders v. Maricopa County, 54 P.3d 837 (Ariz.Ct.App. 2002), is controlling and that the County and the Sheriff are both designated policymakers. In Flanders, the Arizona Court of Appeals held that a county is responsible as a matter of law for constitutional violations committed by a sheriff in his official capacity because his status "cloaks him with the governmental body's authority." Id. at 847. The Court also stated that "[t]here can be no `clearer case of county liability' than for the policies of a sheriff charged by law with responsibility for a county's jails." Id. (quoting Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985)).
Under Arizona law as interpreted in Flanders, a county is responsible for its sheriff's jail policies. The County in this case is therefore a proper defendant.
III. Should Sheriff G.C. "Buck" Buchanan Be Dismissed?
Defendants' argue that Mr. Buchanan should be dismissed because he is no longer the Sheriff of Yavapai County. Doc. #70 at 10. Plaintiff does not address this argument in his response. See Doc. #72.
Federal Rule of Civil Procedure 25(d)(1) provides that "[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party." Mr. Buchanan is sued in this case only in his official capacity. Doc. #71 ¶ 22, Pl.'s Dep. at 42-43. The Court therefore will dismiss Mr. Buchanan as a named defendant. Under Rule 25(d)(1), however, his successor is automatically substituted in his place. The rulings in this order will therefore apply to the current Sheriff of Yavapai County.
IV. Should the Doe Defendants be Dismissed?
Defendants request that the Doe Defendants be dismissed. Plaintiff does not respond. The Court will dismiss all Doe Defendants without prejudice. Plaintiff has had ample opportunity to locate and name defendants in this action.
V. Are Punitive Damages Available to Plaintiff?
Defendants argue that punitive damages are not available, citing A.R.S. § 12-820.04, which provides that "[n]either a public entity nor a public employee acting within the scope of his employment is liable for punitive or exemplary damages." Plaintiff responds by arguing that punitive damages were awarded against the sheriff in Flanders.
Municipalities are immune from punitive damages under § 1983. See City of Newport v. Fact Concerts, 453 U.S. 247, 271 (1981). Additionally, "[a] suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself." Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991). Plaintiff has sued the Sheriff only in his official capacity. Because this suit functionally is against a municipality, and Plaintiff cannot recover punitive damages against a municipality under state law or § 1983, punitive damages are not available. Flanders is not to the contrary. The sheriff in Flanders was sued in his individual capacity; no punitive damages were assessed against the county.
VI. Defendants' Motions to Strike Mr. Sullivan's Expert Testimony.
A. The Timeliness of Mr. Sullivan's Reports and Affidavit.
George Sullivan is an expert witness for Plaintiff. Mr. Sullivan was a corrections consultant hired by the DOJ and the United States Attorney during the investigation of the Yavapai County jails.
This Court issued a Case Management Order on March 23, 2005, setting a deadline of August 19, 2005 for Plaintiff's expert disclosure. Doc. #23. The Case Management Order required disclosure of "full and complete" expert reports by this date. Id.
Plaintiff identified Mr. Sullivan as an expert witness on May 18, 2005. Doc. #65 at 2. Plaintiff disclosed Mr. Sullivan's curriculum vitae and two previous reports — dated July 18, 1997 and August 21, 2001 ("1997 and 2001 Reports") — by the deadline. Doc. #66 at 2. On October 14, 2005, Plaintiff disclosed an expert report prepared by Mr. Sullivan on October 11, 2005 ("2005 Report"). Doc. #65 at 2; see Doc. #73 Ex. 1. This report was based on disclosures made by Defendants on June 28 and July 25, 2005. Doc. #67 at 2. On November 4, 2005, Plaintiff disclosed an addendum to the 2005 Report ("2005 Addendum"). Id.; see Doc. #73 Ex. 2. On April 10, 2006, Plaintiff submitted a 20-page affidavit from Mr. Sullivan in response to Defendant's motion for summary judgment and in support of Plaintiff's cross-motion for summary judgment ("2006 Affidavit"). Doc. #73. The 2006 Affidavit contains Mr. Sullivan's expert opinions regarding issues in this case based on the 2005 Report and 2005 Addendum. Id.
Defendants argue that Mr. Sullivan should be stricken as an expert because of the untimely disclosure of reports required by Rule 26(a)(2)(B), or that his testimony be limited to the 1997 and 2001 Reports that were timely disclosed. Doc. #65. Plaintiff argues that Mr. Sullivan should not be precluded from testifying because his late reports were the result of Defendants' own untimely disclosures. Doc. #66 at 1.
The expert disclosure deadline contained in the Case Management Order was established pursuant to Rule 16 of the Federal Rules of Civil Procedure. Doc. #23. A deadline established under Rule 16 "shall not be modified except upon a showing of good cause[.]" Fed.R.Civ.P. 16(b); see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("The scheduling order `controls the subsequent course of the action' unless modified by the court.") (quoting Fed.R.Civ.P. 16(a)). "Good cause" exists when a deadline "cannot reasonably be met despite the diligence of the parties seeking the extension." Fed.R.Civ.P. 16 Advisory Comm.'s Notes (1983 Am.).
Plaintiff never sought to extend the expert report deadline, but now, in effect, asks the Court to do so. Plaintiff argues that the 2005 Report and 2005 Addendum should not be stricken because they were delayed by Defendants' late production of documents. Plaintiff admits, however, that the 2005 Report and Addendum were prepared before the defense documents were actually produced. Doc. #66. The Report and Addendum therefore were based on information acquired by Mr. Sullivan in his work for the DOJ and on information disclosed by Defendants in June and July of 2005. Because Defendants produced the late documents on November 30, 2005 — after Plaintiff had disclosed the 2005 Report and Addendum — the Report and Addendum could not have been based on the late documents. Indeed, Plaintiff thereafter confirmed that the late documents did not alter Mr. Sullivan's already-disclosed opinions. Doc. #66 at 3-4. Given these facts, the Court cannot conclude that Defendants' late document production caused Plaintiff's untimely expert report disclosures. Moreover, Plaintiff was expressly warned that the Court's deadlines for disclosure would be enforced, see Doc. #23 ¶ 10, and yet never sought to extend the expert disclosure deadline or compel Defendants' production of documents.
Plaintiff argues that Defendants have not been prejudiced by the untimely expert disclosures. "Although the existence or degree of prejudice to the party opposing the modification [of a Rule 16 deadline] might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609 (citation omitted). Because Plaintiff has not shown that he was unable, despite diligence, to meet the Court's expert deadline, and therefore has made no showing of good cause under Rule 16(b), the 2005 Report, 2005 Addendum, and 2006 Affidavit (which is based on the 2005 Report and Addendum) are untimely and the Court will strike these documents. See Doc. #65. The Court will deny the motion to strike the 1997 and 2001 Reports as untimely because they were disclosed by the August 19, 2005 deadline. See id.
B. Mr. Sullivan's Unavailability at Trial.
Defendants also argue that Mr. Sullivan's reports and affidavit should be stricken as hearsay because Mr. Sullivan will not be available to testify at trial based on a confidentiality agreement between Mr. Sullivan and the DOJ. Doc. #80 at 5 (citing Bortell v. Eli Lilly Co., 406 F. Supp. 2d 1 (D.D.C. 2005); Metro. Enter. Corp. v. United Techs. Int'l Corp., No. Civ. 303CV1685JBA, 2005 WL 2300382 (D. Conn. Sept. 21, 2005)). Plaintiff acknowledges that Mr. Sullivan has "agreed that it would not be proper for him to testify in this matter." Doc. #81 at 3. Plaintiff contends, however, that Mr. Sullivan's unavailability at trial does not render his reports and affidavit improper evidence on summary judgment.
At the summary judgment stage, courts focus on the admissibility of the evidence's content rather than its form. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (stating that a party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment"); Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). Courts thus may consider hearsay evidence contained in an expert report or affidavit where the expert "could later present that evidence through direct testimony, i.e. `in a form that would be admissible at trial.'" Williams v. Borough of W. Chester, 891 F.2d 458, 465 n. 12 (3d Cir. 1989); see Fraser, 342 F.3d at 1037 ("Fraser could testify to all the relevant portions of the diary from her personal knowledge. . . . Because the diary's contents could be presented in an admissible form at trial, we may consider the diary's contents in the Bank's summary judgment motion.").
In this case, however, it is undisputed that Mr. Sullivan will not be available to testify at trial. See Docs. ##80 at 2-5, 81 at 3. Because Plaintiff has made no argument or showing that the evidence contained in Mr. Sullivan's reports and affidavit can be presented in an admissible form at trial, see Doc. #81, the Court may not consider the evidence for summary judgment purposes. See Bortell, 406 F. Supp. 2d at 8-9 ("Without [the affiants'] availability to testify and undergo cross-examination either at trial or in a pre-trial deposition, the Court cannot credit the affidavits as anything more than hearsay."); Metro. Enter. Corp., 2005 WL 2300382, at *7 ("[T]he parties agree that Wei is unavailable to testify because he resides and works in Taiwan and will not voluntarily appear at the trial. His letter therefore remains inadmissible hearsay unless plaintiff can show that it meets an exception to the hearsay rule."); see also Santos v. Murdock, 243 F.3d 681, 682 (2d Cir. 2001) ("Because we find that the sole piece of evidence proffered by Santos in opposition to defendants' motion for summary judgment — an affidavit by a non-party witness — would be inadmissible at trial for substantive purposes and did not show that the witness would testify in support of Santos's case at trial, we affirm the district court's determination that Santo failed to show that there was a genuine issue as to any material fact."). The Court will grant Defendants' motion to strike all of Mr. Sullivan's reports and affidavits based on his unavailability at trial. See Doc. #80.
Given this ruling, the Court need not address Defendants' arguments that Mr. Sullivan's reports and affidavit are inadmissible because they are conclusory and not based on personal knowledge. See Doc. #80 at 3-5.
VII. The Motions for Summary Judgment.
A. Summary Judgment Standard.
A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 322-23; Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
B. The § 1983 Claim.
Jail officials have a duty to protect inmates from violence at the hands of other inmates. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). The failure of jail officials to protect inmates from attacks by other inmates may rise to the level of a constitutional violation when "(1) the deprivation alleged is `objectively, sufficiently serious' and (2) the prison officials had a `sufficiently culpable state of mind,' acting with deliberate indifference." Id. (quoting Farmer, 511 U.S. at 834). "`Deliberate indifference entails something more than mere negligence but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Id. (quoting Farmer, 511 U.S. at 835) (alterations omitted).
"Claims by pretrial detainees are analyzed under the Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment. Because pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment, however, [courts] apply the same standards." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Defendants argue that their efforts to reduce overcrowding and violence in the jails in response to the DOJ investigation precludes a finding of deliberate indifference as a matter of law. Docs. ##70 at 4-11, 78 at 8-10. Plaintiff acknowledges that Yavapai County has spent considerable resources in constructing a new detention facility and that Defendants have implemented many of the procedures recommended by the DOJ. Doc. #72 at 8. Plaintiff nonetheless contends that Defendants were deliberately indifferent to his risk of being harmed by another inmate because Defendants' efforts to reduce overcrowding at the jail were unsuccessful and they did not send inmates to privately owned facilities, increase house arrest or intensive probation programs, or reduce pretrial incarceration times. Id. at 8-9.
The undisputed evidence shows that all of the procedures recommended by the DOJ during its investigation of the Yavapai County jails were either implemented by Defendants or considered and rejected for reasons consistent with National Institute of Corrections standards. Doc. #71 ¶ 109. Defendants' efforts to alleviate overcrowding and reduce the violence in the jails included attempts to house prisoners in other County jails, the construction of a new 480-bed detention facility, a plan to identify and address inmate safety issues, an increase in the number of staff members at the jails and additional training for staff members, more inmate surveillance and searches, and improved inmate identification and classification systems. Id. ¶¶ 43-44, 47-62, 67-90. Defendants also made efforts to reduce stress among the inmate population and provide inmates with alternatives to disruptive or violent behavior, which included weekly GED, life skills, and bible study classes; twice weekly alcoholics and narcotics anonymous classes; access to library materials, board games, cable television, and the news during waking hours; instituting a jail banking system; making snacks, hygiene products, and writing supplies available at the prison commissary; and providing indigent inmates with necessary supplies. Id. ¶ 88.
Construing the evidence in Plaintiff's favor, Defendants were, at most, negligent in failing to implement some procedures recommended by the DOJ in a more timely and effective manner and failing to take the steps suggested by Plaintiff, i.e., sending inmates to privately owned facilities, increasing house arrest and intensive probation programs, and reducing pretrial incarceration times. Plaintiff himself seems to acknowledge this conclusion by bringing his § 1983 claim as one for "civil rights negligence" and alleging in the claim that the alleged assault on him "occurred as a direct result of the negligence of [D]efendants[.]" Doc. #1 ¶ 22 (emphasis added).
Deliberate indifference, however, "entails something more than mere negligence[.]" Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 835); see Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) ("[A] prison official may be held liable if he acted with `deliberate indifference' to a substantial risk of serious harm. Mere negligence is not sufficient to establish liability. Rather, the official's conduct must have been `wanton,' which turns not upon its effect on the prisoner, but rather, upon the constraints facing the official.") (citation omitted); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) ("In determining deliberate indifference, we scrutinize the particular facts and look for substantial indifference in the individual case, indicating more than mere negligence[.]"). Because Plaintiff has failed to provide evidence from which a reasonable jury could conclude that Defendants were deliberately indifferent to his safety, the Court will grant summary judgment on his § 1983 claim.
C. The Negligence Claim.
A.R.S. § 12-820.02(A)(4) requires a showing of "gross negligence" in order for a public entity or employee to be liable for "an injury caused by a prisoner to any other prisoner[.]" To establish gross negligence, a plaintiff "must show wanton misconduct that `is flagrant and evinces a lawless and destructive spirit.'" Badia v. City of Casa Grande, 988 P.2d 134, ¶ 27 (Ariz.Ct.App. 1999) (quoting Scott v. Scott, 252 P.2d 571, 575 (Ariz. 1953)); see Williams v. Thude, 934 P.2d 1349, 1351 (Ariz. 1997).
A.R.S. § 12-820(4) defines "prisoner" as "a person incarcerated while awaiting sentence or while serving a sentence imposed by a court of law." Plaintiff does not contend that his status as a pretrial detainee renders A.R.S. § 12-820.02(A)(4) inapplicable to this case. See Doc. #72.
Defendants argue that they are entitled to summary judgment because Plaintiff has presented no evidence of gross negligence. Doc. #70 at 15. Plaintiff does not address this argument in his response. See Doc. #72. The Court agrees with Defendants that, even construing the evidence in Plaintiff's favor, a jury could not reasonably conclude that Defendants' conduct in this case was wanton and "evince[d] a lawless and destructive spirit.'" Badia, 988 P.2d at ¶ 27. The Court accordingly will grant summary judgment in Defendants' favor on the negligence claim. See id. (affirming summary judgment in favor of the city and police officers where the plaintiff failed to present evidence showing that the police officers were grossly negligent in releasing the plaintiff's daughter into the custody of her boyfriend who murdered her shortly after her release from jail).
D. The Assault and Battery Claim.
Defendants argue that they are entitled to summary judgment on Plaintiff's assault and battery claim because there is no evidence that any county official, employee, or agent committed an assault and battery on Plaintiff. Doc. #70 at 14. Plaintiff does not address this argument in his response. See Doc. #72. The Court agrees with Defendants. Any claim for assault and battery would properly lie against Mr. Johnson, the inmate who assaulted Plaintiff, but Mr. Johnson has been dismissed from this case. See Doc. #56. The Court accordingly will grant summary judgment on the assault and battery claim.
IT IS ORDERED:
1. Defendant G.C. "Buck" Buchanan is dismissed. The current Sheriff of Yavapai County is substituted in his place under Federal Rule of Civil Procedure 25(d)(1).
2. All Doe Defendants are dismissed without prejudice.
3. Defendants' motion to strike expert witness (Doc. #65) is granted in part and denied in part as set forth in this order.
4. Defendants' motion to strike Sullivan affidavit and report (Doc. #80) is granted.
5. Defendants' motion for summary judgment (Doc. #70) is granted.
6. Plaintiff's cross-motion for summary judgment (Doc. #72) is denied
7. The Clerk shall terminate this action.