Opinion
CV-19-08239-PCT-GMS
10-13-2022
Ruby Charley, Plaintiff, v. United States of America, Defendant.
ORDER
G. MURRAY SNOW JUDGE
Pending before this Court is the United States' Motion for Summary Judgment. (Doc. 60). For the reasons set forth below, the Motion is granted.
BACKGROUND
On January 9, 2018, the Navajo Nation Police allegedly failed to respond to calls requesting welfare checks for a man outside and exposed to the elements on the Navajo Nation Reservation near Burnt Corn, Arizona. Plaintiff's decedent, G.C., was found dead the next day. Because the federal government funds the Reservation's police department, Plaintiff filed administrative claims against the United States with the Department of the Interior and the Department of Health and Human Services. After the agencies denied her claims, she brought this timely action under the Federal Tort Claims Act. On December 17, 2021, the United States moved for summary judgment.
LEGAL STANDARD
Summary judgment is proper when the pleadings, viewed in the light most favorable to the nonmoving party, present “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(c). To defeat a motion for summary judgment, the non-moving party “must come forward with significant probative evidence demonstrating the existence of a genuine issue of material fact.” Jefferson v. Hardison, 162 F.3d 1168 (9th Cir. 1998). And if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” then the Court must deny the motion. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015).
DICUSSION
Among other arguments, Defendant asserts that Plaintiff cannot introduce admissible evidence sufficient to create an issue of fact about whether the police received any calls before January 10, 2018. Plaintiff's only evidence on this point is Paulette Johnson's testimony that she called the Navajo Police on the afternoon of January 9, 2018, to request a welfare check for a man she had seen crawling on the ground near a roadway where G.C. was later discovered. To the extent that Defendant's arguments go to the weight of such testimony in light of facts argued by either side, they are not persuasive. It is for the jury to resolve such arguments.
However, the dispositive question for the Court is, can Plaintiff introduce admissible evidence as to what Paulette Johnson allegedly told the Navajo Police? Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment”). “A party may object that the material cited to support . . . a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The only evidence Paulette Johnson called the police on January 9, 2018 to tell them they needed to conduct a welfare check is her own testimony. As Defendant points out, however, Ms. Johnson's testimony about what she said to the police is hearsay. Hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Because Ms. Johnson's testimony is offered for its truth, it is inadmissible absent an applicable hearsay exception. Fed.R.Evid. 802. Plaintiff offers none.
In her Response, Plaintiff does not address the substance of this argument. Of course, the problem with Ms. Johnson's testimony is not the form in which it was offered at summary judgment (indeed, it was deposition testimony). See, e.g., Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (holding that “[a]t the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its content.”); Sanchez v. Experian Information Solutions, Inc., 2017 WL 11634982 at *2 (C.D. Cal. May 8, 2017) (declining to consider hearsay testimony because it would remain hearsay were it attempted to be introduced at trial.). The problem is that Ms. Johnson's testimony would be inadmissible at trial. Therefore, no admissible evidence suggests that Ms. Johnson called the Navajo Police on January 9, 2018 and requested a welfare check for Plaintiff's decedent before his death.
There is no admissible evidence that anyone else did either. In Plaintiff's Response, she asserts that “[t]wo other individuals told the police that they also saw the man laying by the road on January 9.” (Doc. 65 at 2). Plaintiff refers to the police report to support this factual assertion. That report notes, however, that on January 10, 2018, after the police discovered the body, two individuals told them that they had seen him lying in the bushes earlier. This fact does nothing to suggest that police knew of the decedent's circumstances before his death.
CONCLUSION
IT IS THEREFORE ORDERED that the United States' Motion for Summary Judgment (Doc. 60) is GRANTED. This case is dismissed. The Clerk of Court is directed to enter judgment and terminate the matter.