Free Objection - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Misty D. Guille Assistant Attorney General State Bar No. 020830 1275 West Washington Phoenix, AZ 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Karen Jean Smith, Plaintiff, v. Linda Vega, et al., Defendants. No. CV 04-00558-PHX-EHC (CRP) DEFENDANT'S OBJECTIONS AND MOTION TO STRIKE OR EXCLUDE PORTIONS OF PLAINTIFF'S STATEMENT OF FACTS (LOCATED AT DKT. 53, EXHIBIT 1)

Defendant Vega, through undersigned counsel, objects to portions of Smith's Statement of Disputed Factual Issues--contained in the Declaration of Karin Smith (dkt. 53, Exhibit 1)--and to portions of the exhibits attached thereto (id., Exhibit 1 at Attachments A­L), and moves the Court to strike them or exclude them from consideration for the reasons set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. The Court May Consider Only Admissible Evidence. When ruling on a motion for summary judgment, the trial court may only consider admissible evidence. Beyene v. Coleman Sec. Servs., Inc., 854 F. 2d 1179, 1181 (9th Cir. 1988). It may not consider unauthenticated documents. See id. at 1182; Fed. R. Evid.

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901(a) (Authentication is a "condition precedent to admissibility" that is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims."). Documents that are authenticated through personal knowledge must be "attached to an affidavit that meets the requirements of Fed. R. Civ. P. 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir.1987) (citation omitted). Likewise, the trial court must exclude from its consideration affidavits that are not based on personal knowledge. Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996) ("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.") (quoting Fed. R. Civ. P. 56(e)). A party who is opposing a motion for summary judgment "may not rest upon the mere allegations or denials of [her] pleading, but [her] response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). As to each fact that she proffers, she must "refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.)." Loc. R. Civ. 56.1(a). II. Plaintiff's Statement of Facts and Defendant's Objections. Defendant Vega objects to the portions of Smith's Statement of Disputed Factual Issues that are inadmissible and/or do not properly refer to a portion of the record where each fact may be found. Specifically, Vega objects to portions of Smith's Statement of Disputed Factual Issues ("PSOF") and exhibits attached thereto as follows: PSOF ¶ 1: Objection. The statement "the major disciplinary report defendant made against me because I made complaints about legal and regular mail" is inaccurate. Vega issued the disciplinary ticket, but she was not responsible for classifying it as a major disciplinary. (Dkt. 48 [Defendant's Statement of Facts] at ¶ 48; see also generally id. at ¶ 21.) Furthermore, the latter part of the statement is conclusory and argumentative.

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PSOF ¶ 4: Objection. Contains information not relevant to the issue before the

PSOF ¶ 5: Objection. Contains information not relevant to the issue before the

PSOF ¶ 6: Objection. Contains information not relevant to the issue before the Court, inadmissible hearsay. PSOF ¶ 7: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 9: Objection. Contains inadmissible hearsay, contains opinion. PSOF ¶ 12: Objection. Contains opinion, lacks foundation, not based on personal knowledge, contains information not relevant to the issue before the Court, fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 13: Objection. Does not identify the letter referred to, lacks foundation, contains inadmissible hearsay. PSOF ¶ 15: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 16: Objection. Contains an opinion, lacks foundation, contains information not relevant to the issue before the Court. Additionally, the statement "I worked in exclusive areas most inmates never see including inmate banking, a pharmacy, personnel and other areas" is not supported by the attachment cited. PSOF ¶ 17: Objection. Contains an opinion, argumentative, lacks foundation. PSOF ¶ 18: Objection. Argumentative, lacks foundation. PSOF ¶ 19: Objection. Contains inadmissible hearsay. PSOF ¶ 20: Objection. Misstates the contents of the exhibit: Vega admitted only that Smith had asked her, on October 28, 2003, "are you suggesting my lawyer is lying,"

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which is not equivalent to the statement "are you suggesting my lawyer is lying about this." PSOF ¶ 21: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 22: Objection. Fails to refer to a specific portion of the record where the fact may be found, argumentative. PSOF ¶ 23: Objection. Fails to refer to a specific portion of the record where the fact may be found, contains inadmissible hearsay, argumentative, contains opinion. PSOF ¶ 24: Objection. Fails to refer to a specific portion of the record where the fact may be found, contains inadmissible hearsay. PSOF ¶ 25: Objection. The statement "I believed I last received mail 10-10-03 so I said "no" is not supported by the attachment cited. PSOF ¶ 26: Objection. The statement is not supported by the attachment cited. Additionally, the statement "I was being placed on report for lying to an officer" misstates the contents of the attachment--the attachment on its face shows that Smith was charged with "lying or representing false or misleading information to staff." PSOF ¶ 27: Objection. Contains inadmissible hearsay. PSOF ¶ 29: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 31: Objection. Argumentative. PSOF ¶ 32: Objection. Lacks foundation, inadmissible hearsay. PSOF ¶ 33: Objection. Contains inadmissible hearsay, fails to refer to a specific portion of the record where each fact may be found. PSOF ¶ 34: Objection. Lacks foundation, inadmissible hearsay. PSOF ¶ 35: Objection. Contains information not relevant to the issue before the Court.

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PSOF ¶ 36: Objection. Lacks foundation, inadmissible hearsay, fails to refer to a specific portion of the record where each fact may be found. PSOF ¶ 37: Objection. Fails to refer to a specific portion of the record where the fact may be found, legal conclusion. PSOF ¶ 38: Objection. Fails to refer to a specific portion of the record where each fact may be found, argumentative. PSOF ¶ 40: Objection. Contains information not relevant to the issue before the

PSOF ¶ 41: Objection. Contains opinion, legal conclusion, argumentative. PSOF ¶ 42: Objection. Contains opinion, legal conclusion, argumentative. PSOF ¶ 43: Objection. Contains opinion, legal conclusion, argumentative. PSOF ¶ 44: Objection. Contains opinion, legal conclusion, argumentative. PSOF ¶ 45: Objection. The second statement misstates the Court's characterization of Smith's remaining claim--the Court stated that Vega was required to answer the allegation that she had "initiated a disciplinary complaint against [Smith] in retaliation for submitting a formal complaint about delays in receiving legal and regular mail." (Dkt. 6 at 4.) PSOF ¶ 46: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 47: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 48: Objection. Fails to refer to a specific portion of the record where the fact may be found. PSOF ¶ 49: Objection. Defendant's counsel, and not Defendant Vega herself, conducted Smith's deposition on May 26, 2006. (See dkt. 48, Exhibit 2 at 3.

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PSOF: The statement after paragraph 50--"The foregoing factual allegations create genuine issues of material fact and will, if proved at trial, entitle me to judgment, as explained in the accompanying memorandum of points and authorities submitted with this declaration."--contains opinion, legal conclusion, argumentative. Attachment A: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Attachment B: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Attachment C: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Attachment E: Objection. Contains inadmissible hearsay. Attachment F: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Additionally, page 1 does not support all the facts asserted. (See PSOF ¶ 16 at lines 9­12.) Attachment G: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Additionally, does not support the fact asserted. (See PSOF ¶ 25 at lines 9­10.) Attachment H: Objection. Does not support the fact asserted. (See PSOF ¶ 26.) Attachment I: Objection. Contains inadmissible hearsay. Attachment J: Objection. Lacks foundation, unauthenticated, contains inadmissible hearsay. Attachment K: Objection. Contains inadmissible hearsay. Conclusion. The Court should strike or exclude them from consideration the above portions of Smith's Statement of Disputed Factual Issues.

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RESPECTFULLY SUBMITTED this 1st day of December 2006. TERRY GODDARD Attorney General /s Misty D. Guille MISTY D. GUILLE Assistant Attorney General Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on the next business day, I served the attached document and Notice of Electronic Filing by mail on the following, who is not a registered participant of the CM/ECF System: Karin Jean Smith, ADC # 86673 ASPC-PV Bldg 36-129 P.O. Box 3400 Goodyear, AZ 85338-0905 Plaintiff Pro Per /s Misty D. Guille
IDS04-0387/RM#G04-20893/989449

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