Free Reply to Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA GERALD BYERLY, Plaintiff, v. DEPUTY WARDEN, et al., Defendants. Defendant Schriro replies in support of her motion to strike the affidavit of Plaintiff's expert, Charles Montgomery ("Motion"). Alternatively, Defendant Schriro, requests additional time to file a reply in support of her motion for summary judgment. I. Montgomery's Affidavit Fails to State a Factual Basis for His Opinion. In his response to Defendant's Motion, Plaintiff correctly states that an expert is not required to "exhaustively detail" the factual basis for his opinion in an affidavit opposing summary judgment. However, the factual basis for an expert affiant's opinion must be stated in the affidavit. Bulthuis v. Rexall Corp, 789 F.2d 1315, 13171318 (9th Cir. 1985). Charles Montgomery, Plaintiff's expert, opines that Plaintiff's conditions of confinement at the Alhambra Reception Center violated Farmer v. Brennan, 511 U.S. 825 (1994) (Affidavit at ¶¶ 35, 36.). However, in his affidavit, Mr. Montgomery fails to provide any facts to support the subjective prong of the Farmer
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No. CV 04-0323-PHX-FJM (GEE) REPLY IN SUPPORT OF DEFENDANT'S MOTION TO STRIKE THE AFFIDAVIT OF CHARLES MONTGOMERY OR, ALTERNATIVELY, MOTION FOR ENLARGEMENT

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test. While the Defendant may disagree with Mr. Montgomery's facts and opinions1, the facts upon which Mr. Montgomery bases his opinion that Plaintiff was housed in "conditions posing a substantial risk of serious harm" are clearly set forth in his affidavit. However, we are left to guess the facts Mr. Montgomery utilized as a basis for his conclusion that Director Schriro (who had no part in creating the protective segregation policy and who, at the time of the alleged incident, had only held the position as ADC's Acting Director for approximately eleven weeks), was aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed to Plaintiff and that she drew the inference. While Mr. Montgomery need not "exhaustively detail" the factual basis for his opinions, he must set forth the facts that he utilized to reach the opinion that Director Schriro acted with "subjective recklessness" and "acted with a conscious disregard of a substantial risk of serious harm." The affidavit of Charles Montgomery, which fails to meet the requirements of Rule 56(e), Federal Rules of Civil Procedure, and Rule 705, Federal Rules of Evidence, should be struck. To the extent Plaintiff seeks to supplement the affidavit, his request should be denied. II. Plaintiff Will Not Be Prejudiced By the Requested Extension. Should the Court deny Defendant's motion to strike the Montgomery Affidavit, Defendant Schriro has requested, pursuant to Rule 6(b), Federal Rules of Civil Procedure, that she be afforded a one hundred and twenty day enlargement of the deadline to file a reply in support of her motion for summary judgment. Defendant is not in a position to file a reply that can adequately address the issues raised by Montgomery's affidavit and set forth in Plaintiff's opposition. The requested
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Mr. Montgomery comments on the housing units at Alhambra, their proximity to staff, and audio and video surveillance. However, there is no indication that the documents he reviewed included a facility map, and he has not conducted an onsite visit. (See Affidavit at ¶ 41.)
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enlargement will afford the Defendant, the opportunity, upon receipt of the report, to depose Mr. Montgomery and/or retain a rebuttal expert. Because this Court did not specify a deadline for the submission of expert reports, Plaintiff had until November 16, 2005 to submit Mr. Montgomery's written report. On November 16, 2005, Plaintiff served Defendant with a Supplemental Rule 26(a)(2) Expert Disclosure that consists of the "Affidavit of Plaintiff's Expert Mr. Charles Montgomery." This is the same document that is attached as Exhibit I to Plaintiff's Separate Statement of Facts in Opposition to Defendant's Motion for Summary Judgment and as Exhibit B to Plaintiff's Response in opposition to Defendant's Motion to Strike. To the extent Plaintiff may deem this affidavit to be Mr. Montgomery's written report, the affidavit does not meet the requirements of an expert report, as set forth in Rule 26(a)(2)(B), Federal Rules of Civil Procedure. Plaintiff contends that he will be unduly burdened if Defendant's request for an enlargement is granted; however, he fails to cite to any reason the enlargement would be burdensome. While Plaintiff would have the Court believe that the Defendant should have "reasonably inferred" that he would submit Charles Montgomery's affidavit in opposition to their motion for summary judgment (Response at 6), this is not the case. In Plaintiff's Second Supplemental Disclosure Statement (Exhibit D to Response), Plaintiff clearly states that "Mr. Montgomery may provide expert testimony in the form of a written opinion and/or oral testimony by way of deposition or trial." An affidavit, however, is not testimony. And, there is nothing indicated in Plaintiff's disclosure statement from which the Defendant could "reasonably infer" that Plaintiff would submit Montgomery's affidavit in conjunction with an opposition to Defendant's motion for summary judgment. Defendant made the appropriate inquiry as to when Plaintiff was going to provide Montgomery's expert report so that the deposition of Mr. Montgomery could

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be scheduled and a rebuttal expert retained by Defendant, if necessary. Plaintiff infers that the Defendant could already have deposed Mr. Montgomery; however, logically speaking, the Defendant would have little reason to depose Mr. Montgomery prior to receipt of his report, which should set forth, in detail, the basis and reasons for any proffered opinions. The enlargement being sought will not be prejudicial to the Plaintiff and is not being made for purposes of delay, but out of necessity. III. Case May Be Summarily Resolved. Defendant reiterates that this case may be summarily resolved based upon Plaintiff's failure to exhaust his administrative remedies, and she is prepared to submit a reply on the limited issue of Plaintiff's failure to exhaust. Plaintiff fails to address this matter in his response to the Motion. IV. Conclusion. For the above stated reasons, the affidavit of Charles Montgomery should be stricken, and Plaintiff's motion to supplement the affidavit should be denied. Alternatively, Defendant requests a one hundred and twenty day enlargement of the deadline to reply in support of her motion for summary judgment. Should the Court deem it appropriate, Defendant is prepared to submit a reply on the limited issue of Plaintiff's failure to exhaust administrative remedies. RESPECTFULLY SUBMITTED on this 28th day of November, 2005. TERRY GODDARD Attorney General s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL and One copy of the foregoing filed this 28th day of November, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 28th day of November, 2005, to: Amanda J. Vaught WATERFALL ECONOMIDIS 5210 E. Williams Cir. Tucson, AZ 85711-4473 Attorney for Plaintiff

s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0399/RM#G2004-20952

935581

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