Free Response in Opposition to Motion - District Court of Arizona - Arizona

Amanda J. Vaught SB #023035
[email protected]
LAW OFFICES

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WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.
Williams Center, Eighth Floor 5210 E. Williams Circle Tucson, AZ 85711

(520)790-5828

Attorneys for Plaintiff 5

IN THE UNITED STATES DISTRICT COURT
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FOR THE STATE OF ARIZONA
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Gerald Byerly, Plaintiff, vs. Deputy Warden, et al., Defendants.

NO. CV 04-0323-PHX-FJM (GEE) PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE THE AFFIDAVIT OF CHARLES MONTGOMERY OR, ALTERNATIVELY, MOTION FOR ENLARGEMENT

Plaintiff Gerald Byerly responds in opposition to Defendant's Motion to Strike the Affidavit of Charles Montgomery or, Alternatively, Motion for Enlargement. I. Introduction Defendant has moved to strike the affidavit of Plaintiff's expert witness, Mr. Charles Montgomery ("Montgomery"), asserting that Montgomery's affidavit testimony fails to set forth a factual basis for his conclusion "that Director Schriro knew that injury was substantially certain to occur to Plaintiff," in violation of Rule 56(e), Federal Rules of Civil Procedure and Rule 705, Federal Rules of Evidence. (See Defendant's Motion to Strike Affidavit of Charles Montgomery, or Alternatively, Motion for Enlargement ("Motion to Strike") at pp. 2-3, ll. 25-22.) For the reasons set forth below, the Court should either: (1) deny Defendant's Motion to Strike in its entirety; (2) if supplementation is needed, grant Plaintiff leave to supplement Montgomery's affidavit; or (3) in the extremely unlikely event that Plaintiff fails to adequately supplement

Case 2:04-cv-00323-FJM

Document 78

Filed 11/16/2005

Page 1 of 7

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Montgomery's affidavit, strike only the precise portions of Montgomery's affidavit that the Court finds are not adequately supported by a factual basis. II. Montgomery's Affidavit Adequately Sets Forth the Factual Basis for his Expert Opinion on Both Prongs of Farmer and is Admissible. The question of admissibility of affidavits in support of motions for summary

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judgment is governed by Rule 56(e) of the Federal Rules of Civil Procedure. Rule
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56(e) provides as follows:
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WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

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When submitted to support or oppose a summary judgment motion, an affidavit must be on personal knowledge, must set forth facts that would be admissible at the time of trial, and must establish the affiant's competence to testify. Fed. R. Civ. P. 56(e). Affidavits of the party opposing summary judgment should be indulgently treated.

5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

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Doff v. Brunswick Corp., 372 F.2d 801, 803-04 (9th Cir.1966), rehearing denied (Feb. 3, 1967). An expert opinion is admissible if it appears the affiant is competent to give

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an expert opinion and the factual basis for the opinion is stated in the affidavit, even
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though the underlying factual details and reasoning upon which the opinion is based
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are not. Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir.1985); California Dept.
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of Toxic Substances Control v. Interstate Non-Ferrous Corp., 298 F.Supp.2d 930, 985
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(E.D.Cal. 2003) (Emphasis added.) An expert is not required to, absent a motion for
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supplementation or request from the court, exhaustively detail the factual basis for his
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opinions in an affidavit opposing summary judgment. Bulthuis, 789 F.2d at 1318.
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Detailed inquiry into the facts and data underlying an expert's opinion is reserved for
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cross-examination at trial, and is inappropriate at the summary judgment stage.
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Bieghler v. Kleppe, 633 F.2d 531, 534 (9th Cir.1980).
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In cases involving failure to prevent harm, like the case at bench, the Eighth
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Amendment is violated only when the inmate shows he is incarcerated under
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conditions posing substantial risk of serious harm, and that officials displayed
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1 "deliberate indifference" to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 2 834-35, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). A prison official cannot be 3 found liable under the Eighth Amendment, for denying an inmate humane conditions 4 of confinement, unless the official knows of and disregards an excessive risk to inmate 5 health and safety; the official must both be aware of facts from which inference could 6 be drawn that substantial risk of serious harm exists, and the official must also draw 7 that inference. Id. at 837, 114 S.Ct. at 1978.
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

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In order to establish the "subjective recklessness" of the prison official, the

9 inmate must demonstrate that the official acted with a conscious disregard of a 10 substantial risk of serious harm. Id. at 842, 114 S.Ct. at 1981. Whether a prison
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 official had requisite knowledge of substantial risk, so as to have duty to protect 12 prisoner from harm, is question of fact subject to demonstration in usual ways, 13 including inferences from circumstantial evidence, and the fact finder may conclude 14 that prison official knew of a substantial risk from very fact that the risk was obvious. 15 Id. 16

Defendant's sole contention with Montgomery's affidavit is that he "fails to

17 provide any facts regarding the second prong of the Farmer test, i.e., that Director 18 Schriro was aware of the facts from which the inference could be drawn that a 19 substantial risk of serous harm existed and she drew the inference." (Motion to Strike 20 at p. 3, ll. 19-22.) In paragraphs 2-5, 7-10, 12-15, 29-33 and 38-40 of his affidavit, 21 Montgomery sets forth the factual basis for his opinion on both prongs of Farmer. (See 22 Affidavit of Charles Montgomery attached at Exhibit A; Affidavit of Plaintiff's Expert Mr. 23 Charles Montgomery attached at Exhibit I to Plaintiff's Separate Statement of Facts in 24 Opposition to Defendant's Motion for Summary Judgment, "Montgomery Affidavit" at 25 ¶¶ 2-5, 7-10, 12-15, 29-33, 38-40.) (A copy of Montgomery's Affidavit is attached at 26 -3Case 2:04-cv-00323-FJM Document 78 Filed 11/16/2005 Page 3 of 7

1 Exhibit B for the Court's convenience.) Based upon these facts, Montgomery provided 2 his expert opinion on both prongs of Farmer1. Accordingly, Defendant's objection is 3 misplaced; the affidavit contains an adequate factual basis for the expert opinions. 4

Defendant also asserts that Montgomery's repeated referrals to DI 67 as "her (Motion to Strike at p. 4, ll. 7-8.) Montgomery's

5 policy" is without a factual basis.

6 references to DI 67 as Defendant's policy is his expert opinion reached from his forty7 two (42) years of experience in corrections, his review of Defendant's entire deposition
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

8 transcript, and a plethora of documents contained in the record. (Montgomery Affidavit 9 at ¶¶ 2, 3, 4.) Defendant has ratified and adopted DI 67as her own policy; she did so 10 by allowing the dangerous DI 67 Alhambra protective segregation policy to operate at
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 the Alhambra Reception Center in the precise manner laid out in Plaintiff's Opposition 12 to Defendant's Motion for Summary Judgment.

Further, Defendant continues to

13 support and sustain this policy today. Under Bulthuis, supra, the factual basis for 14 Montgomery's categorization is adequately laid and Montgomery's referrals to DI 67 15 as "her policy" are appropriate. 16 17 18 19 20 21 22 23 24
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For the foregoing reasons, Defendant's Motion to Strike should be denied it its entirety. III. If the Court Finds that Montgomery's Affidavit Fails to Set Forth an Adequate Factual Basis for His Expert Opinion on Defendant's State of Mind Plaintiff Should be Granted Leave to Supplement Montgomery's Affidavit. Rule 705 of the Federal Rules of Evidence establishes a presumption that

Farmer expressly provides that the plaintiff may present circumstantial evidence to establish the second prong of Farmer, i.e., the state of mind of the defendant. Farmer, 511 U.S. at 842. Montgomery's expert opinion that Defendant knew that serious injury 25 was substantially certain to occur to Plaintiff as a result of the Alhambra protective segregation policy is circumstantial evidence formed as a result of Montgomery's 26 expert review and analysis of the direct evidence in the record.
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1 supporting facts need not be stated in an expert's opinion unless requested. Bulthuis, 2 supra, 789 F.2d at 1317 (9th Cir.1985); Fed. R. Evid. 705. In light of this presumption, 3 courts have held that it would be unfair to grant summary judgment against a plaintiff 4 without first affording the plaintiff an opportunity to supply them. Id. See California 5 Dept. of Toxic Substances Control, supra, 298 F.Supp.2d at 985 (E.D.Cal. 2003). If 6 the Court determines that additional facts are necessary to support Montgomery's 7 expert opinion, Plaintiff requests thirty (30) days to supplement Montgomery's affidavit
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.
2 8 accordingly .

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5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

Defendant Should Not be Granted an Extension of Time in Which to Reply to Defendant's Opposition to Summary Judgment and Plaintiff Would be Prejudiced if this Court were to Grant Defendant her Requested Extension. If the Court denies Defendant's Motion to Strike, Defendant requests that she

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be granted an additional 120 days in which to file a reply in support of her motion for summary judgment. Plaintiff opposes any extension of time and asserts that the Court has already held that it will not disrupt the Court's Rule 16 Scheduling Order as a result of counsels' tactical decisions. (See Order of July 27, 2005, at Exhibit C.) If Plaintiff were granted an extension to file her Reply, the extension would certainly disrupt the Scheduling Order, and will prejudice and unduly burden Plaintiff. Defendant was advised in early August 2005 that Montgomery may offer expert testimony in opposition to her summary judgment motion. Plaintiff disclosed

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In the unlikely event the Court determines that Montgomery's expert opinion on the Defendant's state of mind is not supported by an adequate factual basis and Plaintiff is unable to adequately supplement his testimony, after being afforded the opportunity to do so, the Court should strike only the precise portion of Montgomery's affidavit the Court determines is not adequately supported by facts. In resolving motions to strike a Rule 56 affidavit the Court must attempt to separate the "wheat from the chaff." Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir.2001). The rule requires a scalpel not a butcher knife and the nisi prius court ordinarily must apply it to each segment of the affidavit, not to the affidavit as a whole. Id. at 315. -5Case 2:04-cv-00323-FJM Document 78 Filed 11/16/2005 Page 5 of 7

1 Montgomery as his expert witness on August 8, 2005, and informed Defendant that 2 Montgomery would be testifying on Plaintiff's behalf, in the form of a written opinion or 3 oral testimony, regarding the Director's protective segregation policy at the Alhambra 4 Reception Center on September 25, 2003. (See Plaintiff's Second Supplemental 5 Disclosure Statement at Exhibit D.) It is reasonable to infer that Plaintiff would likely 6 submit some form of testimony from Montgomery in Plaintiff's Opposition to 7 Defendant's Motion for Summary Judgment and Defendant should have anticipated,
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

8 and prepared, for such testimony. 9

Aside from the single inquiry into when Plaintiff was going to provide Defendant

10 with Montgomery's written report, Plaintiff was never contacted by Defendant with a
5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

11 request to depose Montgomery or otherwise learn of how Plaintiff would be using 12 Montgomery's testimony in this matter.

Plaintiff has never been contacted by

13 Defendant regarding any concerns that if she were not able depose Montgomery 14 promptly, she would be ill prepared to respond to any testimony that he may offer in 15 Plaintiff's opposition to her motion for summary judgment. Because Defendant has 16 known of Montgomery's role in this matter for almost three months, her request for an 17 extension in order to reply to Plaintiff's opposition to her motion for summary judgment 18 should be denied. 19 20

VI.

Conclusion For the foregoing reasons, Plaintiff requests that: (1) Defendant's Motion to

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Strike be denied in its entirety; (2) in the Court determines supplementation is
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warranted grant Plaintiff thirty (30) days in which to file a supplement to Montgomery's
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Affidavit; or (3) in the extremely unlikely event that Plaintiff is unable to adequately
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supplement Montgomery's Affidavit, after being afforded the opportunity to do so, the
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Court should only strike the first sentence of paragraph 11 and the phrase "including
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1 Defendant" in paragraph 36 of Montgomery's affidavit. 2

Plaintiff further requests that Defendant's Motion for an extension of time in

3 which to Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment 4 be denied. 5 6 7
WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

DATED this 16th day of November, 2005. WATERFALL, ECONOMIDIS, CALDWELL, HANSHAW & VILLAMANA, P.C.

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5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 (520)790-5828

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By \s\ Amanda Vaught Attorneys for Plaintiff COPY of the foregoing filed electronically this16th day of November, 2005, with:

United States District Court District of Arizona 16 401 West Washington Phoenix, AZ 85003
15 17 18 Copy of the foregoing has been sent electronically 19 this 16th day of November, 2005 to: 20 Kelley J. Morrissey, Esq. 21 Assistant Attorney General

1275 West Washington Street Phoenix, AZ 85007-2926 23 [email protected] Attorneys for Defendant 24 ___\s\__________________ 25 Liza Dausinger
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