Free Motion to Strike - 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 moves to strike the affidavit of Plaintiff's expert, Charles Montgomery. Alternatively, Defendant Schriro, requests additional time to file a reply in support of her motion for summary judgment. I. Montgomery's Affidavit Fails to Meet the Requirements of Rule 56(e) Federal Rules of Civil Procedure and Rule 705, Federal Rules of Evidence. In response to Defendant's motion for summary judgment, Plaintiff submitted his separate statement of facts, which includes the affidavit of Charles Montgomery. (See Exhibit I to Plaintiff's Separate Statement of Facts in Opposition to Defendant's Motion for Summary Judgment). Mr. Montgomery, who is described as a "nationally recognized independent expert in the field of corrections," has been retained by Plaintiff to "provide expert testimony on the issue of whether Defendant's DI 67 protective segregation policy at the Alhambra Reception Center is deliberately No. CV 04-0323-PHX-FJM (GEE) MOTION TO STRIKE THE AFFIDAVIT OF CHARLES MONTGOMERY OR, ALTERNATIVELY, MOTION FOR ENLARGEMENT

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indifferent to inmates' safety, especially inmates who are convicted sex offenders." (Plaintiff's Statement of Facts at ¶ 41.) Plaintiff has not provided Defendant with Mr. Montgomery's expert report. Montgomery's affidavit fails to meet the requirements of Rule 56(e), Federal Rules of Civil Rules of Civil Procedure and Rule 705 of the Federal Rules of Evidence and should, therefore, be stricken. Rule 56(e) provides that when affidavits are used to support or oppose a motion for summary judgment, the affidavits "shall be made of 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." Rule 705 of the Federal Rules of Evidence provides that "the expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination." With regard to the use of expert testimony in the context of a motion for summary judgment, the United States Court of Appeals, Ninth Circuit noted in United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981), "we have difficulty with the notion that to state an opinion is to set forth specific facts." The court went on to state that "in the context of a motion for summary judgment, an expert must back up his opinion with specific facts." Id. Recognizing the possible tension between the requirements of Rules 56(e) and 705, the Ninth Circuit concluded, in Bulthuis v. Rexall Corp, 789 F.2d 1315, 1317-1318 (9th Cir. 1985), that expert opinion is admissible if it appears the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning upon which the opinion is based are not. It is Mr. Montgomery's opinion that Director Schriro knew that injury was substantially certain to occur to Plaintiff and that the conditions of confinement at the

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Alhambra Reception Center violated Farmer v. Brennan, 511 U.S. 825 (1994) (Affidavit at ¶¶ 11, 35, 36). However, Montgomery fails to state the factual basis for his opinions, which is a requirement for the admissibility of the affidavit. In Farmer, the United States Supreme Court was abundantly clear about what constitutes deliberate indifference. The court set out the two-pronged test that determines when a failure to protect a prison inmate from assault by other inmates rises to the level of a constitutional violation. 511 U.S. at 834. To make out a claim of deliberate indifference to the threat of serious harm or injury by another prisoner, the plaintiff must assert first that the deprivation of his or her rights was "objectively, `sufficiently serious'" i.e., the official's act or omission must result in the denial of the "minimal civilized measure of life's necessities." Id. The prisoner must have been "incarcerated under conditions posing a substantial risk of serious harm." Id. Second, the prison official must have a "sufficiently culpable state of mind," i.e. he must act with deliberate indifference to inmate health or safety. Id. The Supreme Court has further defined this subjective test: the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. In his affidavit, Montgomery sets forth the reasons for his opinion that Plaintiff was housed in "conditions posing a substantial risk of serious harm." He, however, fails to provide any facts regarding the second prong of the Farmer test, i.e. that Director Schriro was aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed and she drew the inference. In fact, Montgomery does not conclude that Schriro drew the requisite inference. Instead, Montgomery simply concludes, without stating any facts, that it is his opinion that to a "high degree of probability and certainty" Director Schriro knew that injury was substantially certain to occur to Plaintiff because "any responsible prison official

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would know." (Affidavit at ¶ 11). As the court stated in Slaughter v. Southern Talc Co., 919 F.2d 304, 307 (5th Cir. 1990), "[w]ithout more than credentials and a subjective opinion, an expert's opinion that `it is so' is not admissible." Montgomery's affidavit, which includes unsubstantiated opinions and conclusions, fails to comply with Rule 56(e) by failing to set forth specific facts showing that there is a genuine issue for trial. His affidavit is, therefore, inadmissible. Additionally, without a factual basis for such a categorization, Montgomery repeatedly refers to Director's Instruction ("DI") 67 as Director Schriro's policy (Affidavit at ¶¶ 1, 11, 16, 17, 26, 27, 36). In truth, Defendant Schriro had no part in creating this policy. The effective date of the current version of DI 67 was June 1, 2001." Defendant Schriro did not join the Arizona Department of Corrections ("ADC") until 2003, and on September 24, 2003, Defendant Schriro had only held the position as ADC's Acting Director for approximately eleven weeks. II. Alternatively, Defendant Schriro Requests Additional Time To File A Reply In Support of Her Motion For Summary Judgment. Should the Court deny Defendant's motion to strike the Montgomery Affidavit, Defendant Schriro requests, pursuant to Rule 6(b), Federal Rules of Civil Procedure,

17 that she be afforded additional time to file a reply in support of her motion for 18 summary judgment. 19 Plaintiff has not provided Defendant with Charles Montgomery's expert report. 20 Mr. Montgomery's opinions and conclusions were disclosed to Defendant for the first 21 time in Montgomery's affidavit, which is an exhibit to Plaintiff's separate statement of 22 facts. Because this Court did not specify a deadline for the submission of expert 23 reports, Plaintiff has until November 16, 2005 to submit Mr. Montgomery's report. 24 Accordingly, Defendant is not in a position to file a reply that can adequately address 25 the issues raised by Montgomery's affidavit and set forth in Plaintiff's opposition. 26 Defendant Schriro, therefore, requests a one hundred and twenty day enlargement of
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the deadline to file a reply in support of her motion for summary judgment. The requested enlargement will afford the Defendant the opportunity to depose Mr. Montgomery and/or retain a rebuttal expert. Fed. R. Civ. P. Rule 6(b) provides that this court may exercise its discretion to enlarge litigation deadlines. Defendant Schriro submits that the circumstance set forth above constitutes sufficient cause for this court to exercise its discretion to grant the requested enlargement. 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. Failure to Exhaust Administrative Remedies. Defendant Schriro maintains that Plaintiff had access to the ADC grievance process and failed to exhaust his administrative remedies, as mandated by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a). (See Motion for Summary Judgment at 4-9.) Defendant further maintains that this case may be summarily resolved based on Plaintiff's failure to exhaust. Accordingly, 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. IV. Conclusion. For the above stated reasons, Defendant Schriro moves to strike the affidavit of Charles Montgomery. 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 /// /// /// /// ///

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reply on the limited issue of Plaintiff's failure to exhaust administrative remedies. RESPECTFULLY SUBMITTED on this 31st day of October, 2005. TERRY GODDARD Attorney General s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants ORIGINAL and One copy of the foregoing filed this 31st day of October, 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 31st day of October, 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

931464

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