Free Objection - 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 FELIPE J. MARTINEZ, Plaintiff, v. JAMES W. BAIRD, et al., Defendants. DEFENDANTS' OBJECTIONS TO PLAINTIFF'S UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S STATEMENT OF DISPUTED FACTUAL ISSUES No. CV 03-1729-PHX-RCB (LOA)

Defendants, Baird, Jones, Siers, and Macabuhay, object to and move to strike portions of "Plaintiffs Statement of Undisputed Facts in Support of Motion for Summary Judgment" (Dkt. 104), and "Plaintiffs Statement of Disputed Factual Issues" (Dkt. 107) in that they fail to comply with LRCiv 56.1. Defendants also move, pursuant to Rule 56(e), Federal Rules of Civil Procedure, to strike certain affidavits, declarations, exhibits, or portions of declarations and affidavits that do not constitute or contain admissible evidence. This Motion is supported by the following Memorandum of Points and Authorities. ... ... ...

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MEMORANDUM OF POINTS AND AUTHORITIES OBJECTIONS TO PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT A. PLAINTIFF'S FACTS ARE NOT UNDISPUTED.

Plaintiff states that his facts are "undisputed." Defendants, however, have not 5 stipulated to any of these purportedly "undisputed" facts. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. ONLY ADMISSIBLE EVIDENCE CAN BE CONSIDER BY THE COURT.

Rule 56(e) of the Federal Rules of Civil Procedure states that affidavits and other materials submitted for or against a summary judgment motion "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." In other words, only admissible evidence may be considered by the Court. Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Inadmissible hearsay cannot be considered on a motion for summary judgment. See, e.g., Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 345 n.4 (9th Cir. 1995); Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 851 (9th Cir. 1995); Fong v. American Airlines, Inc., 626 F.2d 759, 763 (9th Cir. 1980). Affidavits submitted in support of or in opposition to a summary judgment motion must be based on personal knowledge, or they will be excluded. Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996); Jacobsen v. Filler, 790 F.2d 1362, 1367 (9th Cir. 1986); Howard v. City of Greenwood, Miss., 783 F.2d 1311, 1315 (5th Cir. 1986). Unauthenticated documents cannot be considered on summary judgment. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). ... ... ...

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C.

AFFIDAVITS OF JOHNSON, REXRODE, NELSON, AND RUSSEY ARE NOT ADMISSIBLE EVIDENCE.

Exhibit 67 to Plaintiff's Declaration consists of the affidavits of inmates Johnson1, Rexrode, Nelson, and Russey. These affidavits, however, are not admissible evidence as an attachment to Plaintiff's Declaration. The affidavits are not based on Plaintiff's personal knowledge, are not facts as would be admissible in evidence, and do not show affirmatively that Plaintiff is competent to testify to the matters stated therein. Neither the affidavits nor paragraph 140 of Plaintiff's Declaration should be considered by the Court. Should the Court determine that the affidavits may be considered individual exhibits, rather than as an attachment to Plaintiff's Declaration, these affidavits do not constitute admissible evidence and should not be considered by the Court. The issue in this case is whether Plaintiff met the Arizona Department of Corrections' criteria to receive treatment for hepatitis C. The information contained in the affidavits of Johnson, Rexrode, Nelson, and Russey is not relevant to any issue before this Court. None of the affidavits contain information regarding Plaintiff's medical state, medical history, personal history, or the medical care he received. Instead, each of the affidavits relates only to the individual affiant's alleged experience with receiving treatment for hepatitis. While Plaintiff seeks to introduce these affidavits because each of the inmates allegedly received treatment for hepatitis (Plaintiff's Declaration at ¶ 140), the availability of treatment is not an issue in the case. The issue is whether Plaintiff met the medical criteria to receive the available treatment. Whether one receives treatment is based on one's individual laboratory results and personal history, and none of the affiants indicates that his laboratory

Plaintiff moved to strike the Affidavit of Zachary Johnson from the record on January 23, 2006. (Dkt. 106.)
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results and personal history are the same, or even remotely similar, to Plaintiff's. Accordingly, the affidavits do not constitute admissible evidence. D. PLAINTIFF'S DECLARATION.

Plaintiff's Declaration is Exhibit 1 to his Statement of Facts. To be considered on a motion for summary judgment, in addition to being sworn upon personal knowledge and offered by a competent affiant, an affidavit or declaration must state specific facts admissible at evidence at the time of trial. Federal Rules of Civil Procedure 56(e). In addition to the affidavits of inmates Johnson, Rexrode, Nelson, and Russey (see Section III above), Defendants object to the portions of Plaintiff's Declaration which are not based on personal knowledge, are not facts as would be admissible in evidence, and do not show affirmatively that Plaintiff is competent to testify to the matters stated therein2. Plaintiff clearly states that his Declaration is not only based on personal knowledge, but is also based on the review of non-specified "pertinent records and documents" and Plaintiff's "personal investigations." (Declaration at 1.) Defendants object to the following paragraphs of Plaintiff's Declaration because the statements therein contain arguments and opinions and not facts admissible at evidence at the time of trial: 26, 35, 36, 40, 45-52, 59, 64, 73, 83, 85, 88, 96-99, 101-103, 105, 107, 108, 117-128, 130, 131, 136-139. Defendants object to paragraph 20 of the Declaration, as it lacks foundation and includes inadmissible hearsay as to statements purportedly made by Defendant Macabuhay. Exhibit 18, which is cited in support of paragraph 20, does not indicate that Defendant Macabuhay conducted a "cursory examination" or that Defendant Macabuhay told Plaintiff that ADC no longer performed liver biopsies for HCV. Plaintiff has included Defendants' discovery responses as exhibits to his Declaration instead of as separate exhibits to his statement of facts. Defendants have not objected to the discovery responses on that basis.
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Defendants object to Plaintiff's characterization of the contents of Exhibit 23, a consultation request form which Plaintiff cites as support for paragraph 25 of the Declaration. The document does not include a consultation request for drug screens. Additionally, the document is signed by Defendant Macabuhay as the "ordering physician." There is no indication that the consultation request was "agreed upon" by Defendant Macabuhay and others after the request was approved by the Outside Review Committee ("ORC"). Defendants object to Plaintiff's self-serving statements regarding Defendant Macabuhay's note taking, which are contained in paragraphs 27 and 28 of the Declaration. Plaintiff provides no foundation for his statements that he told Defendant Macabuhay of his pain and symptoms and that Macabuhay failed to record this information. Defendants object to Plaintiff's characterization of his conversation with Defendant Macabuhay, which is set forth in paragraph 30. Neither of the exhibits cited as support for paragraph 30 indicates that Plaintiff "brought to Dr. Macabuhay's attention my concern as to why he had failed to so much as mention our previous dialogue in my record about my symptoms." Defendants object to paragraph 34 of Plaintiff's Declaration and Exhibit 31, which is offered as support for this statement. Exhibit 31 is purportedly the response to a grievance appeal filed by ADC inmate Stephen Lewandowski. The document cannot be properly authenticated by Plaintiff, is not relevant to Plaintiff's claims, and both paragraph 34 and Exhibit 31 constitute inadmissible hearsay evidence. Defendants object to paragraph 38 of the Declaration. Neither of the exhibits, which are cited in support of this statement, indicates that a vaccination for hepatitis A and B should have been ordered by Defendant Macabuhay as part of policy/protocol. Defendants object to the characterization of Defendant Jones' former duties, as set forth in paragraphs 57 and 58 of the Declaration. The documents cited by Plaintiff as support for paragraph 57 of the Declaration do not indicate that inmate grievance

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appeals are "high level interrogatives" which must be responded to by the Deputy Director of Inmate Health Services. Additionally, despite the statements included in paragraph 58, ADC's grievance policy, Department Order 802, does not state that the Deputy Director for Inmate Health Services' written response to a grievance appeal is final and exhausts available administrative remedies. Department Order 802 requires that the written response be forwarded to ADC Legal Services for review and comments. The response is then forwarded to the Director, whose signed response is final, thus exhausting available administrative remedies. (See Plaintiff's Exhibit 52, Department Order 802 at 9-10.) Defendants object to paragraph 61 of the Declaration. The documents cited by Plaintiff as support for this statement do not indicate that Defendants Baird and Jones are/were the "principle" (principal) policy makers within ADC Health Services. Defendants object to paragraph 87 of the Declaration and the document to which it cites, Exhibit 61, which is purportedly an information page from the American Liver Foundation. There is no foundation for the introduction of Exhibit 61; Plaintiff is not competent to testify to the matters stated therein; and paragraph 87 and Exhibit 61 constitute inadmissible hearsay. Defendants object to paragraphs 104 of the Declaration and its characterization of the information in Exhibit 42. Exhibit 42, Defendant Baird's responses to requests for admissions, does not state that "in some seven years" Plaintiff's ALT levels have never tested within the normal range. Instead, in response to request for admission number 8, Defendant Baird admitted that, since Plaintiff was diagnosed with hepatitis C while in the ADC, he has not tested within the normal range. Defendants object to paragraph 109 of the Declaration, which is not supported by Exhibit 62. Exhibit 62 states simply that Plaintiff was dropped from a class and was a "no show." The document does not indicate that Plaintiff was dropped from the class because he was

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too ill to attend. Defendants object to paragraphs 110 and 111 of the Declaration as educational programs and bible study programs which Plaintiff may have completed are not relevant to any issues before the Court. Defendants object to paragraph 135 of Plaintiff's Declaration, as well as Exhibit 39, which consists of inadmissible hearsay evidence and is not based on Plaintiff's personal knowledge. Defendants object to paragraph 141 of Plaintiff's Declaration as Plaintiff does not have personal knowledge of the genuineness of, and cannot authenticate, all exhibits attached to his Declaration. Plaintiff's Declaration includes references to the National Institute of Health ("NIH") Consensus Statement (Exhibit 39) and the Centers for Disease Control ("CDC") Morbidity and Mortality Weekly Report and Recommendations and Report (Exhibit 40). These exhibits should be stricken, as well as the portions of Plaintiff's Declaration that refer to these exhibits (¶¶ 40, 45, 48(L), 89, 90, 96, 97, 103, 105, 107, 128). There is no foundation for the introduction of Exhibits 39 and 40, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. Plaintiff's Declaration includes references to Exhibit 53, ADC Hepatitis C Treatment Program, which Plaintiff states is "currently in effect." (See Plaintiff's Statement of Undisputed Facts, ¶ 67.) Defendants object to Exhibit 53, as well as the portions of Plaintiff's Declaration that refers to this exhibit (¶¶ 36, 38, 62, 63, 65-72, 74-82, 83). The program set forth in Exhibit 53 is not ADC's current hepatitis C treatment program. E. STATEMENT OF FACTS.

Local Rule 56.1 of the Rules of Practice of the United States District Court for the District of Arizona provides that a party who is opposing a motion for summary judgment must include as part of the opposition, a separate statement of facts, which sets forth in a serial fashion, the facts upon which the party relies. "As to each fact,

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the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.)." (Id.) Defendants object to portions of Plaintiff's Undisputed Statement of Facts that do not properly refer to a portion of the record where the fact may be found. Additionally, much of Plaintiff's Statement of Facts consists of a replication of his Declaration, as well as the arguments contained in his motion for summary judgment and his opposition to Defendants' motion for summary judgment. Listed below are the paragraphs in Plaintiff's Undisputed Statement of Facts ("PSF") that are inadmissible and their evidentiary defects. PSF ¶1: Statement is inaccurate. Plaintiff was released to his term of community supervision on March 20, 2005. Plaintiff absconded and was returned to ADC's custody on July 1, 2005. A copy of Plaintiff's AIMS report is available for the Court's review. PSF ¶ 5: Statement lacks foundation. Plaintiff cites to his Declaration, along with Exhibits 6 and 7, in support of this statement. Plaintiff's Exhibit 6, which consists of medical notes, does not indicate that Plaintiff made a "formal request" for interferon antiviral therapy. Exhibit 6 indicates that Plaintiff told Nurse Mongiat that he had received literature from his family regarding hepatitis C and Interferon and that Plaintiff asked Nurse Mongiat, "Can I get it?" PSF ¶ 14: Statement lacks foundation and includes irrelevant information. Plaintiff cites to his Declaration, which includes Exhibit 16, as support for this statement. Exhibit 16 consists of documents related to Plaintiff's transfer to the Arizona State Prison Complex -- Lewis. The documents contained in Exhibit 16 do not indicate that other protective segregation inmates were transferred to the Lewis Complex, and the transfer of other inmates is not relevant to any issue before the Court.

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PSF ¶ 15: Statement lacks foundation, is self-serving, and includes inadmissible hearsay evidence. Only the unsubstantiated statements contained in Plaintiff's Declaration are offered in support of this statement. PSF ¶ 16: Statement lacks foundation and is self-serving. Only the unsubstantiated statements contained in Plaintiff's Declaration are offered in support of this statement. PSF ¶ 18: Statement lacks foundation, is self-serving, is argumentative, and includes inadmissible hearsay evidence. Plaintiff cites to his Declaration and Exhibit 18 as support for this statement. Exhibit 18 does not state that Plaintiff informed Defendant Macabuhay that his previous healthcare provider told him that the next step in the protocol was to be a liver biopsy. Additionally, Exhibit 18 does not indicate that Defendant Macabuhay conducted a "cursory examination" or that Defendant Macabuhay told Plaintiff that ADC no longer performed liver biopsies for HCV. PSF ¶ 19: Statement lacks foundation, is conclusory, and consists of inadmissible hearsay evidence. Defendants also object to Exhibit 39, described as the "NIH Consensus Statement on Management of Hepatitis C 2002." Plaintiff is not competent to testify to the matters contained in this exhibit and it constitutes inadmissible hearsay evidence. PSF ¶ 24: Statement lacks foundation and mischaracterizes the contents of Exhibit 23. Plaintiff cites to paragraph 25 of his Declaration, which includes Exhibit 23, as support for this statement. Exhibit 23, a consultation request form, does not include a consultation request for a drug screen (see "Objective" section of Exhibit 23). Additionally, Exhibit 23 is signed by Defendant Macabuhay as the "ordering physician." There is no indication that the consultation request was "agreed upon" by Defendant Macabuhay and others after the request was approved by the Outside Review Committee ("ORC"), which is referred to by Plaintiff as the "Outside Referral Committee."

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PSF ¶¶ 28, 29: Statements are misleading. In addition to the portions of Department Order 802 to which Plaintiff cites, i.e. "assigned CO III shall contact the appropriate medical staff for response," Department Order 802 also indicates that in connection with an informal resolution, a CO III shall "investigate." (Plaintiff's Exhibit 52, §§ 802.08 and 802.11.) Such an investigation, regarding allegedly inadequate medical care, would include determining what efforts Plaintiff had made to contact medical regarding his issues. PSF ¶ 30: Statement lacks foundation and includes inadmissible hearsay evidence. PSF ¶ 34: Statement is irrelevant to any issue before this Court. Plaintiff cites to his Declaration, which includes Plaintiff's Exhibit 31 (purportedly the response to a grievance appeal filed by ADC inmate Stephen Lewandowski), as support for this statement. The document cannot be properly authenticated by Plaintiff, is not relevant to Plaintiff's claims, and constitutes inadmissible hearsay evidence. PSF ¶ 35: Statement lacks foundation and includes an argument and opinion. Neither paragraph 35 of Plaintiff's Declaration nor the documents to which it cites, provides support for Plaintiff's description of the responsibilities of Defendant Siers. Additionally, Plaintiff's characterization of the June 19, 2003 grievance appeal response consists of argument and opinion, and not facts supported by the record. PSF ¶ 36: Statement lacks foundation. Neither Plaintiff's Declaration nor the exhibits to which it cites indicates that an abdominal ultrasound was denied, that genotyping is to occur during Phase III, or that Plaintiff was qualified for any "phase" of the treatment program. Additionally, the statement includes an argument and opinion ("Defendants Baird and/or Jones individually and/or collectively assumed the unlawful authority to deny my primary healthcare provider request for ultrasound.").

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PSF ¶ 38: Statement lacks foundation and includes an argument and opinion. The documents cited by Plaintiff in support of this statement do not indicate that a vaccination was "part of policy/protocol." PSF ¶ 41: Statement lacks foundation and includes an argument and opinion. Plaintiff cites to paragraph 40 of his Declaration, which includes Exhibit 40, as support for this statement. Exhibit 40 consists of a CDC Morbidity and Mortality Weekly Report and Recommendations and Report, dated January 24, 2003. There is no foundation for the introduction of this exhibit, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. PSF ¶ 46: Statement lacks foundation and includes an argument and opinion. Plaintiff cites to paragraph 45 of his Declaration, which includes Exhibits 39 & 40, as support for this statement. Exhibit 39 consists of the "NIH Consensus Statement on Management of Hepatitis C 2002." Exhibit 40 consists of a CDC Morbidity and Mortality Weekly Report and Recommendations and Report, dated January 24, 2003. There is no foundation for the introduction of these exhibits, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. PSF ¶ 48: Statement lacks foundation and consists of an argument and opinion regarding the treatment Plaintiff received at ASPC-Winslow and ASPC-Lewis and not facts supported by the record. PSF ¶ 49: Statement lacks foundation, is self-serving, and includes inadmissible hearsay evidence. Plaintiff cites to paragraph 20 of his Declaration, which includes Exhibit 18, as support for this statement. Exhibit 18 does not state that Plaintiff informed Defendant Macabuhay that his previous healthcare provider told him that the next step in the protocol was to be a liver biopsy. Additionally, the statement is repetitive (see PSF ¶ 18).

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PSF ¶ 50: Statement lacks foundation, is self-serving, includes inadmissible hearsay evidence, and includes an argument and opinion. This statement is not supported by Plaintiff's Declaration or any exhibits to which Plaintiff cites. None of the documents indicates that Plaintiff informed Defendant Macabuhay that his previous healthcare provider told him that the next step in the protocol was to be a liver biopsy or that Defendant Macabuhay told Plaintiff that ADC no longer performed liver biopsies for HCV and instead order LFT's and tests for HCV viral load. PSF ¶ 51: Statement lacks foundation and consists of an argument and opinion. Plaintiff cites to Exhibit 39, an NIH Consensus Statement, as support for this statement. There is no foundation for the introduction of this exhibit, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. PSF ¶ 52: Statement lacks foundation, consists of an argument and opinion, and is not supported by the record. PSF ¶ 53: Statement lacks foundation, consists of an argument and opinion, and is not supported by the record. PSF ¶ 55: Statement lacks foundation, consists of an argument and opinion, and is not supported by the record. Plaintiff fails to cite to any admissible evidence to support the following statement: "Plaintiff clearly meets all of the aforementioned factors for disease and fibrosis progression, facts which Macabuhay is aware of." PSF ¶ 56: Statement lacks foundation, consists of an argument and opinion, and is not supported by the record. PSF ¶ 62: Statement lacks foundation. Except for Plaintiff's Declaration, the documents cited by Plaintiff do not indicate that inmate grievance appeals are "internal high level interrogatives" which must be responded to by the Deputy Director of Inmate Health Services.

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PSF ¶ 63: Statement lacks foundation. ADC's grievance policy, Department Order 802, does not state that the Deputy Director for Inmate Health Services' written response is final and exhausts available administrative remedies. Department Order 802 requires that the written response be forwarded to ADC Legal Services for review and comments. The response is then forwarded to the Director, whose signed response is final, thus exhausting available administrative remedies. (See Plaintiff's Exhibit 52, Department Order 802, at 9-10.) PSF ¶ 64: Statement lacks foundation, consists of an argument and opinion, and is not supported by the record. PSF ¶ 65: Statement lacks foundation. PSF ¶ 67: Statement lacks foundation and is inaccurate. Plaintiff cites to paragraphs 62 through 83 of his Declaration, which includes Exhibit 53, as support for this statement. Plaintiff states that the hepatitis treatment program set forth in Exhibit 53 is "currently in effect." However, this exhibit does not contain ADC's current hepatitis treatment program. PSF ¶ 68: Statement consists of an argument. PSF ¶ 69: Statement lacks foundation. Plaintiff cites to paragraphs 69 and 70 of his Declaration, which includes Exhibit 53, as support for this statement. Exhibit 53 does not contain ADC's current hepatitis treatment program. PSF ¶ 70: Statement lacks foundation. Plaintiff cites to paragraph 77 of his Declaration, which includes Exhibit 53, as support for this statement. Exhibit 53 does not contain ADC's current hepatitis treatment program. PSF ¶ 71: Statement lacks foundation. Statement is based upon the contents of Exhibit 53; however, this exhibit does not contain ADC's current hepatitis treatment program.

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PSF ¶ 72: Statement lacks foundation, consists of an argument and opinion, to the extent Plaintiff cites to paragraph 99 as support for this statement. PSF ¶ 75: Statement lacks foundation and mischaracterizes the contents of Exhibit 49. Plaintiff cites to paragraph 100 of his Declaration, which includes Exhibit 49, as support for this statement. Under Exhibit 49, ADC's Guidelines for the Evaluation and Treatment of Hepatitis C" updated 06/07/04, there are additional factors to be considered prior to approval for a liver biopsy. PSF ¶ 76: Statement mischaracterizes the contents of Dr. Jones'interrogatory response. From August, 2001 to January, 2003, the ADC criteria for HCV treatment was under revision. PSF ¶ 77: Statement lacks foundation and consists of an argument and opinion. PSF¶ ¶ 78, 79: Statements lack foundation and consist of an argument and opinion. Paragraphs 96 and 97 of Plaintiff's Declaration, which includes Exhibits 39 and 40, are cited in support of these statements. There is no foundation for the introduction of these exhibits, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. PSF ¶ 80: Statement lacks foundation and consists of an argument and opinion. Paragraphs 96 and 97 of Plaintiff's Declaration, which includes Exhibits 39 and 40, are cited in support of this statement. There is no foundation for the introduction of these exhibits, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. PSF ¶ 81: Statement lacks foundation and consists of an argument and opinion. Paragraph 103 of Plaintiff's Declaration, which includes Exhibit 39, is cited as support for this statement. There is no foundation for the introduction of Exhibit 39, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay.

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PSF ¶ 82: Statement lacks foundation and consists of an argument and opinion. Exhibit 39 is cited in support of this statement (Plaintiff's Declaration, ¶¶ 105, 107). There is no foundation for the introduction of Exhibit 39, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. PSF ¶ 83: Statement is inaccurate. The ADC medical system includes the "ORC" or Outside Review Committee. PSF ¶ 84: Statement lacks foundation and consists of an argument and opinion. PSF ¶ 85: Statement is inaccurate. The ADC medical system includes the "MRC." PSF ¶ 86: Statement lacks foundation and consists of an argument and opinion. PSF ¶ 88: Statement lacks foundation and consists of an argument and opinion. PSF ¶¶ 89, 90, 91: Statements lack foundation and consist of an argument and opinion. Plaintiff cites to Exhibits 39 and 40 as support for PSF 90 and 91. There is no foundation for the introduction of these exhibits, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. PSF ¶ 92: Statement lacks foundation and consists of an argument and opinion. Defendants object to the admissibility of the affidavits of inmates Russey, Rexrode, Nelson, and Johnson (See Section C above). II. OBJECTIONS TO PLAINTIFF'S STATEMENT OF DISPUTED FACTUAL ISSUES In addition to his "Statement of Undisputed Facts in Support of Motion for Summary Judgment," Plaintiff also filed a "Statement of Disputed Factual Issues."

21 Defendants move to strike the Statement of Disputed Factual Issues, as it is simply a 22 repetition of the facts set forth in the Statement of Undisputed Facts. Should the Court 23 not strike the Statement of Disputed Factual Issues, Defendants' objections are set 24 forth as follows: 25 26

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Defendants object to and move to strike Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment. A declaration must be based upon personal knowledge; however, Plaintiff's Declaration is based on personal knowledge, as well as a non-specified "pertinent records and documents" and Plaintiff's "personal investigations concerning Hepatitis C." (Declaration in Opposition at 1.) Defendants object to and move to strike Exhibits 39 and 40 to Plaintiff's Declaration in Support of Motion for Summary Judgment, as well as the portions of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and Plaintiff's Statement of Disputed Factual Issues for which these exhibits are offered as support. There is no foundation for the introduction of Exhibit 39 (NIH Consensus Statement) or Exhibit 40 (CDC Morbidity and Mortality Weekly Report), Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. Accordingly, these exhibits, as well as all statements which are supported by these exhibits [paragraphs 3, 9, 11, 12, 14-17, 70-75 78, 80, 81, 89-92 100, 102, 103 of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and paragraphs 1, 7, 9, 10, 12-15, 80, 82-87, 89, 91, 94, 95, 103-108, 120, 129, 130 of Plaintiff's Statement of Disputed Factual Issues] should be stricken. Defendants object to and move to strike Exhibit 53 to Plaintiff's Declaration in Support of Motion for Summary Judgment, to the extent Plaintiff deems it to be ADC's current hepatitis treatment policy. Defendants object to and move to strike Exhibit 61 to Plaintiff's Declaration in Support of Motion for Summary Judgment, which is purportedly an information page from the American Liver Foundation. There is no foundation for the introduction of Exhibit 61, Plaintiff is not competent to testify to the matters stated therein, Exhibit 61 constitute inadmissible hearsay. Accordingly, Exhibit 61 and paragraph 14 of

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Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and paragraph 12 of Plaintiff's Statement of Disputed Factual Issues should be stricken. Defendants object to and move to strike Exhibit A to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment, which consists of an article by Dr. Tina St. John entitled, "Peginterferon's Early Results." There is no foundation for the introduction of Exhibit A, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. Exhibit A, as well as paragraphs 11and 14 of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and paragraphs 9 and 12 of Plaintiff's Statement of Disputed Factual Issues should be stricken. Defendants object to Exhibit F to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment, which purportedly consists of the California Department of Corrections' HCV treatment guidelines. There is no foundation for the introduction of Exhibit F, the exhibit is not relevant to any claim before the Court, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. Exhibit F, as well as paragraph 79 of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and paragraph 93 of Plaintiff's Statement of Disputed Factual Issues should be stricken. Defendants object to Exhibit H and I to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment, which appear to be 2001 articles from the editorial or opinion section of the Arizona Daily Star newspaper. There is no foundation for the introduction of Exhibits H and I, Plaintiff is not competent to testify to the matters stated therein, and the exhibits constitute inadmissible hearsay. Exhibits H and I, as well as paragraph 89 of Plaintiff's Declaration in Opposition to

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Defendants' Motion for Summary Judgment and paragraph 103 of Plaintiff's Statement of Disputed Factual Issues should be stricken. Defendants object to Exhibit K to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment, which appear to be documentation regarding the drug, Pegasys. There is no foundation for the introduction of Exhibit K, Plaintiff is not competent to testify to the matters stated therein, and the exhibit constitutes inadmissible hearsay. Exhibit K, paragraph 100 of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and paragraph 120 of Plaintiff's Statement of Disputed Factual Issues should be stricken. In addition to the information set forth above, Defendants object to the following portions of Plaintiff's Statement of Disputed Factual Issues ("PSDF"): PSDF ¶¶ 2, 3, 6: Statements lack foundation and are self-serving. PSDF ¶ 11: Statement consists of an argument. PSDF ¶ 12: Statement consists of an argument. Defendants have moved to strike Exhibit 39 to Plaintiff's Declaration in Support of Motion for Summary Judgment and Exhibit A to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment. PSDF ¶ 17: Statement lacks foundation with regard to information therein regarding individuals who experience jaundice. PSDF ¶ 19: Statement lacks foundation and consists of an argument. PSDF ¶ 20: Statement lacks foundation. Plaintiff's Exhibit 6, which consists of medical notes, does not indicate that Plaintiff made a "formal request" for interferon antiviral therapy. Exhibit 6 indicates that Plaintiff told Nurse Mongiat that he had received literature from his family regarding hepatitis C and Interferon and that Plaintiff asked Nurse Mongiat, "Can I get it?"

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PSDF ¶ 29: Statement lacks foundation. Plaintiff is not competent to testify as to the appropriateness of treatment and whether it adhered to the community standard of care. (Plaintiff's Declaration in Opposition, ¶ 31.) PSDF ¶ 33: Statement lacks foundation. The document cited in support of this statement, Exhibit 18 to the Declaration in Support of Motion for Summary Judgment, does not indicate that Plaintiff was told that the next step in the protocol was to be a liver biopsy, that Defendant Macabuhay conducted a "cursory examination," or that Defendant Macabuhay told Plaintiff that ADC no longer performed liver biopsies for HCV. PSDF ¶ 37: Statement lacks foundation. The medical records from October 24, 2002, do not contain the quoted language "persistently elevated ALT levels." PSDF ¶ 38: Statement lacks foundation. The consultation request is signed by Defendant Macabuhay as the "ordering physician." There is no indication that the consultation request was "agreed upon" by Defendant Macabuhay and others after the request was approved by the Outside Review Committee ("ORC"). PSDF ¶ 39: Statement lacks foundation and includes an argument, as well as speculation/conjecture regarding Dr. Macabuhay's feelings and actions. PSDF ¶ 45: Statement lacks foundation regarding an alleged failure by Dr. Macabuhay to acknowledge Plaintiff's pain and symptoms. PSDF ¶ 49: Statement lacks foundation with regard to the issue of policy/protocol. PSDF ¶ 53: Statement lacks foundation. There is no admissible evidence which indicates that Macabuhay conducted a cursory examination of Plaintiff or that Plaintiff made a "formal request" for HCV treatment. PSDF ¶ 54: Statement lacks foundation and consists of an argument as to Macabuhay's alleged actions and the appropriateness of a submission for HCV treatment.

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PSDF ¶ 60: Statement lacks foundation. Except for Plaintiff's self-serving Declaration, there is no indication that CO III Woods refused to investigate and attempt to resolve Plaintiff's complaints. PSDF ¶ 63: Statement is irrelevant to any issue before this Court. Plaintiff cites to his Declaration in Opposition to Defendants' Motion for Summary Judgment, which includes Plaintiff's Exhibit 31 (purportedly the response to a grievance appeal filed by ADC inmate Stephen Lewandowski), as support for this statement. The document cannot be properly authenticated by Plaintiff, is not relevant to Plaintiff's claims, and constitutes inadmissible hearsay evidence. PSDF ¶ 63: Statement lacks foundation. Plaintiff fails to cite to any authority to support this statement. PSDF ¶ 89: Statement lacks foundation. The statement is supported by paragraph 76 of Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment and Exhibit 39 to Plaintiff's Declaration in Support of Motion for Summary Judgment. Plaintiff has no personal knowledge of the medical data contained in paragraph 76 and is not competent to testify at trial regarding these matters. Defendants have moved to strike Exhibit 39. PSDF ¶ 90: Statement lacks foundation. None of the documents cited by Plaintiff indicates that Defendants Baird and Jones are the chief policymakers within the ADC Health Services Division. PSDF ¶ 91: Statement lacks foundation. Statement includes an argument and opinion, as well as speculation/conjecture. Defendants have moved to strike Exhibit 39. PSDF ¶ 92: Statement lacks foundation and consists of an argument and opinion. PSDF ¶ 96: Statement lacks foundation and consists of an argument.

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PSDF ¶ 97: Defendants object to this statement to the extent Plaintiff attempts to make a legal argument regarding stating a Section 1983 claim. PSDF ¶ 98: Statement consists of an argument. PSDF ¶ 101: Statement lacks foundation PSDF ¶ 102: Statement consists of an argument. PSDF ¶ 103: Statement consists of an argument, as well as speculation and conjecture. Defendants have moved to strike Exhibit 40. PSDF ¶ 104: Statement lacks foundation and consists of an argument and opinion. Defendants object to the admissibility of the affidavits of inmates Russey, Rexrode, Nelson, and Johnson (See Section I. C above). PSDF ¶ 105: Statement lacks foundation and consists of an argument. Defendants have moved to strike Exhibit 40. PSDF ¶ 106: Statement lacks foundation, consists of an argument, and speculation/conjecture. Defendants have moved to strike Exhibit 40. PSDF ¶ 107: Statement lacks foundation and consists of an argument and opinion. Defendants have moved to strike Exhibits 39 and 40. PSDF ¶ 108: Statement lacks foundation and consists of an argument and opinion. Defendants have moved to strike Exhibit 39. PSDF ¶ 109: Statement lacks foundation and consists of an argument. PSDF ¶ 110: Statement is not a proper statement of fact and contains information that is not relevant to any claim before the Court. PSDF ¶ 111: Statement lacks foundation. Exhibit 53 does not contain ADC's current hepatitis treatment program. PSDF ¶ 113: Statement is argumentative. PSDF ¶ 115: Statement lacks foundation. Plaintiff is not competent to testify regard medical risks. (Plaintiff's Declaration in Opposition, ¶ 97.)

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PSDF ¶ 116: Statement lacks foundation and consists of an argument. PSDF ¶ 119: Statement lacks foundation PSDF ¶ 120: Statement lacks foundation. Plaintiff is not competent to testify regard medical contraindications. (Plaintiff's Declaration in Opposition, ¶ 100.) Defendants have moved to strike Exhibits 39 and 40 to Plaintiff's Declaration in Support of Motion for Summary Judgment and Exhibit K to Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment. PSDF ¶ 1203: Statement lacks foundation. Exhibit 53 does not contain ADC's current hepatitis treatment program. PSDF ¶ 123: Statement lacks foundation and consists of an argument. Defendants have moved to strike Exhibits 39 to Plaintiff's Declaration in Support of Motion for Summary Judgment. PSDF ¶ 124: Statement lacks foundation. PSDF ¶ 127: Statement lacks foundation. In response to request for admission number 8, Defendant Baird admitted that, since Plaintiff was diagnosed with hepatitis C while in the ADC, he has not tested within the normal range. PSDF ¶ 129: Statement lacks foundation. Statement includes an argument, as well as speculation/conjecture. Defendants have moved to strike Exhibit 39. PSDF ¶ 130: Statement lacks foundation. Statement includes an argument, as well as speculation/conjecture. Plaintiff is not competent to testify regard the community standard of care for the treatment of hepatitis. (Plaintiff's Declaration in Opposition, ¶ 103.) Defendants have moved to strike Exhibits 39 and 40. PSDF ¶ 131: Statement lacks foundation and consists of an argument. PSDF ¶ 132: Defendants object to this statement as Plaintiff does not have personal knowledge of the genuineness of, and cannot authenticate, all exhibits attached to
3

Plaintiff has two paragraphs numbered "120."
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Plaintiff's Declaration in Support of Motion for Summary Judgment and Plaintiff's Declaration in Opposition to Defendants' Motion for Summary Judgment. RESPECTFULLY SUBMITTED on this 22nd day of March, 2006. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing filed electronically this 22nd day of March, 2006, 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 22nd day of March, 2006, to: _ Felipe J. Martinez, #102001 ASPC-Tucson-Santa Rita Unit P.O. Box 24406 Tucson, AZ 85734 Plaintiff Pro Per s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS03-0579/RM#G03-04130 946647

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