Free Objection - District Court of Arizona - Arizona

1 Russell A. Kolsrud, #004578 Brad M. Thies, #021354 2 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 3 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 4 (480) 505-0015 5 Attorneys for Defendant ValueOptions, Inc. 6 IN THE UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 SHANNON MICHAEL CLARK, 9 Plaintiff, 10 v. 11 VALUEOPTIONS, INC., 12 Defendant. 13 14 In compliance with Rule 56.1, local rules of practice, ValueOptions, Inc. submits the VALUEOPTIONS, INC.'S OBJECTIONS TO PLAINTIFF'S STATEMENT OF FACTS AND CONTROVERTING STATEMENT OF FACTS Case No. CIV 03-1344-PHX-EHC (MS)

15 following objections to plaintiff's statement of facts in support of motion for summary 16 judgment and controverting statement of facts. The evidence offered to support summary 17 judgment must be admissible under the rules of evidence. Hal Roach Studios, Inc. v. 18 Richard Feiner and Co., 896 F.2d 1542, 1555 (9 th Cir. 1989). 19 Plaintiff's statement of facts are not admissible under the rules of evidence because

20 they: (i) are not properly authenticated, (ii) contain inadmissible hearsay, (iii) contain 21 conclusory statements not supported by evidence, (iv) advance opinions that are reserved 22 for experts and (v) are irrelevant in light of applicable law. The specific paragraphs in 23 dispute correspond to the numbered paragraphs contained in plaintiff's statement of facts. 24 Authentication 25 As recognized by this court, to be admissible in the context of a motion for summary

26 judgment, documents must be authenticated either through depositions or answers to 27 interrogatories, or by being authenticated by and attached to an affidavit, in which case the 28 affiant must be a person through whom the exhibits could be admitted into evidence. U.S.

Case 2:03-cv-01344-EHC-HCE

Document 148

Filed 10/03/2005

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1 v. Dibble, 429 F.2d 598 (9 th Cir. 1970) (emphasis added); Wright and Miller, Fed.Prac. and 2 Proc. §222; Fed.R.Civ.P. 56(e). As previously noted "plaintiff has submitted various 3 documents with his briefs which, although apparently received in response to request for 4 production, are not authenticated." [Dkt. 121, pg. 5, ln. 13-15]. This court previously 5 declined to consider plaintiff's statement of facts to the extent that they were derived from 6 and dependent upon such documents. [ Dkt. 121, pg. 5, ln. 15-17]. Plaintiff now attempts 7 to improperly authenticate documents through his own declaration authenticating 8 documents and statements. (Dkt.141, attached as exhibit E to his motion for summary 9 judgment). Plaintiff's attempt fails to properly authenticate the documents. 10 Authentication is a "condition precedent to admissibility," and this condition is

11 satisfied by "evidence sufficient to support a finding that the matter in question is what its 12 proponent claims." Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9 th Cir. 2002); 13 Fed.R.Evid. 901(a). The Ninth Circuit has repeatedly held that unauthenticated documents 14 cannot be considered in a motion for summary judgment. Id. (Citations admitted). In a 15 summary judgment motion, documents authenticated through personal knowledge must be 16 attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be 17 a person through whom the exhibits could be admitted into evidence. Id. at 774.1

18 Specifically, the Orr court held that a deposition transcript was not properly authenticated 19 through an affidavit of counsel for plaintiff's stating that the deposition was "a true and 20 correct copy" because he lacked personal knowledge of the deposition. Id. The court held 21 it was insufficient for a party to submit, without more, an affidavit from counsel identifying 22 the names of the deponent, the reporter, the action and stating that the deposition is a true 23 24 25 26 27 28 A document can be authenticated [under Rule 901(b)(1)] by the witness who wrote it, signed it, used it, or saw others do so. 31 Wright and Gold, Federal Practice and Procedure: Evidence § 7106, 43 (2000). Federal Rule of Procedure 56(e) requires that affidavits be made on personal knowledge, that the affiant be competent to testify to the matters stated therein, and that certified copies of all papers referred to in the affidavit be attached thereto. Fed.R.Civ.P. 56(e). Plaintiff's authentication fails to comply with these two requirements. 2 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 2 of 10
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1 and correct copy since such affidavit lacks foundation even if counsel were present at the 2 deposition. Id. 3 The court further disallowed a memo of a witness for lack of foundation when

4 counsel for plaintiff did not write the memo, did not observe the witness do so and was not 5 familiar with the witness's signature, holding the memo was not authenticated simply by 6 having been produced in discovery. Id. at 777. Similarly, the court denied admission of 7 a letter for failure to submit an affidavit or deposition testimony from the author stating he 8 wrote the letter and because the attempted introduction of the letter by attaching it to 9 counsel for plaintiff's affidavit does not comply with Rule 56(e), which requires personal 10 knowledge of the letter. Id. As in Orr, plaintiff's self-authentication of documents, except 11 documents of which he would have personal knowledge, fails to satisfy the authentication 12 requirement. As such, these documents should not be considered for purposes of plaintiff's 13 motion for summary judgment. 14 Hearsay 15 Even if plaintiff could provide appropriate authentication, the documents and

16 statements he advanced still constitute inadmissible hearsay. Hearsay is "a statement other 17 than one made by the declarant while testifying at the trial or hearing, offered in evidence 18 to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Hearsay is inadmissible 19 unless defined as non-hearsay or if it falls within a hearsay exception. Orr at 778. Orr held 20 that extracts from a witnesses deposition were inadmissible hearsay when offered to prove 21 the truth of the matter asserted that defendant submitted negative documents about plaintiff 22 to another party. Id. at 779. Even if not offered to directly prove the truth of the matter 23 asserted, statements or documents can still constitute inadmissible hearsay if the proponent 24 seeks to draw an inference from them to prove the truth of the matter asserted. Id. The 25 Ninth Circuit has recognized that newspaper articles clearly fall within the definition of 26 hearsay and should not be considered in relation to a motion for summary judgment. 27 Eisenstadt v. Allen, 113 F.3d 1240, (1997) WL 211313 (9 th Cir. 1997). Finally, in the 28 absence of specific exceptions to the hearsay rule, publications are not admissible. Johnson 3 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 3 of 10

1 v. William C. Ellis and Sons Iron Works, 609 F.2d 820, 822 (5 th Cir. 1980). Plaintiff's 2 statement of facts contain numerous facts relying upon hearsay to which no exception 3 applies. As such, these statements should not be considered in relation to the motion for 4 summary judgment. 5 Improper Opinion and Conclusory Statements 6 Plaintiff's statement of facts further contain improper opinions and conclusory

7 statements. Specifically, lay witnesses are precluded from expressing an opinion based on 8 scientific, technical or other specialized knowledge within the scope of Federal Rules of 9 Evidence 702. Fed.R.Evid. 701(c); Certain Under-writers at Lloyd's London v. Sinkobich, 10 232 F.3d 200, 204-205 (4 th Cir. 2000) (error to allow lay witness to answer hypothetical 11 questions on matters exceeding scope of common experience). Plaintiff's statement of 12 facts is riddled with his opinions relating to mental health diagnosis, standards and 13 procedures. Any such statements are inadmissible and should not be considered in

14 summary judgment. 15 ValueOptions further objects to plaintiff's statement of facts since his statements are

16 conclusory. Evidentiary facts are required to support or oppose summary judgment motion 17 and conclusory statements are not sufficient. Marshall v. East Carroll Parish Hosp. Service 18 Dist., 134 F.3d 319, 324 (5 th Cir. 1998); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 19 1572 (7 th Cir. 1989) (a party to lawsuit cannot ward off summary judgment with an affidavit 20 or deposition based on rumor or conjecture); National Steel Corp. v. Golden Eel Ins. Co., 21 121 F.3d 496, 502 (9 th Cir. 1997) (conclusory allegations of collusion, without factual 22 support are insufficient to defeat summary judgment). Since plaintiff does not have 23 sufficient knowledge or experience to advance these opinions or conclusions, any affected 24 statements should not be considered by this court on summary judgment. 25 26 3. OBJECTIONS TO STATEMENT OF FACTS Admit to the extent that plaintiff used illegal street drugs prior to 1995. Deny

27 plaintiff's assertion that the use of the illegal street drugs was for self-medication of his 28 mental disorders as conclusory, speculative and as advancing improper expert opinion. 4 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 4 of 10

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5. 6.

Deny as conclusory, speculative and as advancing improper expert opinion. Admit to the extent that ADOC and plaintiff requested ValueOptions to

3 conduct a mental evaluation of plaintiff. Deny to the extent that this statement asserts 4 ValueOptions was required to provide mental health care assistance to plaintiff. 5 9. ValueOptions objects to this statement as the document relied upon by

6 plaintiff is not properly authenticated. Further, the statement is objectionable as plaintiff 7 lacks the proper foundation to advance this conclusory statement, it constitutes hearsay and 8 improperly advances expert opinion. 9 10. ValueOptions objects as the document upon which plaintiff relies lacks

10 proper authentication. 11 11. ValueOptions objects as the document upon which plaintiff relies lacks

12 proper authentication and contains inadmissible hearsay. Additionally, plaintiff's statement 13 is conclusory and speculative since it assumes facts not contained in the referenced 14 documents. 15 16 12. 13. ValueOptions objects to this statement as it is irrelevant. ValueOptions objects as the document plaintiff relies upon has not properly

17 been authenticated and contains inadmissible hearsay. Further, ValueOptions objects since 18 this statement is irrelevant. 19 14. ValueOptions objects to this statement as it is irrelevant since plaintiff's

20 affidavit dated October 19, 2004 fails to identify any substance abuse treatment was 21 received prior to the assessment performed by defendant Marshall in August, 2002. 22 15. ValueOptions objects since the document plaintiff relies upon has not been

23 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 24 since this statement is irrelevant. 25 16. ValueOptions objects since the document plaintiff relies upon has not been

26 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 27 since this statement is irrelevant. 28 17. ValueOptions objects to this statement as it is irrelevant. 5 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 5 of 10

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18.

ValueOptions objects since the document plaintiff relies upon has not been

2 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 3 since this statement is irrelevant. 4 19. ValueOptions objects to this statement as it relies on improperly authenticated

5 documents, is based on inadmissible hearsay of a publication, advances conclusory and 6 speculative allegations and advances improper expert opinion. 7 20. ValueOptions objects since the document plaintiff relies upon has not been

8 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 9 since this statement is irrelevant. 10 11 21. 22. ValueOptions objects as this statement is irrelevant. ValueOptions objects since the document plaintiff relies upon has not been

12 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 13 since this statement is irrelevant. 14 23. ValueOptions objects since the document plaintiff relies upon has not been

15 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 16 since this statement is irrelevant. 17 18 24. 25. ValueOptions objects as this statement is irrelevant. ValueOptions objects since the document plaintiff relies upon has not been

19 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 20 since this statement is irrelevant. 21 26. ValueOptions objects since the document plaintiff relies upon has not been

22 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 23 since this statement is irrelevant. 24 32. ValueOptions objects since the document plaintiff relies upon has not been

25 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 26 since this statement is irrelevant. 27 33. ValueOptions objects since the document plaintiff relies upon has not been

28 authenticated and contains inadmissible hearsay. ValueOptions objects since this statement 6 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 6 of 10

1 is irrelevant. This statement is further objectionable as it advances statements that are 2 conclusory, speculative and improperly invades the realm of expert opinion. 3 34. ValueOptions objects since the document plaintiff relies upon has not been This statement is further

4 properly authenticated and contains inadmissible hearsay.

5 objectionable as it is conclusory, speculative and improperly invades the realm of expert 6 opinion. 7 35. ValueOptions objects as this statement is conclusory, speculative and

8 improperly invades the realm of expert opinion. 9 36. ValueOptions objects since the document plaintiff relies upon has not been

10 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 11 since this statement is irrelevant. 12 37. ValueOptions objects since the document plaintiff relies upon has not been

13 properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects 14 since this statement is irrelevant. 15 38. Admit to the extent that ValueOptions contracts with the Arizona Department

16 of Health Services to arrange for the delivery of State created behavioral health services, 17 and is the "regional behavioral health authority" for Maricopa County, Arizona. 18 ValueOptions denies this statement to the extent that it asserts further facts. 19 39. ValueOptions objects since the document plaintiff relies upon has not been

20 authenticated and contains inadmissible hearsay. This statement is further objectionable 21 as it advances statements that are conclusory, speculative and improperly invades the realm 22 of expert opinion. 23 40. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

24 properly authenticated and contains inadmissible hearsay.

25 objectionable as it advances statements that are conclusory, speculative and improperly 26 invade the realm of expert opinion. Further, this statement is irrelevant. 27 41. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

28 properly authenticated and contains inadmissible hearsay. 7 Case 2:03-cv-01344-EHC-HCE Document 148

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1 objectionable as it advances statements that are conclusory, speculative and improperly 2 invade the realm of expert opinion. Further, this statement is irrelevant. 3 42. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

4 properly authenticated and contains inadmissible hearsay.

5 objectionable as it advances statements that are conclusory, speculative and improperly 6 invade the realm of expert opinion. Further, this statement is irrelevant. 7 43. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

8 properly authenticated and contains inadmissible hearsay.

9 objectionable as it advances statements that are conclusory, speculative and improperly 10 invade the realm of expert opinion. Further, this statement is irrelevant. 11 44. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

12 properly authenticated and contains inadmissible hearsay.

13 objectionable as it advances statements that are conclusory, speculative and improperly 14 invade the realm of expert opinion. Further, this statement is irrelevant. 15 45. ValueOptions objects as this statement contains inadmissible hearsay, is

16 conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 17 46. ValueOptions objects as this statement contains inadmissible hearsay, is

18 conclusory, speculative and irrelevant. 19 47. ValueOptions objects as this statement contains inadmissible hearsay, is

20 conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 21 48. ValueOptions objects as this statement contains inadmissible hearsay, is

22 conclusory, speculative and irrelevant. 23 49. ValueOptions objects as this statement contains inadmissible hearsay, is

24 conclusory, speculative and irrelevant. 25 50. ValueOptions objects as this statement contains inadmissible hearsay, is

26 conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 27 51. ValueOptions objects as this statement contains inadmissible hearsay, is

28 conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 8 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 8 of 10

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52.

ValueOptions objects as this statement relies upon an improperly

2 authenticated document. 3 54. ValueOptions denies this statement to the extent that it limits Dr. Walters'

4 opinion in regard to the necessary assessment of plaintiff to a review of defendant 5 Marshall's assessment. In reaching his conclusion, Dr. Walters also reviewed plaintiff's 6 medical records. [Dkt. 58]. 7 Controverting Statement of Facts 8 1. Plaintiff Shannon Clark filed a motion for leave to file a second amended

9 complaint on August 30, 2004. [Dkt. 48]. 10 2. On September 24, 2004 the court entered a report and recommendation and

11 order striking plaintiff's first amended complaint, filed on August 23, 2003, and accepting 12 plaintiff's second amended complaint as the first amended complaint (hereinafter "FAC"). 13 [Dkt. 48]. 14 3. Plaintiff's only claim against ValueOptions is contained in Count V of the

15 FAC and specifically states "Defendant ValueOptions, Inc. was deliberately indifferent of 16 plaintiff's serious medical needs by having prior knowledge of actions and inactions 17 described in Counts I and Count II and failing to stop said actions from continuing to 18 occur." See FAC. 19 4. The FAC is void of any allegations relating to a policy or custom of

20 ValueOptions that caused Plaintiff's injury. See FAC. 21 5. The FAC is void of any allegations constituting deliberate conduct of

22 ValueOptions in intentionally causing a depravation of federal rights. See FAC. 23 6. The FAC is also void of any allegations that a policy or custom of

24 ValueOptions was a moving force behind the alleged injury. See FAC. 25 7. ValueOptions' employees Karen Marshall and Thomas Crumbley, M.D., a

26 ValueOptions' Psychiatrist, provided the necessary assessment of the Plaintiff's condition 27 and made the appropriate decision that Plaintiff was not eligible for SMI services on August 28 30, 2002 because Plaintiff did not meet diagnostic or functional criteria for the SMI Service 9 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 9 of 10

1 Program. See Affidavit of Robert Walters, Ph.D., attached as Exhibit 1 to ValueOptions' 2 Statement of Facts in Support of Motion for Summary Judgment [Dkt. 58]. 3 4 5 6 7 8 ORIGINAL AND ONE COPY of the 9 foregoing electronically filed this 3 rd day of October, 2005, with: 10 United States District Court 11 401 West Washington Phoenix, Arizona 85003 12 AND COPY of the foregoing mailed 13 this 3 rd day of October, 2005 to: 14 Shannon M. Clark #113372 ASPC-Tucson-Santa Rita 15 P.O. Box 24406 Tucson, AZ 85734-4406 16 Plaintiff pro per 17 18 19 20 21 22 23 24 25 26 27 28 10 Case 2:03-cv-01344-EHC-HCE Document 148 Filed 10/03/2005 Page 10 of 10 /s/ Connie Ahrenberg By: /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant DATED this 3 rd day of October, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.