Breach v. Prison Health Services, Inc. et al (INMATE1)

Filing 821

MEMORANDUM OPINION AND ORDER that plaintiff's 803 , 812 and 813 MOTIONS to Strike filed on July 22, 2009 are DENIED AS MOOT. Signed by Hon. Chief Judge Mark E. Fuller on 8/12/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R C E L L U S BREACH, #203767, P la in tif f , v. P R IS O N HEALTH SERVICES, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:06-cv-1133-MEF

M E M O R A N D U M OPINION AND ORDER T h e issue in this case is whether Alabama Department of Corrections ("ADOC") d e f e n d a n ts were deliberately indifferent to providing Plaintiff medical care for a hernia. Before the Court are several pending motions to strike, including: (1) Plaintiff's Motion to Strike Inadmissible Statements (Doc. #803), filed on July 22, 2009; (2) Plaintiff's M o tio n to Strike Inadmissible Statements (Doc. #812), filed on July 22, 2009; (3) P la in tif f 's Motion to Strike Inadmissible Statements (Doc. #813), filed on July 22, 2009. The Court will discuss Plaintiff's motions together. In his motions, Plaintiff seeks to strike statements contained four documents: S p e c ia l Report to Inmate Complaint (Doc. #25), Supplemental Special Report (Doc. #86), S p e c ia l Report and Answer to Amendment to Complaint (Doc. #144), and Response to M o tio n to Require Disclosure (Doc. #418). Plaintiff argues the Court should strike c e rta in statements because they contain hearsay, lack personal knowledge, and are " c o m p le te ly untrustworthy." Doc. #803, pg. 1. Plaintiff argues that certain statements in

these documents should be struck for summary judgment purposes. Notably, however, D e f e n d a n ts have not filed a motion for summary judgment. Defendants have filed special re p o rts , which the Magistrate Judge may construe as motions for summary judgment. See D o c s . #25, 86, 114, 144, 361, 735. Affidavit and declarations submitted either in support of or in opposition to a m o tio n for summary judgment must comply with the requirements of Rule 56(e) of the F e d e ra l Rules of Civil Procedure. Rule 56(e) makes it plain that affidavits or declarations s u b m itte d in support of or opposition to a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be a d m is s ib le in evidence, and shall affirmatively show that the affiant is c o m p e te n t to testify to the matters stated therein. Fed. R. Civ. P. 56(e) (emphasis added). The requirements of Rule 56 make it plain that a f f id a v its which set forth conclusory arguments rather than statements of fact based on p e rs o n a l knowledge are improper. See, e.g., Thomas v. Ala. Council on Human R e la tio n s, Inc., 248 F. Supp. 2d 1105, 1112 (M.D. Ala. 2003); Story v. Sunshine Foliage W o r ld , Inc., 120 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000). Accord, Leigh v. Warner B ro s ., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). Sworn statements which fail to meet th e standards set forth in Rule 56(e) may be subject to a motion to strike. See, e.g., T h o m a s , 248 F. Supp. 2d at 1112; Givhan v. Electronic Eng'rs, Inc., 4 F. Supp. 2d 1331, 1 3 3 4 (M.D. Ala. 1998). However, the Court need not strike the entire affidavit, rather it m a y strike or disregard the improper portions and consider the remainder of the

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testimony or statement. Id. at p. 1334 n.2. Should the pending special reports be c o n s tru e d as motions for summary judgment, this Court will exercise its discretion to d is re g a rd any improper portions of the challenged affidavit or declarations when c o n s id e rin g those motions. Accordingly, the aforementioned motions are due to be d e n ie d as moot. C O N C L U S IO N F o r the reasons set forth in the Memorandum Opinion and Order, it is hereby O R D E R E D that (1 ) Plaintiff's Motion to Strike (Doc. #803) filed on July 22, 2009 is DENIED AS M OOT; (2) Plaintiff's Motion to Strike (Doc. #812) filed on July 22, 2009 is DENIED AS MOOT; and (3) Plaintiff's Motion to Strike (Doc. #813) filed on July 22, 2009 is DENIED AS M OOT. DONE this the 12th day of August, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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