Cook v. Perkins et al

Filing 59

RULING granting in part 27 Motion to Strike Exhibits From Plaintiff's Opposition to Defendants Motions for Summary Judgment. The motion is granted as to Exhibit B-2. The motion is denied as to Exhibits A-1, A-2, and C-1. The motion is also denied as to Exhibit A-3, to the extent the state court pleadings submitted contain facts that are not hearsay. Signed by Magistrate Judge Stephen C. Riedlinger on 10/9/2013. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

STEPHEN P. COOK
CIVIL ACTION
VERSUS
NUMBER 12-258-SCR
LIVINGSTON PARISH DEPUTY
DENNY PERKINS, ET AL
RULING ON MOTION TO STRIKE EXHIBITS FROM
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Before the court is the Motion to Strike Exhibits From
Plaintiff’s Opposition to Defendants’ Motions for Summary Judgment.
Plaintiff filed an opposition.1

Record document number 27.

Defendants moved to strike the following exhibits submitted by
the

plaintiff

motions:
that this

with

his

opposition

A-1, A-2, A-3, B-2 and C-1.

to

their

summary

judgment

Defendants generally argued

evidence is inadmissible on various grounds, and cannot

be considered in deciding the summary judgment motions.
Each exhibit is addressed below, and the motion is resolved as
follows.
Exhibit A-1 and A-2, and Exhibit C-1
Plaintiff Exhibit A-1 is an April 15, 2002 letter from the
Workforce

Med

Center,

LLC

polygraph and drug testing.

related

to

defendant

Dy.

Perkins’

Plaintiff Exhibit A-2 is another

document related to Perkins, entitled “Character References” with

1

Record document number 57.

the date of March 27, 2002 at the bottom.

Defendants moved to

strike

not

these

exhibits

because

they

are

authenticated.

Defendants pointed out that the plaintiff has neither provided an
affidavit, nor identified a witness in his pretrial order or during
discovery who has knowledge of the documents and can testify that
they are what they purport to be.
Plaintiff Exhibit C-1 is a group of the plaintiff’s medical
records from LSU Earl K. Long Medical Center (”EKL”).

Defendants

moved to exclude them from consideration because they are not
certified or authenticated.

Defendants argued the plaintiff has

not provided anything to authenticate these records.
Plaintiff opposed the defendants’ effort to exclude these
exhibits.

Plaintiff

argued

that

the

exhibits

are

self-

authenticating under Federal Rules of Evidence, Rule 902(2)(A) and
(B) and 902(4)(A) and (B). Plaintiff also argued that Exhibits A-1
and A-2 came from defendant Dy. Perkins’ official personnel folder
and were obtained through discovery, and that the Livingston Parish
Sheriff’s Office is the custodian of these public records under
Louisiana public records law LSA-R.S. 44:1. Plaintiff made similar
arguments with regard to Exhibit C-1.

He argued that his medical

records, which are from a hospital operated by the state, are selfauthenticating.

Plaintiff stated that he signed a consent for the

defendants to obtain his medical records from the hospital, and it
is untenable to believe that counsel for the defendants did not

2

subsequently obtain his medical records from EKL.
plaintiff stated in his affidavit that

Also, the

“all of the attachment and

Exhibits [are] true and correct copies of the originals ascertained
through Discovery.”2
Under

Federal

Rule

of

Evidence

901(a),

in

order

to

authenticate or identify an item of evidence the party offering the
evidence must produce evidence sufficient to support a finding that
the item is what the party claims it is.

It is within the court’s

discretion

has

to

exclude

evidence

that

not

been

properly

authenticated. Rule 901(a) requires sufficient evidence to support
a finding, and does not require conclusive proof of authenticity.
McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 562 (5th Cir.
1998); Cramer v. NEC Corp. of America, 496 Fed.Appx. 461 (5th Cir.
2012).
Plaintiff has not established that the evidence is selfauthenticating under Rule 902.

Plaintiff has provided sufficient

information and evidence that Exhibits A-1 and A-2 are authentic.
Plaintiff stated that Exhibits A-1 and A-2 came from defendant Dy.
Perkins’ personnel folder and were obtained through discovery.

It

is reasonable to conclude that the defendants would have produced
these documents to the plaintiff in response to a discovery
request. There is no suggestion from the defendants that the
plaintiff

2

acquired

these

documents

in

some

other

manner.

Record document number 22-4, Affidavit of Stephen P. Cook.
3

Defendant’s motion to strike Exhibits A-1 and A-2 is denied.
As to Exhibit C-1, the plaintiff asserted that he signed a
consent for the defendants to obtain his medical records.

It is

not clear from the plaintiff’s opposition memorandum whether the
medical records which comprise Exhibit C-1 are copies of medical
records produced to the plaintiff after they were obtained from EKL
by the defendants.

Nevertheless, the defendants do not dispute

that the exhibit consists of accurate copies of these medical
records.
these

Defendants’ argument that the plaintiff cannot submit

medical

unpersuasive.

records

in

an

admissible

form

at

trial

is

There is no reason why the plaintiff cannot obtain

certified copies of these medical records from ELK. Therefore, the
defendants’ motion to strike Exhibit C-1 is denied.
Exhibit A-3
Plaintiff Exhibit A-3 consists of numerous documents from the
plaintiff’s state criminal court proceedings, namely court minute
entries, motions and briefs filed in the criminal case. Defendants
argued that the motions and briefs included in the exhibit are
filled with hearsay, that is, factual allegations and arguments
that are inadmissible hearsay and do not meet any of the hearsay
exceptions.

Therefore, defendants argued, the plaintiff cannot

rely on this hearsay evidence to support his claims.3

3

Defendants’ arguments focused only on the motions and briefs
included in Exhibit A-3. Therefore, the motion is not interpreted
(continued...)
4

A review of the state court pleadings submitted by the
plaintiff shows that several of the motions were accompanied by
sworn affidavits in which the plaintiff attested to the truth and
correctness of the allegations contained in them.4

Although the

motions in large part merely contain legal arguments and questions,
the Motion to Suppress Evidence contains the plaintiff’s version of
what took place when he was arrested and defendant Dy. Perkins took
him into the bedroom of the residence being searched.

Plaintiff

had personal knowledge of that event and signed an affidavit
swearing to the truth and correctness of the facts stated therein.
Therefore, they can be considered in connection with the summary
judgment motions.

To this extent the defendants’ motion to strike

Exhibit A-3 is denied.
Exhibit B-2
Plaintiff Exhibit B-2 is an article that appears to be printed
from a website and the source indicated on the document is the
Orange County Register.5

Defendants argued that this type of

3

(...continued)
as an attempt to strike the state court minute entries included in
Exhibit A-3.
4

The pleadings with sworn affidavits attached are:
(1)
Motion for Bill of Particulars (record document number 22-4, pp.
29-32; (2) Motion in Arrest of Judge (record document number 22-4,
pp. 23-25; (3) Motion to Suppress Evidence (record document number
22-4, pp. 10-16.
5

The title is “ON FREEDOM’S ‘THIN BLUE LINE’” and the
publication date is September 19, 1999. Record document number 22(continued...)
5

article

is

classic

inadmissible

hearsay,

it

contains

hearsay

statements, and no hearsay exceptions are applicable.
Newspaper articles are not proper summary judgment evidence to
prove the truth of the facts that they report because they are
inadmissible hearsay.

James v. Texas Collin County, 535 F.3d 365,

374 (5th Cir. 2008).

Therefore, the defendants’ motion to strike

this exhibit is granted.6
Conclusion
Accordingly, the defendants’ Motion to Strike Exhibits From
Plaintiff’s Opposition to Defendants’ Motions for Summary Judgment
is granted in part.

The motion is granted as to Exhibit B-2.

motion is denied as to Exhibits A-1, A-2, and C-1.

The

The motion is

also denied as to Exhibit A-3, to the extent the state court
pleadings submitted contain facts that are not hearsay.
Baton Rouge, Louisiana, October 9, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

5

(...continued)
4, p. 40.
6

It appears from the plaintiff’s memorandum that the
plaintiff now does not oppose the exclusion of this exhibit.
Record document number 57, pp. 6-7.
6