Aaron v. Keith et al

Filing 78

MEMORANDUM ORDER granting 72 Motion to Supplement; granting 74 Motion to Strike. Signed by Magistrate Judge Joseph H L Perez-Montes on 2/14/2017. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ANDRAE D. AARON,
Plaintiff

CIVIL ACTION NO. 1:13-CV-02867;
SEC. P

VERSUS

CHIEF JUDGE DRELL

TIM KEITH, ET AL.,
Defendants

c

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is Plaintiff’s “Motion to Supplement Objections to Defendant’s
Motion for Summary Judgment” (Doc. 72) and Defendant’s Motion to Strike (Doc. 74).
Plaintiff had previously filed an initial Opposition to Defendants’ Motion for
Summary Judgment but, in that motion, also asked to file a supplemental opposition
once he received mail with additional documentation. (See Doc. 57).1 The motion was
granted, and Plaintiff was given until December 16, 2016 to file his supplemental
motion. (Doc. 59). Aaron submitted his supplemental motion on December 23, 2016.
As Aaron had received prior permission to file the supplemental motion, the motion
will be GRANTED. (Doc. 72).
Following Plaintiff’s submission of his amended opposition to Defendants’
Motion for Summary Judgment, Defendants filed a Motion to Strike. (Doc. 74). A
previous Motion to Strike filed by Defendants was granted and all references to the
Baton Rouge Advocate article entitled “Reporter Exposes Flaws of Prison” (“Advocate

Despite the document being Plaintiff’s first brief in opposition, due to the caption of the pleading,
Aaron’s attached memorandum was docketed as a Supplemental Memorandum. (Doc. 61.)
1

article”) were stricken from the record as inadmissible hearsay. In addition to relying
on the Advocate article, Plaintiff also relies on a Mother Jones article written by
Shane Bauer entitled “My Four Months as a Private Prison Guard” (“Mother Jones
article”) in support of his arguments.
Newspaper articles do not constitute competent summary judgment evidence
to prove the truth of the facts they report because they are inadmissible hearsay.
Cano v. Bexar County, Texas, 280 Fed. Appx. 404, 406 (5th Cir. 2008) (citing Roberts
v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005)); see also James v. Texas
Collin County, 535 F.3d 365, 374 (5th Cir. 2008). Authors of newspaper articles
typically convey information collected from other sources and rarely have personal
knowledge of the facts reported. Anderson v. Dallas County, Texas, Civ. No. 3:05-CV1248-G, 2007 WL 1148994, at *5 (N.D. Tex. April 18, 2007). Furthermore, “news
reporters often make inferences and hypothesize in their articles; the inclusion of
such speculation also makes the articles improper for evidentiary consideration.” Id.;
see also Fridman v. City of New York, 183 F. Supp. 2d 642, 646 n. 2 (S.D.NY. 2002)
(newspaper article and a transcript post-dating the events underlying the action by
a year or more, where the out-of-court speakers were neither under oath nor making
admissions against their interests, were hearsay testimony and thus inadmissible on
a motion for summary judgment). As the Court noted in its previous Memorandum
Order, Plaintiff is attempting to introduce the Advocate article to prove the truth of
the facts that it reports, and the Court cannot identify a hearsay exception that would
apply.

2

Similarly, Plaintiff attempts to introduce the Mother Jones article to prove the
truth of the facts that it reports. Plaintiff argues that Defendants have not refuted
that Shane Bauer was employed at Winn Correctional Center (“WCC”) and therefore
did not have personal knowledge. Plaintiff argues that since Bauer was a security
guard at WCC, he had firsthand knowledge of the violations that occurred during his
time there. Plaintiff therefore states that hearsay exceptions apply, namely F.R.E.
803 (1), (2), (3), (5), and (6).2 However, Plaintiff does not state how those hearsay
applications apply, and the Mother Jones article suffers from the same evidentiary
deficiencies as the Advocate Article.
The case law is consistent: newspaper articles are hearsay and do not
constitute competent summary judgment evidence.

F.R.E. 803(1) provides an exception for hearsay statements “describing an event or condition, made
while or immediately after the declarant perceived it.” Because of the almost simultaneous events,
there is almost no “likelihood of [a] deliberate or conscious misrepresentation.” Rock v. Huffco Gas &
Oil Co., Inc., 922 F.2d 272, 280 (5th Cir. 1991). According to the Mother Jones article, Bauer worked
at WCC in November 2014 until March 2015. The article was published in Mother Jones’ July/August
2016 issue. Due to the large amount of time that passed between Bauer’s having worked at WCC and
having written and published the article, F.R.E. 803(1) does not apply. See id.
2

Similarly, F.R.E. 803(2) applies to a “statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.” As noted above, more than a year
passed between Bauer working at WCC and the article having been published. This hearsay exception
is inapplicable.
F.R.E. 803(3) applies to a then-existing mental, emotional, or physical condition, “but not including a
statement of memory or belief to prove the fact remembered or believed [. . . ]” Aaron is using the
article to prove the facts remembered, and has not suggested otherwise.
Under F.R.E. 803(5), a recorded recollection is admissible if the witness once had knowledge about the
matter, but now cannot recall well enough to testify fully and accurately. Aaron has made no
suggestion that Bauer can no longer recall the events well enough to testify fully and accurately.
Additionally, “newspaper articles are not records ‘kept in the course of a regularly conducted business
activity’ within the meaning of Rule 803(6).” Anderson v. Dallas County, Texas, Civ. No. 3:05-CV-1248G, 2007 WL 1148994, at *5 (N.D. Tex. Apr. 18, 2007).

3

Accordingly, IT IS ORDERED that Aaron’s Motion to Supplement is
GRANTED. (Doc. 72).
IT IS FURTHER ORDERED that Defendants’ Motion to Strike (Doc. 74) is
GRANTED. The Mother Jones article entitled “My Four Months as a Private Prison
Guard” and the Baton Rouge Advocate article entitled “Reporter Exposes Flaws of
Prison” and any and all references to it from Plaintiff’s Supplemental Objections to
Defendants’ Motion for Summary Judgment (Doc. 72) are hereby STRICKEN from
the record.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
14th
_______ day of February, 2017.
______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

4