Shepard v. The Cleveland School District et al

Filing 214

ORDER granting in part and denying in part 159 Motion to Strike; the motion is GRANTED as to the three newspaper articles as well as Shepard's reference to Cowan; the motion is DENIED in all other respects. Signed by District Judge Debra M. Brown on 9/16/19. (jla)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JASMINE SHEPARD

PLAINTIFF

V.

NO. 4:17-CV-91-DMB-JMV

THE CLEVELAND SCHOOL DISTRICT;
STEVEN CRADDOCK, in his individual
capacity; and DR. JACQUELYN
THIGPEN, in her individual and official
capacity

DEFENDANTS

ORDER
Before the Court is the Cleveland School District’s “Motion to Strike.” Doc. #159.
I
Relevant Procedural History
On October 16, 2018, Jasmine Shepard filed numerous documents as exhibits to her
response to the defendants’ motions for summary judgment, including a New York Times article,
a Bolivar Commercial article, and a Washington Post article.1 Because Shepard incorrectly filed
these and other exhibits, the Court ordered her to re-file them. Doc. #169 at 7–8. On December
21, 2018, Shepard re-filed the exhibits,2 including the three newspaper articles. See Docs. #176–
1 (New York Times article); #176-2 (Bolivar Commercial article); #179-2 (Washington Post
article).
On October 29, 2018, the Cleveland School District filed a motion to strike the three
newspaper articles and other matters in Shepard’s summary judgment response and supporting
memorandum brief. Doc. #159. Shepard responded to the motion on November 21, 2018.3 Doc.

1

Docs. #139-1, #139-2, #140-5.

2

Docs. ##176–190.

3

Shepard’s response is untimely. Though she requested an extension until November 20, 2018, see Doc. #162, she
filed nothing that day in response to the motion. The Court subsequently denied her motion for extension as moot.

#163. The School District replied on November 28, 2018. Doc. #164.
II
Discussion
The School District moves to strike from Shepard’s responsive filings (1) the three
newspaper articles; (2) certain quotes attributed to “the school board attorney;” (3) references to
Jacqueline Thigpen as a “turncoat;” and (4) “repeated” references to Cowan v. Cleveland School
District. Doc. #159 at 1–2.
A. Newspaper Articles
The School District moves to strike the three newspaper articles as inadmissible hearsay.
See Doc. #160 at 4. In response, Shepard argues that the Court should take judicial notice of all
three articles, and that the Bolivar Commercial article should be admitted as “trustworthy, relevant
and material ….” Doc. #163 at 3.
1. Judicial notice
Shepard cites Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 645
n.34 (M.D. La. 2015), for the proposition that, pursuant to Federal Rule of Evidence 201(b), a
court “may take judicial notice of public ally-available [sic] documents and transcripts produced
by a state or federal agency which were matters of public records directly relevant to the issue at
hand.” Doc. #163 at 3. Kliebert concerned the admissibility of a bulletin published by the Centers
for Medicare & Medicaid Services, a government agency. See Kliebert, 141 F. Supp. 3d at 611,
645–46.

Shepard does not explain, nor does the Court see, how Kliebert applies to the

admissibility of articles published by non-governmental entities such as The New York Times, The
Washington Post, and The Bolivar Commercial. Under these circumstances, the Court declines to

Doc. #170. This order includes Shepard’s arguments nonetheless since none of the arguments mentioned result in
relief in her favor.

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take judicial notice of the newspaper articles.
2. Hearsay exception
There is no dispute the newspaper articles are hearsay to the extent they are offered for the
truth of the matter asserted. Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005).
Relying on Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 391–92 (5th Cir.
1986), Shepard argues that the Bolivar Commercial article is admissible as “trustworthy, relevant
and material ….” Doc. #163 at 3.
While Shepard’s response does not cite a specific hearsay exception rule, the Court, based
on her argument and authority cited, presumes she seeks admission of the Bolivar Commercial
article under the residual exception to the hearsay rule set forth in Federal Rule of Evidence 807.
Rule 807 provides for the admission of hearsay when (1) “the statement has … circumstantial
guarantees of trustworthiness;” (2) “is offered as evidence of a material fact;” (3) “is more
probative on the point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts;” and (4) admission “will best serve the purposes of [the Federal Rules
of Evidence] and the interests of justice.”
In Dallas County, the court admitted into evidence at trial a 58-year-old newspaper article.
286 F.3d at 390. Though acknowledging that “a newspaper article is hearsay, and in almost all
circumstances is inadmissible,”4 the court explained:
We hold, that in matters of local interest, when the fact in question is of such a
public nature it would be generally known throughout the community, and when
the questioned fact occurred so long ago that the testimony of an eye-witness would
probably be less trustworthy than a contemporary newspaper account, a federal
court … may relax the exclusionary rules to the extent of admitting the newspaper
article in evidence. We do not characterize this newspaper as a ‘business record’,
nor as an ‘ancient document’, nor as any other readily identifiable and happily
tagged species of hearsay exception. It is admissible because it is necessary and
4

286 F.3d at 392 (footnote omitted).

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trustworthy, relevant and material, and its admission is within the trial judge’s
exercise of discretion ….
Id. at 387–98 (emphasis added).
Unlike the newspaper article in Dallas County, the Bolivar Commercial article was
published in 2010, approximately nine years ago. Doc. #176-2 at 1. Nine years is not so long a
period that “the testimony of an eye-witness would probably be less trustworthy than a
contemporary newspaper account.” See 286 F.3d at 397. Without the degree of necessity present
in Dallas County, the Bolivar Commercial article is not “more probative on the point for which it
is offered than any other evidence that the proponent can obtain through reasonable efforts.” See
Fed. R. Evid. 807(a)(3). Therefore, the residual hearsay exception does not apply.
3. Summary
Having rejected all of Shepard’s arguments regarding the three newspaper articles, the
newspaper articles will be stricken.
B. Quoting School Board Attorney
The School District moves to strike “QUOTING THE SCHOOL BOARD ATTORNEY
outside the minutes, a pleading in this case or an oral statement to the Court in this case.” Doc.
#159 at 1. The School District does not provide any citations to the quotes it seeks to strike. It
also fails to offer any explanation or argument as to this item beyond a generalized statement that
“all of this evidence” is inadmissible hearsay. See Doc. #160 at 4; Doc. #164. The Court therefore
declines to strike any such statements.
C. Turncoat Reference
The School District moves to strike Shepard’s reference to Thigpen as a “turncoat,”
representing that such reference appears on page 21 of Shepard’s memorandum in opposition to
its motion for summary judgment. Doc. #159 at 1; Doc. #160 at 5. No such reference appears in

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that document much less on the page the School District specifies. Because the reference does not
exist in that document, the motion to strike will be denied in that regard.5
D. Cowan References
Finally, the School District contends that “[a]rguments by [Shepard] attempting to allege
Cowan [v. Cleveland School District, 2:65-cv-31 (N.D. Miss)] is material to the existence of a
school board policy should be stricken6 as irrelevant and immaterial” because “one constitutional
violation does not make another.”7 Doc. #160 at 4–5. Shepard responds that, pursuant to Federal
Rule of Evidence 201, this Court “may rely on findings that it made in the Cowan case as one of
the issues in Cowan was the district’s failure to provide equal educational opportunities to AfricanAmerican students.” Doc. #163 at 3.
Federal Rule of Evidence 201(b) permits a court to take judicial notice of an “adjudicative
fact” if the fact “is not subject to reasonable dispute because it (1) is generally known within the

5

There is a reference to Thigpen as a turncoat on page 21 of Shepard’s memorandum in opposition to Craddock’s
motion for summary judgment. See Doc. #150 at 21 (“In fact after testifying that H.B. should not have received any
quality points or a unit for the unapproved online Physics course, Thigpen turncoat [sic] and gave H.B. six quality
points for Advanced Physics and one unit for the A she earned in the online Physics course.”). To the extent the
School District intended to request that this reference be stricken, the request would still be denied. The School
District argues that referring to Thigpen as a turncoat is an inappropriate personal attack and “not competent summary
judgment evidence.” Doc. #160 at 5; see Doc. #164 at 5. But, it offers nothing to warrant striking the remark for
those specific reasons beyond stating that “[o]nce the moving party has made an initial showing, the party opposing
the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.”
Doc. #160 at 5 (citing U.S. Fleet Servs. v. City of Fort Worth, 141 F. Supp. 2d 631 (N.D. Tex. 2001)); see Doc. #164
at 5.
6

The School District states in its motion that the references to Cowan are inadmissible hearsay. Doc. #159 at 2.
However, its supporting memorandum does not mention or discuss any hearsay challenge to a Cowan reference. See
Doc. #160 at 4–5. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to … put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997). Thus, any hearsay challenge to a reference to Cowan is deemed waived.
7

The School District does not cite the so called “repeated references” to Cowan it seeks to strike. It points to only
Shepard’s assertion in her memorandum opposing its motion for summary judgment that “CSD had a policy of
providing separate and unequal education to African-American students in its school district.” Doc. #160 at 4 (citing
Doc. #154 at 15). Cowan is not expressly mentioned by Shepard as to this assertion. Even if it was, there does not
appear to be any “repeated references” to Cowan by Shepard since no other reference is mentioned by the School
District.

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trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” “A court may take judicial notice of ‘a
document filed in another court … to establish the fact of such litigation and related filings,’ but
generally cannot take notice of the findings of fact from other proceedings.” Ferguson v. Extraco
Mortg. Co., 264 F. App’x 351, 352 (5th Cir. 2007) (quoting Taylor v. Charter Med. Corp., 162
F.3d 827, 829–30 (5th Cir. 1998)). The findings in Cowan to which Shepard refers are not
“adjudicative facts” because they concern whether the School District failed to provide equal
educational opportunities to its students;8 thus, Shepard does not reference Cowan merely “to
establish the fact of such litigation.” Accordingly, to the extent Shepard’s relies on Cowan for the
reason stated in her response, such will be stricken.
III
Conclusion
The School District’s motion to strike [159] is GRANTED in Part and DENIED in Part.
The motion is GRANTED as to the three newspaper articles as well as Shepard’s reference to
Cowan. The motion is DENIED in all other respects.
SO ORDERED, this 16th day of September, 2019.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

8

See Cowan, 186 F. Supp. 3d at 607.

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