Collier v. Adams County, Mississippi et al
Filing
50
ORDER denying 43 Motion to Strike ; denying 44 Motion to Strike ; denying 45 Motion to Strike ; allowing plaintiff to file a surrebuttal memorandum within ten (10) days from the date of entry of this Order. Signed by Honorable David C. Bramlette, III on 6/9/2014 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CAMILLA COLLIER, individually,
as the Wrongful Death Heir and
Beneficiary of Brandon Diaz,
Deceased, as the Administratrix
of the Estate of Brandon Diaz,
Deceased
VS.
PLAINTIFF
CIVIL ACTION NO. 5:12-cv-133(DCB)(MTP)
ADAMS COUNTY, MISSISSIPPI;
CHARLES R. “CHUCK” MAYFIELD, JR.,
Sheriff of Adams County, Mississippi,
in his individual and official capacities;
and UNKNOWN DEPUTY SHERIFFS JOHN DOES 1-10
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Plaintiff’s motions
(docket
entries
43,
44
and
45)
to
strike
the
affidavits
of
Assistant Jail Administrator Gerald Cornwell, Jail Administrator
Charles Harrigill, and Defendant Sheriff Charles R. (“Chuck”)
Mayfield, which affidavits are attached as exhibits to Defendant
Mayfield’s Rebuttal Memorandum.
Having carefully considered the
Plaintiff’s motions and the Defendant’s responses, the memoranda
of the parties and the applicable law, and being fully advised in
the premises, the Court finds as follows:
Sheriff Mayfield filed a motion for summary judgment based
on qualified immunity, and a memorandum brief in support thereof,
to which a responsive brief was filed by the Plaintiff.
Sheriff
Mayfield then filed a rebuttal brief, and in support thereof
submitted the affidavits of Cornwell and Harrigill, as well as
his own.
(Docket entry 42 and Exhibits L, M and N).
The
Plaintiff moves to strike each of the three affidavits, claiming
they contain hearsay testimony and are not based on personal
knowledge.
The Plaintiff also objects on grounds that she was
not given a chance to respond to the affidavits, and that the
Defendant violated the Local Rules by submitting the affidavits
along with the rebuttal.
Local Rules
The
Plaintiff
claims
the
affidavits
should
be
stricken
because the Local Rules state that all affidavits supporting a
motion for summary judgment are required to be submitted with the
original motion and not with the rebuttal.
misstatement of the rules.
However, this is a
Local Rule 7(b)(2) actually requires
that all affidavits be filed as exhibits to any motion, response,
or rebuttal to which they relate.
Uniform Local Rule 7(b)(2).
Sheriff Mayfield references the affidavits in his rebuttal, and
attached the affidavits as exhibits.
The affidavits relate to
Sheriff Mayfield’s rebuttal, and are in compliance with the Local
Rules.
Personal Knowledge
The
Plaintiff
claims
that
all
three
affidavits
statements that are not based on personal knowledge.
contain
The Court
finds, however, that the statements concern the procedure and
policy
at
the
Adams
County
Jail
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when
an
inmate
needs
a
prescription
filled.
administrators
of
The
the
affiants
Adams
County
are
the
Jail,
sheriff
each
of
personal knowledge of jail procedures and policies.
and
two
whom
has
Furthermore,
the affiants swear in their affidavits that their statements are
based on personal knowledge.
See DIRECT TV, Inc. v. Budden, 420
F.3d 521, 530 (5th Cir. 2005)(noting that the Ninth Circuit has
“found it proper in the summary judgment context for district
courts
to
rely
on
affidavits
where
the
affiants’
‘personal
knowledge and competence to testify are reasonably inferred from
their positions and the nature of their participation in the
matters
which
they
swore.’”)(quoting
Barthelemy
v.
Air
Lines
Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990)).
Affidavit of Assistant Jail Administrator Cornwell
The
Plaintiff
objects
on
grounds
that
Deputy
Cornwell’s
affidavit contains inadmissible hearsay testimony; specifically,
the
statements
training
from
“Newly
more
hired
jailers
experienced
also
jailers,”
received
and
on-the-job
“These
more
experienced co-workers demonstrated the appropriate way to, among
other things, handle sick calls, oral requests for medical care
and
obtain
and
entry 42-3, ¶3).
administer
prescription
medication.”
(Docket
Hearsay is “a statement that (1) the declarant
does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the
matter
asserted
in
the
statement.”
3
Fed.R.Evid.
801.
The
Plaintiff does not offer any argument in support of the claim
that Deputy Cornwell’s statements are hearsay.
The Court finds
they are not hearsay because the affiant is not offering an out
of court statement, but simply his understanding of the policy
and procedure that was in place for an inmate needing to refill
prescription medication at the Adams County Jail.
The Plaintiff also claims that Deputy Cornwell’s statement,
“Sheriff Mayfield, Former Jail Administrator Harrigill and myself
have made it very clear that Jailers must attend to inmates[’]
medical needs, including making sure that they receive prescribed
medication,” contains inadmissible hearsay testimony.
entry 45, ¶4).
hearsay
(Docket
Although this statement does technically contain
testimony,
the
issue
is
moot
because
both
Sheriff
Mayfield and Deputy Harrigill have provided the same testimony in
their own affidavits.
See Robinson v. Mississippi, No. 2:07-cv-
120(M)(A), 2008 WL 2954946 at *7 (N.D. Miss. July 29, 2008)
(permitting
hearsay
established
by
Plaintiff’s
motion
testimony
direct
testimony
will
because
of
therefore
the
others
be
at
denied
statement
was
trial).
The
as
to
Deputy
Cornwell’s affidavit.
Affidavit of Sheriff Mayfield
The Plaintiff also claims that paragraphs six through eleven
of
Sheriff
Mayfield’s
affidavit
contain
inadmissible
hearsay
testimony, but she does not provide any argument to support this
4
claim.
The statements to which the Plaintiff objects pertain to
the procedure and policy in place for refilling the medications
of inmates.
The Plaintiff specifically objects to “statements as
to what jailers and others told Sheriff Mayfield.” (docket entry
44, ¶4); however, the statements in question only explain jail
procedure; they do not offer out of court statements made by the
jailers or others.
The Sheriff is simply explaining the process.
Therefore, the Court finds that the affidavit of Sheriff Mayfield
does not contain hearsay evidence and the Plaintiff’s motion to
strike the affidavit will be denied.
Affidavit of Jail Administrator Harrigill
The Plaintiff also claims that Deputy Harrigill’s affidavit
contains inadmissible hearsay statements.
To the extent that
Deputy Harrigill is simply explaining the procedure of refilling
medication in the Adams County Jail, the affidavit does not
contain hearsay testimony.
In paragraph four of Harrigill’s
affidavit, he states, “Sheriff Mayfield also required jailers to
complete
officers.”
the
state
certification
(Docket entry 42-1, ¶4).
process
for
corrections
The Plaintiff claims that
this statement is hearsay; however, the issue is moot because
Sheriff Mayfield has previously offered the same testimony.
See
Robinson, 2008 WL 2954946 at *7 (permitting hearsay testimony
because the statement was established by direct testimony of
5
others at trial).
In paragraph five of his affidavit, Harrigill
testifies as follows:
Sheriff Mayfield, Assistant Jail Administrator
Cornwell and myself all made it very clear that Jailers
must attend to inmate[’] medical needs, including
making
sure
that
inmates
received
prescribed
medication. This includes medication prescribed by the
Jail Nurse Practitioner and outside physicians.
(Docket entry 42-1, ¶5).
Again, the statement is supported by
the testimony of Deputy Cornwell and Sheriff Mayfield, rendering
the issue moot.
Id.
Opportunity to Submit Surrebuttal
The Plaintiff notes in her motion to strike that she did not
have an opportunity to respond to the affidavits, and claims that
some
statements
in
the
affidavits
testimony of other witnesses.
the
Plaintiff
the
opportunity
conflict
with
deposition
The Court shall therefore afford
to
respond
to
the
Defendant’s
rebuttal memorandum within ten days from the filing of this
Order.
Accordingly,
IT IS HEREBY ORDERED THAT Plaintiff’s motion to strike the
affidavit of Assistant Jail Administrator Cornwell (docket entry
45) is DENIED;
FURTHER
ORDERED
THAT
Plaintiff’s
motion
to
strike
the
affidavit of Jail Administrator Harrigill (docket entry 43) is
DENIED;
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FURTHER
ORDERED
THAT
Plaintiff’s
motion
to
strike
the
affidavit of Sheriff Mayfield (docket entry 44) is DENIED;
FURTHER ORDERED THAT the Plaintiff may file a surrebuttal to
the
Defendant’s
rebuttal
brief
and
supplemental
affidavits,
within ten (10) days from the date of entry of this Memorandum
Opinion and Order.
SO ORDERED, this the 9th day of June, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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