Usrey v. Deyott et al
Filing
74
ORDER rejecting 72 Findings and Recommendations; denying, subject to renewal, 46 Motion for Summary Judgment. Defendants shall have sixty days from the issuance of this order to conduct additional discovery in this case. A motion for summary judgment or Proposed Final Pretrial Order shall be filed within ninety days of the issuance of this order. Signed by Judge Dana L. Christensen on 3/3/2014. Mailed to Usrey. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
RICKY JOE USREY,
MAR 0 3 201~
CktltC, u. S District Court
Olstrict Of Montana
.
Missoula
CV 12-92-H-DLC-RKS
Plaintiff,
ORDER
vs.
DENISE DEYOTT and MIKE
FERRITER,
Defendants.
United States Magistrate Judge Keith Strong issued Findings and
Recommendations granting Defendants Denise Deyott's and Mike Ferriter's
Motion for Summary Judgment on January 24,2014. (Doc. 72.) Usrey timely
filed objections and is therefore entitled to de novo review of the specified
findings and recommendations to which he objects. 28 U.S.C. § 636(b)(1). The
portions of the findings and recommendations not specifically objected to will be
reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court has a "duty to construe pro
se pleadings liberally, especially when filed by prisoners." Shakur v. Schriro, 514
F .3d 878, 892 (9th Cir. 2008) (citations omitted). Because new evidence in the
form of affidavits was submitted by Plaintiff with his objections to the findings
and recommendations, the recommendations must be rejected and Defendants'
motion will be denied subject to renewal. Because the parties are familiar with the
factual and procedural background of this case, it will be repeated only as
necessary to provide context.
Usrey's Complaint alleges violations of his right to receive mail pursuant to
the First and Fourteenth Amendments to the United States Constitution. In
particular, Usrey alleges Defendants improperly confiscated and destroyed a
number of personal greeting cards, as well as a ten dollar money order. Usrey's
due process claims and the mailroom staff defendants were dismissed on March
21,2013. Defendants Deyott and Ferriter filed Answers on February 8, 2013 and
May 24,2013 respectively. Following discovery, Defendants filed their Motion
for Summary Judgment on August 12,2013. Usrey filed his response to the
motion on August 30,2013.
In support of his response, Usrey filed a personal affidavit and an affidavit
of his prison cellmate, James Ball. In his own affidavit, Usrey referenced some
purported difficulty in obtaining affidavits of other intended witnesses; otherwise,
both Usrey's and Ball's affidavits were largely conclusory. In part because the
affidavits did not include testimony based on personal knowledge, and in part
because Usrey failed to provide further witness testimony, Judge Strong
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recommended granting Defendants' Motion for Summary Judgment on January
24,2014.
Usrey filed objections to Judge Strong's findings and recommendations on
February 5, 2014. Usrey's primary objection centers on his allegation that
Defendant Deyott and other prison mailroom staff, in addition to destroying the
greeting cards and money order in question, also failed to mail his affidavits in
support of his response to Defendants' Motion for Summary Judgment to the
Court in August 2013. Usrey now includes with his objections three affidavits,
which include some information that was not available to Judge Strong.
The three affidavits contain testimony of Usrey, Ball, and fellow inmate
Tony Evans. Usrey's affidavit alleges that in mid-December 2012, two prison
officers, Relief Sgt. Johnson and Unit Manager Michele Steyh, told him they had
spoken to Defendant Deyott and Deyott claimed to have destroyed the cards and
money order at issue. (Doc. 73-2 at 5). Evans's affidavit alleges he heard this
conversation between the officers and Usrey, and that the officers did indeed state
Deyott destroyed the items. (Doc. 73-2 at 2-3.) Ball's affidavit alleges not only
that he overheard the December 2012 conversation referenced by Usrey and
Evans, but that he also personally "heard and saw Denise Deyott say the
following: Inmate Usrey, that retard sued me, well he can wine [sic] all he wants
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about his cards and money order, as I personally, with the help of my staff,
destroyed them, and I do what I want, and there isn't anything anyone can do
about it." (Doc. 73-2 at 11-12.) Notably, neither the affidavits Usrey did submit
alongside his response to Defendants' Motion for Summary Judgment, nor the
response arguments themselves, mentioned these alleged incidents, despite being
filed over eight months after the incidents supposedly occurred.
The Court will first consider whether the affidavits Usrey submitted with his
objections can be taken into account In reviewing Judge Strong's findings and
recommendations. It is within the discretion of the court whether to entertain
evidence first offered by a party alongside its objections to a magistrate judge's
findings and recommendations, but the court "must actually exercise its
discretion" and may not dismiss the evidence out of hand. Brown v. Roe, 279 F.3d
742, 744 (9th Cir. 2002). However, under "certain circumstances a district court
abuses its discretion when it fails to consider new arguments or evidence proffered
by a pro se [litigant] ... in objecting to a magistrate judge's" findings and
recommendations. Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013). In
particular, where a "a pro se plaintiff, ignorant of the law, offer[s] crucial facts as
soon as he underst[ands] what [is] necessary to prevent summary judgment against
him," failure to consider such objection-stage evidence constitutes an abuse of
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discretion. Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004). Usrey clearly
understands the nature of the evidence he must provide to defeat Defendants'
Motion for Summary Judgment, and his newly submitted affidavits do contain
facts material to his allegations.
Where a litigant's affidavit contradicts his prior deposition testimony, a
court may properly disregard the affidavit as it pertains to a pending motion for
summary judgment. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262,266 (9th Cir.
1991) ("[t]he general rule in the Ninth Circuit is that a party cannot create an issue
of fact by an affidavit contradicting his prior deposition testimony"). The so
called "sham affidavit rule" prevents a party from creating a fact issue by simply
declaring facts contrary to those previously declared. Yeager v. Bowlin, 693 F.3d
1076, 1080 (9th Cir. 2012) (citations omitted). The rule "should be applied with
caution because it is in tension with the principle that the court is not to make
credibility determinations when granting or denying summary judgment." Id.
(citations omitted). Employment ofthe rule requires that a district court "make a
factual determination that the contradiction is a sham, and the inconsistency
between a party's deposition testimony and subsequent affidavit must be clear and
unambiguous to justify striking the affidavit." Id. (citations omitted).
A "district court may find a declaration to be a sham when it contains facts
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that the affiant previously testified he could not remember," or where "a
deponent's memory could [not] credibly have been refreshed by subsequent events,
including discussions with others or his review of documents, record, or papers."
Id. at 1080-1081. However, "newly-remembered facts, or new facts, accompanied
by a reasonable explanation, should not ordinarily lead to the striking of a
declaration as a sham." Id. at 1081; See Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795, 806-807 (1999) ("a party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by contradicting his or her own
previous sworn statement ... without explaining the contradiction or attempting to
resolve the disparity").
Though Usrey's and Ball's objection-stage affidavits contain previously
undisclosed factual statements, questionable by virtue of their timing and
remarkably salient content, this Court will not disregard either declaration as a
"sham" at this time. Neither Usrey nor Ball directly contradict their own previous
statements. While neither witness explains how his memory could have been so
clearly refreshed in the months between Usrey's response to Defendants' Motion
for Summary Judgment and his instant objections, Usrey does claim that
Defendants are the reason this information was not disclosed sooner. This Court
will neither credit one version of events over another nor make determinations as
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to the credibility of any witness at this time.
Having determined the three affidavits submitted with Usrey's objections
can be considered in reviewing Judge Strong's findings and recommendations, the
Court turns to whether the information contained in those affidavits satisfies Rule
56 of the Federal Rules of Civil Procedure. "An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); Orr v. Bank
ofAm., 285 F.3d 764, 773 (9th Cir. 2002) ("[a] trial court can only consider
admissible evidence in ruling on a motion for summary judgment").
At summary judgment, the Court may consider hearsay evidence contained
in an affidavit only if that evidence may be presented in an admissible form at
trial. Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). "Hearsay within
hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule." Fed. R. Evid. 805. For
example, where one portion of a hearsay-within-hearsay statement is admissible as
a statement of a party opponent under Rule 801 (d)(2)(A), but the second portion of
the statement is inadmissible, the entire hearsay-within-hearsay statement is
consequently inadmissible. See Glaze v. Byrd, 721 F.3d 528, 532-533 (8th Cir.
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2013) (Rule 805 precluded § 1983 plaintiffs cellmate from testifying about a
conversation with prison guard in which prison guard recounted lieutenant's
statement).
This Court will consider neither Usrey's nor Evans's instant affidavits in its
review of Judge Strong's findings and recommendations, but will consider Ball's
affidavit. Both Usrey and Evans claim to have overheard prison officials relaying
an alleged statement of Defendant Deyott. These constitute hearsay-within
hearsay statements where the overlying hearsay testimony, Le. what Usrey and
Evans overheard, is inadmissible. Ball's testimony is of a different character
however - he claims to have personally overheard Defendant Deyott make the
statements contained in his affidavit. His testimony is admissible under Rule
801 (d)(2)(A), and will be considered in reviewing the findings and
recommendations.
Rule 56(a) provides for summary judgment only if there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. An issue is "genuine" only if there is a sufficient evidentiary basis on which
a reasonable fact finder could find for the nonmoving party, and a dispute is
"material" only if it could affect the outcome of the suit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On summary
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judgment, this Court must view the evidence presented in the light most favorable
to the non-moving party. In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008). The
Court should not weigh the evidence or attempt to determine truths, but should
instead determine whether there is a genuine issue for trial. Anderson, 477 U.S. at
249.
The credibility of Ball's affidavit aside, its contents present an issue of fact
which precludes summary judgment in this case at this time. The issue is genuine
insofar as it represents Ball's personal knowledge of Defendant Deyott's purported
statements and it could possibly form the basis for a reasonable fact finder to find
in favor of Usrey on his claims that Deyott tampered with his mail. The issue is
material for similar reasons
proof at trial that Defendant Deyott admitted to
destroying the items in question could affect the outcome of Usrey's case.
As the information contained in Usrey's affidavits has only recently come to
light, Defendants are entitled to conduct additional discovery in order to respond
to it. "Rule 26 vests the trial judge with broad discretion to tailor discovery
narrowly and to dictate the sequence of discovery." Crawford-El v. Britton, 523
U.S. 574, 598 (1998). Defendants will be given sixty days to conduct additional
discovery into the issues raised by Ball's affidavit. If Defendants wish to renew
their motion for summary judgment following this additional discovery period, the
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motion must be filed within ninety days ofthe issuance of this order, and
Plaintiff s response shall comply with Local Rule 7. If no such motion is filed,
defense counsel shall assume responsibility for convening a conference of all
parties to prepare a Proposed Final Pretrial Order, which shall be filed within
ninety days of the issuance of this order. The Court will then set a final pretrial
conference and trial date.
Finally, for the benefit of the parties, the Court notes that this case may be
appropriate for consideration by a settlement master. The parties may file a joint
motion for a settlement conference if both parties agree that such a course of
action would be appropriate in this case.
There being no additional objections and no clear error in the remainder of
Judge Strong's findings and recommendations,
IT IS HEREBY ORDERED that Judge Strong's Findings and
Recommendations (Doc. 72) are REJECTED. Defendants' Motion for Summary
Judgment (Doc. 46) is DENIED, subject to renewal.
IT IS FURTHER ORDERED, pursuant to Rule 26 ofthe Federal Rules of
Civil Procedure, that Defendants shall have sixty (60) days from the issuance of
this order to conduct additional discovery in this case. A motion for summary
judgment or Proposed Final Pretrial Order shall be filed within ninety (90) days of
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the issuance of this order.
Dated this
3 Y j,day of March, 201
Dana L. Christensen, Chief Judge
United States District Court
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