Sutton v. Heaward et al

Filing 65

ORDER denying 59 Motion to Supplement the record to add an exhibit, signed by Magistrate Judge Theresa L Fricke.**2 PAGE(S), PRINT ALL**(Jason Sutton, Prisoner ID: 730954)(CMG)

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5
6

JASON LEE SUTTON,
Case No. C17-5546-RJB-TLF

7
8
9
10
11
12

Plaintiff,
ORDER ON MOTION TO
SUPPLEMENT THE RECORD

v.
DARREN HEAWARD ET. AL.,
Defendants.

The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate
Judge Theresa L. Fricke. Defendants have moved for summary judgment. Dkt. 32.

13

Several months after the discovery deadline, Dkt. 25, plaintiff moved to supplement the

14

record to add an exhibit to his Response and Opposition Brief. Dkt. 59. Defendants responded.

15

Dkt. 63. Plaintiff seeks to introduce a Senate Bill Report, 2ESSB 5294, that contains a “Staff

16

Summary of Public Testimony.” The document states that witnesses had testified about the

17

problem of retaliation by DOC managers against DOC employees who acted as whistleblowers

18

regarding misreporting of data. Dkt. 59-1, p. 7.

19

“The evidence on which a party opposing summary judgment relies must be admissible at

20

trial, but the evidence need not be in admissible form. See, e.g., Clark v. Cnty. of Tulare, 755 F.

21

Supp. 2d 1075, 1082-82 (E.D. Cal. 2010).” Evidence is relevant if it has “any tendency to make

22

the existence of any fact that is of consequence to the determination of the action more probable

23

or less probable than it would be without the evidence.” Federal Rule of Evidence (FRE) 401;

24

Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971 (9th Cir. 2009). “Evidence of a person's

25
ORDER ON MOTION TO SUPPLEMENT THE RECORD 1

1

character or character trait is not admissible to prove that on a particular occasion the person

2

acted in accordance with the character or trait.” FRE 404(a)(1).

3

The Court will deny Sutton’s motion to add the Senate Bill Report to the record. Sutton

4

has not shown that the Report is relevant to any of the issues in his Section 1983 suit, which

5

pertains to the conduct of three individual defendants. The testimony recounted in the Report—

6

even if it does not constitute inadmissible hearsay—has no tendency to make more or less

7

probable Sutton’s assertion that defendants Heaward, Kettel, and McKenney conspired to

8

wrongfully infract him, nor any other fact of consequence to his due process and retaliation

9

claims. Rather, as defendants also point out, Sutton’s motion appears to rely on an impermissible

10

inference that DOC employees have a propensity to retaliate and that the three defendants acted

11

in accordance with that propensity with respect to Sutton. See FRE 404(b).

12
13

Because the proffered evidence would be irrelevant and inadmissible, Sutton’s motion to
supplement, Dkt. 59, is DENIED.

14

Dated this 30th day of July, 2018.

15
16
17

A

18

Theresa L. Fricke
United States Magistrate Judge

19
20
21
22
23
24
25
-2