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Ferreira v. Arpaio

United States District Court, D. Arizona

December 22, 2017

Shari Ferreira, et al., Plaintiffs,
Joseph M Arpaio, et al., Defendants.


          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Defendants' Motion for Summary Judgment (Doc. 209). The Court now rules on the motion.

         I. BACKGROUND

         On July 31, 2017, Defendants filed the pending Motion for Summary Judgment (Doc. 209). Plaintiffs filed a timely Response on September 20, 2017 (Doc. 230). Defendants then filed a Reply on November 2, 2017 (Doc. 236).

         Following this Court's Order on Defendants' Motion to Dismiss (Doc. 76), Plaintiffs maintain the following two causes of action: (1) a gross negligence claim against Defendants Penzone[1] and Maricopa County for failure to train, supervise, and hire; and (2) Fourteenth Amendment failure-to-protect and familial-association claims under 42 U.S.C. § 1983 against Defendants Penzone, Alvarez, Maricopa County, Hovanec, Huber, and Hansen.

         A. Facts

         Plaintiff Shari Ferreira brought this action on behalf of decedent Zachary Daughtry in her capacity as personal representative of the estate (hereafter “Plaintiffs”) against Maricopa County and several public employees (collectively “Defendants”). (Doc. 12 at 2). The Court went through the background facts regarding the decedent's injuries in its Order on Defendants' Motion to Dismiss, so the Court will not repeat them all here (See Doc. 76 at 2). Facts most relevant to this Order are discussed below and the Court will discuss other relevant facts as necessary:

Daughtry was initially arrested on December 12, 2013, and booked into the 4th Avenue Jail complex. ([Doc. 12] at 8). Over the following months, Daughtry “had several assignments and transfers” to different facilities, but was ultimately transferred back to the 4th Avenue Jail on July 6, 2014. (Id.). Between his initial booking and July 6, Daughtry had been referred to “Psychiatric Services” on several occasions in light of “medical and mental health issues that required ongoing medical and psychological treatment.” (Id.).
On July 9, 2014, fellow inmate [] Ryan Bates was placed in a cell with Daughtry after Bates was discovered in a restricted area of the 4th Avenue Jail. (Doc. 12 at 9 ¶[¶] 42-43). At approximately 2200 hours, officers were “escorting medical personnel and conducting a general headcount, ” and passed by Daughtry's cell. (Id. at 12 ¶ 67). When the officers passed by, they observed Bates standing over Daughtry, who was unresponsive and visibly bleeding from the head and face. (Id.). Daughtry received medical treatment on-site, and was subsequently transported to Banner Good Samaritan Hospital “with life threatening injuries.” (Id. at 12-13). Daughtry suffered “multiple facial fractures, major head injuries including orbital fractures, nose fractures, a broken jaw, internal injuries, a subdural hematoma to the brain with brain bleed, and severe lacerations to his head and left ear.” (Id. at 13). On July 20, 2014, Daughtry passed away from his injuries. (Id. at 15 ¶ 76).

(Doc. 76 at 2).

         Having set forth the pertinent factual and procedural background, the Court turns to Defendants' Motion for Summary Judgment.


         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and the elements of the cause of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.' ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the Court's role is to determine whether there is a genuine issue available for trial. There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. (citations omitted).

         A. Admissibility of Evidence at the Summary Judgment Stage

         The Ninth Circuit applies a double standard to the admissibility requirement for evidence at the summary judgment stage. See 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 1998). With respect to the movant's evidence offered in support of a motion for summary judgment, the Ninth Circuit requires that it be admissible both in form and in content. See Canada v. Blains Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976). With respect to non-movant's evidence offered in opposition to a motion for summary judgment, the Ninth Circuit has stated that the proper inquiry is not the admissibility of the evidence's form, but rather whether the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”); Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” (emphasis added)).

         Accordingly, the Ninth Circuit has held that a non-movant's hearsay evidence may establish a genuine issue of material fact precluding a grant of summary judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Thus, “[m]aterial in a form not admissible in evidence may be used to avoid, but not to obtain summary judgment, except where an opponent bearing a burden of proof has failed to satisfy it when challenged after completion of relevant discovery.” Tetra Techs., Inc. v. Harter, 823 F.Supp. 1116, 1120 (S.D.N.Y. 1993) (emphasis in original). Similarly, evidence containing hearsay statements is admissible only if offered in opposition to the motion. “Because [v]erdicts cannot rest on inadmissible evidence and a grant of summary judgment is a determination on the merits of the case, it follows that the moving party's affidavits must be free from hearsay.” Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1121 (E.D. Cal. 2006) (internal quotation marks omitted) (emphasis in original).

         1. Admissibility of Plaintiffs' Exhibits

         Here, Defendants argue that they are entitled to summary judgment because Plaintiffs' Response (Doc. 230) “is supported by inadmissible evidence, ” namely the report of jail operations expert Jeffrey Eiser. (Doc. 236 at 2). Plaintiffs, in part, rely on Expert Eiser's report, which is signed but unsworn, to oppose Defendants' motion on all remaining claims. (See Doc. 229-7 at 33). Plaintiffs point out that courts in the Ninth Circuit have routinely held that “to be competent summary judgment evidence, an expert report must be sworn to or otherwise verified, usually by a deposition or affidavit, ” regardless of whether an expert report is being offered to support or oppose summary judgment. Reed v. NBTY, Inc., No. EDCV 13-0142 JGB (OPx), 2014 WL 12284044, at *4 (C.D. Cal. Nov. 18, 2014). However, “courts have generally held that this problem may be remedied after it is identified.” King Tuna, Inc. v. Anova Food, Inc., CV 07-7451 ODW (JWJx), 2009 WL 650732, at *1 (C.D. Cal. Mar. 10, 2009) (citing Maytag Corp. v. Electrolux Home Prods., Inc., 448 F.Supp.2d 1034, 1043 (N.D. Iowa 2006) (“while an unsworn expert report, standing alone, does not constitute admissible evidence that can be considered at the summary judgment stage of the proceedings, . . . an unsworn expert report may be considered at summary judgment where the opinions therein are otherwise adopted or reaffirmed”)).[2]

         “Although [Defendants] are correct that [Plaintiffs'] report should have been signed under penalty of perjury, as the party opposing summary judgment, [Plaintiffs'] papers are held to a less exacting standard than those of [the moving party].” Finmeccanica S.p.A. v. Gen. Motors Corp., No. CV 07-07537 SJO (PJWx), 2008 WL 11336141, at *9 (C.D. Cal. Dec. 17, 2008) (citing Competitive Techs., Inc. v. Fujitsu Ltd., 333 F.Supp.2d 858, 863 (N. D. Cal. 2004) (admitting signed but unsworn expert reports that otherwise met the requirements of Federal Rule of Civil Procedure (“Rule”) 56(e), as prescribed by Rule 56(c)(4))). “Further, ‘the existence of [the report], although not presently in evidentiary form, should alert the summary judgment court to the availability at the trial of the facts contained in [them].' ” Id. (quoting Competitive Techs., Inc., 333 F.Supp. 2d. at 864). Defendants raise no questions as to the authenticity of Expert Eiser's report or predicted testimony in this matter.

         The Court has carefully reviewed Expert Eiser's report and finds that it meets the requirements of Rule 56(e), namely that it is “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” therein. Fed.R.Civ.P. 56(c)(4). Expert Eiser's report does state that his opinions therein are based on his “training, education and personal knowledge, ” and makes clear his intention to testify to his opinions at trial. Under these circumstances, the Court declines to exclude the Eiser report for the purposes of considering Defendants' summary judgment motion. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) (“when a party opposing summary judgment fails to comply with the formalities of Rule 56, a court may choose to be somewhat lenient in the exercise of its discretion to deal with the deficiency” (citations omitted)).


         Plaintiffs maintain a state law tort claim against Defendants Penzone and Maricopa County alleging that these Defendants were grossly negligent in hiring, training, and supervising jail ...

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