United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Defendants' Motion for Summary
Judgment (Doc. 209). The Court now rules on the motion.
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).
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 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.
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
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).
set forth the pertinent factual and procedural background,
the Court turns to Defendants' Motion for Summary
SUMMARY JUDGEMENT STANDARD
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).
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).
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).
Admissibility of Evidence at the Summary Judgment
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)).
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).
Admissibility of Plaintiffs' Exhibits
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
[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.
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)).
GROSS NEGLIGENCE CLAIM
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