Hoover v. Freeman

DONNA HOOVER, Plaintiff, v. CATHLEEN FREEMAN, et al., Defendants.

CIVIL ACTION NO. 3:11cv1022-SRW

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

DONE: September 24, 2013

MEMORANDUM OPINION and ORDER

This action is before the undersigned Magistrate Judge by written consent of all parties, pursuant to 28 U.S.C. § 636(c). (See Doc. ## 18, 19). Plaintiff Donna Hoover sues defendants Cathleen Freeman, Shannon Chambers and Steve McClendon¹ - in their individual capacities only - pursuant to 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments. She alleges that each defendant is "an agent, employee, jailer or officer for the Russell County Sheriff" and claims that each is liable to her for personally subjecting her to excessive force and for failing to prevent the other defendants from doing the same after the officer who arrested plaintiff for DUI on November 14, 2010, brought her to the Russell County jail. (Doc. # 1). This action is presently before the court on the motion for summary judgment filed by defendants on June 3, 2013 (Doc. # 41). By order entered on June 4, 2013,the court advised plaintiff regarding summary judgment procedure and allowed her an opportunity to file a response to the motion (Doc. # 45); however, plaintiff has failed to do so. Upon consideration of defendants' motion, the court concludes that it is due to be granted.

SUMMARY JUDGMENT STANDARD

Under the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that 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). "Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial." Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir.2010). "Federal Rule of Civil Procedure 56 requires a party asserting that a fact is genuinely disputed to support his assertion by citing to specific materials in the record, and a failure to do so allows the district court to consider the facts as undisputed for purposes of the motion for summary judgment." Williams v. Slack, 438 Fed. Appx. 848, 849 (11th Cir. 2011)(citing Fed. R. Civ. P. 56(c)(1)(A), (e)(2)). In resolving a summary judgment motion, "the evidence and all reasonable inferences from that evidence are viewed in the light most favorable to the nonmovant, but those inferences are drawn only to the extent supportable by the record." Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010)(citations and internal quotation marks omitted).

EVIDENTIARY ISSUES

McLendon's Affidavit

The court imposed a deadline of June 3, 2013 for filing dispositive motions. (Doc. # 38). In support of the motion they filed on that date, defendants contemporaneously filed, inter alia, a signed - but unsworn - statement from defendant McLendon (Doc. # 43-9). Three days later, defendants moved to substitute McLendon's sworn affidavit. (Doc. # 46). Although McLendon had signed the statement before the motion was filed, defense counsel explained that McLendon was unavailable to have it notarized in time for filing with the motion. (Id.). However, the affidavit filed with the motion bore an attestation date of May 28, 2013, six days before the summary judgment motion was filed. (Doc. # 46-1). After the court sought an explanation for the discrepancy from defense counsel (Doc. # 47), he explained - attaching a declaration from the notary, the office manager for the Russell County Sheriff - that McLendon executed the affidavit on June 4, 2013, but the notary had misdated her attestation for May 28, 2013 (Doc. # 48, 48-1).² Defendants moved to substitute a replacement affidavit for McLendon, notarized on June 18, 2013, for the misdated affidavit filed on June 6, 2013 (Doc. # 48, p. 5; Doc. # 48-2). In view of the notary's declaration, the court will consider the affidavit executed on June 18, 2013 (Doc. # 48-2) on the present motion.³

Videos

On the date that summary judgment motions were due, defendants also filed a "Notice of Conventionally Filing Exhibits" advising the court that Exhibits A through D were videos "on DVD format that have been mailed via United States Postal Service, first class postage prepaid to Pro Se Plaintiff, and to the Clerk of the Middle District." (Doc. # 44)(italics as in original). When the DVDs failed to arrive in the court's mail, the docket clerk telephoned defense counsel's office. On June 24, 2013, defendants filed an "Amended Notice of Conventionally Filed Exhibits" (Doc. # 49), in which defense counsel states that he served the DVDs on plaintiff by first class mail on June 3, 2013, as indicated in his original notice, and hand-delivered a courtesy copy to chambers (which the undersigned has no record of receiving at that time). However, he also represents that the DVDs were hand-delivered to the Clerk with the amended notice - i.e., on June 24, 2013. Defendants do not now contend that they mailed a set of the DVDs to the court by first class mail on June 3, 2013, as represented in their original notice (Doc. # 44), and offer no cause - good or otherwise - for their three-week delay in filing the DVDs. (See Doc. # 49). As a result of the delay, the video evidence was presented to the Clerk on the very day on which plaintiff's response to the summary judgment motion was due. (See Doc. # 45). Defense counsel does not explain how he knows that the DVDs were mailed to plaintiff on June 3, 2013, when it appears thatthe DVDs that counsel apparently intended to send to the Clerk on the same day were never mailed. Upon review of the docket, the court cannot conclude with confidence that defense counsel mailed a set of the DVDs to plaintiff by first class mail on June 3, 2013. Because it is not clear that plaintiff received the DVDs in a timely manner, and because defendants have not sought leave of the court for the untimely filing of the evidence into the record, the court declines to consider the videos designated as defendants' Exhibits A through D.

Unsworn Interview Transcripts

Defendants have filed transcriptions of recordings of interviews conducted by an investigator for the Russell County Sheriff's Office of various witnesses - Towne, Hodges, and Renfroe - appending them to the affidavits of the witnesses. However, the affidavits do not reference the interview transcripts. Thus, the witnesses have not, under oath, adopted or incorporated their previous statements as reflected in the transcriptions of the recorded interviews. The transcriptions are not competent evidence on the present motion, and the court has not considered them. (See Doc. # 43-5 (Towne aff.) and Doc. # 43-6 (transcribed interview); Doc. # 43-12 (Hodges aff. at pp. 2-3 and transcribed interview at pp. 5-12); Doc. # 43-13 (Renfroe aff. at pp. 2-4 and transcribed interview at pp. 5-13)).

Remaining Evidence

Rule 56 requires that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1)(A)(emphasis added), by "showing that the materials cited do not establishthe absence or presence of a genuine dispute," Fed. R. Civ. P. 56(c)(1)(B), or by showing "that an adverse party cannot produce admissible evidence to support the fact," id.. Defendants' summary judgment brief cites those portions of the evidence of record that defendants contend satisfy their burden on summary judgment, as is required by Rule 56(c) and this court's order. (See Defendants' brief at pp. 4-10 (statement of facts); Doc. # 21, ¶ 4 (Order stating, "Briefs must contain a statement of facts including specific references to the record. The court will not consider documents or parts of documents that have not been specifically cited by page number."). Plaintiff has not responded to the present motion and, therefore, has not cited any evidence at all in opposition to the motion.⁴ Accordingly, in determining whether defendants have satisfied their burden of showing that there is no genuine dispute of material fact, the court has considered no evidence other than the "particular parts of the materials of record" cited by defendants in their brief, including the footnotes. The court is not required to sift through the remainder of the record (including the portions of plaintiff's deposition testimony not cited by defendants) in search of evidence that might defeat the motion. See Fed. R. Civ. P. 56(c)(3)("The court need consider only the cited materials, but it may consider other materials in the record.")(emphasis added); Fed. R. Civ. P. 56(e)(2)("If a party ... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion[.]");Daughtry v. Army Fleet Support, LLC, 925 F.Supp.2d 1277, 1284 (M.D. Ala. 2013)(declining to "scour [plaintiff's] ... evidentiary submission, unguided by [plaintiff] himself, for possible supporting evidence")(citing Fed. R. Civ. P. 56(c)(1)(A), (c)(3)).

This is not to say that the court accepts all the facts as set forth by defendants in their brief. In some instances, defendants have made statements of fact without citing evidence of record,⁵ and cited portions of plaintiff's deposition that do not constitute competent evidence of the facts for which they are cited.⁶ They have also included facts that - while supported by evidence - are shown by other cited evidence to be in dispute.⁷ Thus, in resolving the present motion, the court has considered the underlying evidence cited by defendant, except for the evidence the court has excluded expressly above and except foraffidavit testimony that is inadmissible hearsay, conclusory, or speculative.⁸ It has resolved any conflicts and drawn reasonable inferences from the evidence in plaintiff's favor.

UNDISPUTED FACTS...