1 WO 2 3 4 5 8
10 Frederick Angus Miller, Jr., No. CV-21-1867-PHX-DGC
11 Plaintiff, ORDER
12 v.
13 Unknown Gordon,
14 Defendant. 15 16 17 After the Court denied Defendant’s first motion for summary judgment, the Court 18 found pro bono counsel to represent Plaintiff at trial. Doc. 114. The discovery period had 19 closed months before, but the Court allowed Plaintiff’s new counsel to engage in limited 20 additional discovery. Doc. 118. Following this discovery, Plaintiff’s counsel filed a motion 21 to amend the complaint, contending that discovery had disclosed a new theory of how 22 Plaintiff was assaulted. Doc. 132. The Court denied the motion to amend as futile because 23 Plaintiff’s new claims would have been barred by the statute of limitations. Doc. 137. 24 As the parties then prepared for trial, Plaintiff’s counsel asked the Court to 25 reconsider its denial of the motion to amend and, if not, to allow her to withdraw from the 26 case on undisclosed ethical grounds. Doc. 172. In deciding whether to reconsider, the Court 27 addressed Plaintiff’s claim that Defendant failed to disclose documents requested during 28 discovery. The Court found Defendant had not violated its discovery obligations and 1 declined to revisit its denial of leave to amend. Doc. 183. The Court granted Defendant’s 2 request to file a second motion for summary judgment based on alleged admissions made 3 in the motion to amend. Doc. 186. The Court also granted Plaintiff’s counsel’s motion to 4 withdraw. Id. 5 The Court will now rule on Defendant’s second motion for summary judgment. 6 Doc. 191. Plaintiff has filed a pro se response (Doc. 203) and Defendant has replied 7 (Doc. 214). Plaintiff also filed pro se motions to compel (Doc. 197) and for summary 8 judgment (Doc. 212). The Court heard oral argument on all these motions on September 9, 9 2024 (see Doc. 215), and will now deny them and proceed to trial. 10 I. Defendant’s Second Motion for Summary Judgment. 11 Defendant argues that summary judgment should be granted because concessions 12 made in Plaintiff’s motion to amend make clear that “Plaintiff’s cellmate, Inmate Fabian 13 Cortez-Gastelum . . . was the person who assaulted Plaintiff. There is no evidence that 14 Officer Gordon struck Plaintiff.” Doc. 191 at 2. 15 Plaintiff’s motion to amend did seek to add a claim that Plaintiff was assaulted by 16 Cortez-Gastelum at the urging of Defendant Gordon and other prison guards, but the Court 17 denied the amendment, and Plaintiff’s original complaint remains the operative pleading 18 in this case. See Yith v. Johnson, No. 1:14-cv-01875-LJO-SKO, 2016 WL 1117661, at *3 19 (E.D. Cal. Mar. 22, 2016) (“Because the Court denied Plaintiffs’ motion to amend as futile, 20 the original complaint is the operative complaint in this case.”). That complaint alleges 21 that Defendant Gordon struck Plaintiff on the back of the head while escorting Plaintiff 22 back to his cell. Doc. 1 at 3. The questions raised by Defendant’s second motion, therefore, 23 are whether Plaintiff continues – and can continue – to claim that Defendant Gordon 24 actually assaulted him, and whether Plaintiff has presented sufficient evidence for a 25 reasonable jury to find in Plaintiff’s favor on that claim. See Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 250 (1986). 27 Plaintiff’s response to Defendant’s motion makes clear that Plaintiff stands by his 28 original account of the assault. His response includes the following: 1 • Plaintiff states “under penalty of perjury” that his accounts of the assault are true 2 and accurate. Doc. 203 at 1. 3 • Plaintiff criticizes Defendant for failing to produce the video from wall-mounted 4 cameras that would have shown Plaintiff’s assault by Defendant Gordon. Id. at 3. 5 • Plaintiff testified in his deposition that Gordon was his attacker. Id. at 5. 6 • Plaintiff testified that he never made it back to his cell and that the alleged assault 7 by Cortez-Gastelum therefore was “impossible.” Id. at 6. 8 • Plaintiff alleges that after Cortez-Gastelum refused to fight Plaintiff on August 4, 9 2021, Gordon left his assigned work area to personally assault Plaintiff. Id. at 6. 10 • Plaintiff alleges that Gordon and Cortez-Gastelum both gave false depositions, and 11 that Cortez-Gastelum did not assault him. Id. at 7. 12 Plaintiff’s statement of facts in support of his response includes similar assertions: 13 • Plaintiff seeks to impugn the credibility of Gordon and Cortez-Gastelum by 14 asserting their accounts are contradictory. Doc. 204 at 4. 15 • Plaintiff again asserts that he testified in his deposition that Gordon was his attacker 16 and he was never assaulted by Cortez-Gastelum. Id. at 5. 17 • Plaintiff asserts that “Gordon did it himself.” Id. at 6. 18 • Plaintiff asserts that Gordon’s account of Plaintiff starting a fight with Cortez- 19 Gastelum could not be true because medical found no injuries to Cortez-Gastelum. 20 Id. 21 Plaintiff cites to, and in some instances attaches, portions of his deposition, Cortez- 22 Gastelum’s deposition, medical records, and various other documents. See Doc. 204. 23 Thus, Defendant’s argument that Plaintiff and Defendant now agree that Plaintiff 24 was assaulted by inmate Cortez-Gastelum is simply not correct. Plaintiff stands by his 25 original allegation, an allegation he has confirmed under oath in his deposition. Defendant 26 presents evidence from himself and Cortez-Gastelum that contradicts Plaintiff’s account, 27 but if the jury chooses to believe Plaintiff’s testimony, it will have a factual and legal basis 28 for ruling in Plaintiff’s favor. 1 To be sure, this is an unusual case. The attorney appointed to represent Plaintiff at 2 trial sought to amend the complaint to assert a different version of the assault. Doc. 135. 3 But the attorney’s motion specifically stated that Plaintiff “stands by his original 4 allegations in his Complaint and . . . has neither disavowed nor withdrawn those claims.” 5 Doc. 135 at 3. The fact that Plaintiff sought unsuccessfully to amend his complaint does 6 not change what he alleged in the complaint, nor does it eliminate the evidence in his 7 deposition testimony that Gordon assaulted him. A jury, not the Court, must resolve the 8 factual dispute between Plaintiff’s and Defendant’s evidence. See Anderson, 477 U.S. at 9 255 (“Credibility determinations, the weighing of the evidence, and the drawing of 10 legitimate inferences from the facts are jury functions, not those of a judge[.]”). 11 Defendant’s reply memorandum makes arguments that were not made in his second 12 motion for summary judgment. First, citing Truckstop.Net, L.L.C. v. Sprint Commc’ns Co., 13 L.P., 537 F. Supp. 2d 1126, 1135 (D. Idaho 2008), Defendant argues that the assertions in 14 Plaintiff’s motion to amend are “clear and unequivocal admissions” that are now binding 15 on Plaintiff. Doc. 214 at 3-4. Defendant did not make this argument or cite this case in 16 his second motion for summary judgment, and the Court will not grant summary judgment 17 on the basis of an argument first presented in a reply brief. Gadda v. State Bar of Cal., 511 18 F.3d 933, 937 (9th Cir. 2007) (“It is well established that issues cannot be raised for the 19 first time in a reply brief.”). 20 What is more, the decision in Truckstop.Net would not support summary judgment. 21 That case noted that “[j]udicial admissions are formal admissions in the pleadings which 22 have the effect of withdrawing a fact from issue and dispensing wholly with the need for 23 proof of the fact.” Id. at 1135 (citing American Title Ins. v. Lacelaw Corp., 861 F.2d 224, 24 226 (9th Cir. 1988)).
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 8
10 Frederick Angus Miller, Jr., No. CV-21-1867-PHX-DGC
11 Plaintiff, ORDER
12 v.
13 Unknown Gordon,
14 Defendant. 15 16 17 After the Court denied Defendant’s first motion for summary judgment, the Court 18 found pro bono counsel to represent Plaintiff at trial. Doc. 114. The discovery period had 19 closed months before, but the Court allowed Plaintiff’s new counsel to engage in limited 20 additional discovery. Doc. 118. Following this discovery, Plaintiff’s counsel filed a motion 21 to amend the complaint, contending that discovery had disclosed a new theory of how 22 Plaintiff was assaulted. Doc. 132. The Court denied the motion to amend as futile because 23 Plaintiff’s new claims would have been barred by the statute of limitations. Doc. 137. 24 As the parties then prepared for trial, Plaintiff’s counsel asked the Court to 25 reconsider its denial of the motion to amend and, if not, to allow her to withdraw from the 26 case on undisclosed ethical grounds. Doc. 172. In deciding whether to reconsider, the Court 27 addressed Plaintiff’s claim that Defendant failed to disclose documents requested during 28 discovery. The Court found Defendant had not violated its discovery obligations and 1 declined to revisit its denial of leave to amend. Doc. 183. The Court granted Defendant’s 2 request to file a second motion for summary judgment based on alleged admissions made 3 in the motion to amend. Doc. 186. The Court also granted Plaintiff’s counsel’s motion to 4 withdraw. Id. 5 The Court will now rule on Defendant’s second motion for summary judgment. 6 Doc. 191. Plaintiff has filed a pro se response (Doc. 203) and Defendant has replied 7 (Doc. 214). Plaintiff also filed pro se motions to compel (Doc. 197) and for summary 8 judgment (Doc. 212). The Court heard oral argument on all these motions on September 9, 9 2024 (see Doc. 215), and will now deny them and proceed to trial. 10 I. Defendant’s Second Motion for Summary Judgment. 11 Defendant argues that summary judgment should be granted because concessions 12 made in Plaintiff’s motion to amend make clear that “Plaintiff’s cellmate, Inmate Fabian 13 Cortez-Gastelum . . . was the person who assaulted Plaintiff. There is no evidence that 14 Officer Gordon struck Plaintiff.” Doc. 191 at 2. 15 Plaintiff’s motion to amend did seek to add a claim that Plaintiff was assaulted by 16 Cortez-Gastelum at the urging of Defendant Gordon and other prison guards, but the Court 17 denied the amendment, and Plaintiff’s original complaint remains the operative pleading 18 in this case. See Yith v. Johnson, No. 1:14-cv-01875-LJO-SKO, 2016 WL 1117661, at *3 19 (E.D. Cal. Mar. 22, 2016) (“Because the Court denied Plaintiffs’ motion to amend as futile, 20 the original complaint is the operative complaint in this case.”). That complaint alleges 21 that Defendant Gordon struck Plaintiff on the back of the head while escorting Plaintiff 22 back to his cell. Doc. 1 at 3. The questions raised by Defendant’s second motion, therefore, 23 are whether Plaintiff continues – and can continue – to claim that Defendant Gordon 24 actually assaulted him, and whether Plaintiff has presented sufficient evidence for a 25 reasonable jury to find in Plaintiff’s favor on that claim. See Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248, 250 (1986). 27 Plaintiff’s response to Defendant’s motion makes clear that Plaintiff stands by his 28 original account of the assault. His response includes the following: 1 • Plaintiff states “under penalty of perjury” that his accounts of the assault are true 2 and accurate. Doc. 203 at 1. 3 • Plaintiff criticizes Defendant for failing to produce the video from wall-mounted 4 cameras that would have shown Plaintiff’s assault by Defendant Gordon. Id. at 3. 5 • Plaintiff testified in his deposition that Gordon was his attacker. Id. at 5. 6 • Plaintiff testified that he never made it back to his cell and that the alleged assault 7 by Cortez-Gastelum therefore was “impossible.” Id. at 6. 8 • Plaintiff alleges that after Cortez-Gastelum refused to fight Plaintiff on August 4, 9 2021, Gordon left his assigned work area to personally assault Plaintiff. Id. at 6. 10 • Plaintiff alleges that Gordon and Cortez-Gastelum both gave false depositions, and 11 that Cortez-Gastelum did not assault him. Id. at 7. 12 Plaintiff’s statement of facts in support of his response includes similar assertions: 13 • Plaintiff seeks to impugn the credibility of Gordon and Cortez-Gastelum by 14 asserting their accounts are contradictory. Doc. 204 at 4. 15 • Plaintiff again asserts that he testified in his deposition that Gordon was his attacker 16 and he was never assaulted by Cortez-Gastelum. Id. at 5. 17 • Plaintiff asserts that “Gordon did it himself.” Id. at 6. 18 • Plaintiff asserts that Gordon’s account of Plaintiff starting a fight with Cortez- 19 Gastelum could not be true because medical found no injuries to Cortez-Gastelum. 20 Id. 21 Plaintiff cites to, and in some instances attaches, portions of his deposition, Cortez- 22 Gastelum’s deposition, medical records, and various other documents. See Doc. 204. 23 Thus, Defendant’s argument that Plaintiff and Defendant now agree that Plaintiff 24 was assaulted by inmate Cortez-Gastelum is simply not correct. Plaintiff stands by his 25 original allegation, an allegation he has confirmed under oath in his deposition. Defendant 26 presents evidence from himself and Cortez-Gastelum that contradicts Plaintiff’s account, 27 but if the jury chooses to believe Plaintiff’s testimony, it will have a factual and legal basis 28 for ruling in Plaintiff’s favor. 1 To be sure, this is an unusual case. The attorney appointed to represent Plaintiff at 2 trial sought to amend the complaint to assert a different version of the assault. Doc. 135. 3 But the attorney’s motion specifically stated that Plaintiff “stands by his original 4 allegations in his Complaint and . . . has neither disavowed nor withdrawn those claims.” 5 Doc. 135 at 3. The fact that Plaintiff sought unsuccessfully to amend his complaint does 6 not change what he alleged in the complaint, nor does it eliminate the evidence in his 7 deposition testimony that Gordon assaulted him. A jury, not the Court, must resolve the 8 factual dispute between Plaintiff’s and Defendant’s evidence. See Anderson, 477 U.S. at 9 255 (“Credibility determinations, the weighing of the evidence, and the drawing of 10 legitimate inferences from the facts are jury functions, not those of a judge[.]”). 11 Defendant’s reply memorandum makes arguments that were not made in his second 12 motion for summary judgment. First, citing Truckstop.Net, L.L.C. v. Sprint Commc’ns Co., 13 L.P., 537 F. Supp. 2d 1126, 1135 (D. Idaho 2008), Defendant argues that the assertions in 14 Plaintiff’s motion to amend are “clear and unequivocal admissions” that are now binding 15 on Plaintiff. Doc. 214 at 3-4. Defendant did not make this argument or cite this case in 16 his second motion for summary judgment, and the Court will not grant summary judgment 17 on the basis of an argument first presented in a reply brief. Gadda v. State Bar of Cal., 511 18 F.3d 933, 937 (9th Cir. 2007) (“It is well established that issues cannot be raised for the 19 first time in a reply brief.”). 20 What is more, the decision in Truckstop.Net would not support summary judgment. 21 That case noted that “[j]udicial admissions are formal admissions in the pleadings which 22 have the effect of withdrawing a fact from issue and dispensing wholly with the need for 23 proof of the fact.” Id. at 1135 (citing American Title Ins. v. Lacelaw Corp., 861 F.2d 224, 24 226 (9th Cir. 1988)). Truckstop.Net denied summary judgment because the alleged 25 admission was “ambiguous” and did not involve the judicial admission rule identified in 26 the American Title case. Id. As already noted, Plaintiff’s motion to amend in this case 27 stated that he “stands by his original allegations in his Complaint and . . . has neither 28 disavowed nor withdrawn those claims.” Doc. 135 at 3. This statement is difficult to 1 square with the thrust of Plaintiff’s motion to amend – introducing a new version of the 2 assault – but it also creates ambiguity concerning the nature and intent of the assertions in 3 Plaintiff’s motion to amend. This ambiguity prevents the Court from treating the motion 4 to amend as a clear and unambiguous admission contrary to Plaintiff’s complaint. 5 Second, Defendant’s reply brief argues that the Court should apply the “sham 6 affidavit rule” and preclude Plaintiff from relying on the assertions in his response to the 7 second motion. Doc. 214 at 5. This argument also was not made in Defendant’s second 8 motion for summary judgment, and the Court will not rely on it to grant summary 9 judgment. 10 Furthermore, the sham affidavit rule would not support summary judgment for 11 Defendant. “The general rule in the Ninth Circuit is that a party cannot create an issue of 12 fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. 13 Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (citations omitted). “This sham affidavit rule 14 prevents a party who has been examined at length on deposition from raising an issue of 15 fact simply by submitting an affidavit contradicting his own prior testimony, which would 16 greatly diminish the utility of summary judgment as a procedure for screening out sham 17 issues of fact.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quoting Kennedy, 18 952 F.2d at 266). Because a court is not to weigh conflicting evidence or make credibility 19 determinations on summary judgment, the sham affidavit rule “should be applied with 20 caution.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). In light of 21 this caution, and the fact that Plaintiff has not contradicted his deposition testimony, plus 22 the fact that his motion to amend was ambiguous on the extent of his admissions, the Court 23 cannot conclude that this an appropriate case for the sham affidavit rule. 24 Finally, Defendant argues that the Court should grant summary judgment because 25 the evidence is “overwhelmingly in Officer Gordon’s favor.” Doc. 214 at 2. To make this 26 decision, however, the Court would need to weigh the credibility of Plaintiff’s deposition 27 28 1 testimony that he was struck by Defendant Gordon. That task belongs to the jury, not the 2 Court.1 3 II. Plaintiff’s Motions. 4 Plaintiff’s recently-filed motion for summary judgment (Doc. 212) appears to be a 5 second response to Defendant’s new motion for summary judgment. Plaintiff asks for a 6 jury trial, not summary judgment. Doc. 212 at 7. Plaintiff makes many of the arguments 7 made in his response to Defendant’s motion, again asserting that he was assaulted by 8 Defendant Gordon, not by inmate Cortez-Gastelum. Id. at 6. Because Plaintiff does not 9 seek summary judgment, and makes no arguments supporting summary judgment in his 10 favor, the Court will deny his recent motion. 11 Plaintiff’s motion to compel asks the Court to require production of Defendant’s 12 entire employment file from the Arizona Department of Corrections. Doc. 197. Defendant 13 responds that Plaintiff requested this file in June 2022, Defendant objected on relevancy 14 grounds, and Plaintiff never raised this issue with the Court. Doc. 205 at 1-2. Defendant 15 further notes that the Court’s Scheduling Order established an August 15, 2022 discovery 16 deadline, and stated that “[a]bsent extraordinary circumstances, the Court will not entertain 17 fact discovery disputes after the deadline for completion of fact discovery.” Id. at 2 18 (quoting Doc. 16 at 3-4). Plaintiff has filed no reply in support of the motion to compel. 19 Because Plaintiff waited more than two years to raise this discovery issue with the 20 Court, it clearly is untimely. Indeed, Plaintiff’s counsel did not seek this discovery during 21 the limited additional discovery period allowed by the Court. In addition to being untimely, 22 Plaintiff has not shown extraordinary reasons for raising the issue after the discovery 23 24 1 Defendant also contends that Plaintiff’s motion to amend admits he cannot 25 remember the assault by Cortez-Gastelum, showing that he has no basis for testifying about how he was injured. Plaintiff’s assertion, however, was that he could not recall the events 26 in his cell because he was knocked unconscious, not that he could not recall the events that occurred while being escorted back to his cell by Defendant. Doc. 135 at 3-10. The Court 27 recognizes that the evidentiary issues in this case have been muddied considerably by Plaintiff’s motion to amend, and it may well be that a jury elects to believe Defendant 28 Gordon. But this case still presents a credibility contest that cannot be decided by the Court on summary judgment. 1 || deadline as required by the Court’s Scheduling Order. The Court will deny □□□□□□□□□□□ motion to compel. 3 IT IS ORDERED: 4 1. Defendant’s second motion for summary judgment (Doc. 191) is denied. 5 2. Plaintiff's motion to compel (Doc. 197) and motion for summary judgment 6 (Doc. 212) are denied. 7 3. The trial in this case will begin on December 10, 2024 and will last four days. 8 A final pretrial conference will be held on November 26, 2024, at 1:00 p.m. 9 Many of the pretrial tasks have already been completed in this case. The Court 10 will issue a separate order outlining the steps that need to be completed before 11 the final pretrial conference. 12 Dated this 9th day of September, 2024. 13 DS aul 6 Dank &, Canrplhtel 16 David G. Campbell 7 Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28