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Dennis A. Orr v. Warden Phillip Valdez

March 8, 2012


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge


Now pending is Defendants' motion for summary judgment. (Dkt. 40). Defendants argue that Plaintiff's claims cannot be factually supported and must be dismissed accordingly. Memorandum in Support, 7-12 (Dkt. 40-1). Also pending is Defendants motion to strike much of Plaintiff's supporting documentation as inadmissible hearsay and irrelevant. (Dkt. 58). Having thoroughly reviewed the record in this case, and otherwise being advised, the Court enters the following Order granting the motion to dismiss and granting in part and denying in part the motion to strike.


On December 17, 2010, the Court entered an Initial Review Order allowing Plaintiff to proceed with eight amendment medical claims against two named Defendants, Valdez and Stander. (Dkt. 19). Plaintiff claims that Defendant Philip Valdez, warden at the Idaho Correctional Center (ICC), and Defendant Klint Stander, a doctor at ICC, have denied him adequate medical care solely for cost saving purposes in violation of the Eighth Amendment. Amended Complaint (Dkt. 17).

Plaintiff states that he has severe back pain due to degenerative disc disease and alleges that he has been denied effective treatment. Plaintiff finds it difficult to walk, sleep, or perform other basic life activities. He contends that several doctors have told him that he needs to have his knee replaced, but Stander informed him that CCA will not pay for it. Plaintiff further asserts that Stander has denied him effective pain medication, despite his repeated requests.

Plaintiff also has heart disease and states that the drugs that prison medical providers have used to treat this condition are not effective. According to Plaintiff, the ineffective medication required Plaintiff's heart to work too hard, increasing his blood pressure. Plaintiff now has an enlarged heart and is short of breath all of the time. He also has early kidney failure, poor hearing, and poor vision. He alleges that none of his physical ailments are being adequately treated, in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment.

In his original complaint, Plaintiff also complained of the food at the prison. He alleged that he had lost 40 pounds in 3 months because the food at ICC is "unfit for human consuption [sic]." Id. at 26. He alleged that inmates have found food labels that state as much, and that when they showed them to Defendant Valdez, the labels "disappeared." Id.

Motion to Strike

Defendants move to strike much of Plaintiff's supporting evidence as inadmissible hearsay and irrelevant. With regard to hearsay, Defendants argue that "[m]uch of Plaintiff's filings contain inadmissible hearsay, the majority of which is found in Plaintiff's own affidavit." Motion to Strike, 2 (Dkt. 58-1). Additionally, Defendants point to several portions of third party declarations containing inadmissible hearsay, including citations to unidentifiable inmates and a "Man on Speakerphone." Id.

Defendants' relevancy objections relate to Plaintiff's attempts at introducing evidence of medical treatment he received prior to being housed at ICC. Specifically, Defendants contend that "[w]hile Plaintiff's past medical condition may be relevant to highlight any change in his condition, the paragraphs Defendants cite here only serve to add to Plaintiff's narrative that he has never received appropriate medical care." Id. at 3. Thus, Defendants seek that the Court "strike paragraphs 13-18 of the Affidavit of Dennis A. Orr (Dkt. 47-3) in that they are irrelevant to his current care at ICC." Id. Defendants also move to strike Plaintiff's inclusion of the exhibit entitled: "Dr. Agler -No Credibility." Defendants argue that because "credibility determinations are not appropriate in a motion for summary judgment, any evidence provided specifically to attack an affiant's credibility is irrelevant and improper and Defendants request that such be stricken from the record."Motion to Strike, 3-4 (Dkt. 58-1).

Finally, Defendants request that various affidavits of other inmates' narratives of their medical care at ICC be stricken as irrelevant. Id. Defendants argue that "[t]hese affidavits have absolutely no connection with Plaintiff, Plaintiff's medical condition, or Plaintiff's medical treatment at ICC." Id.

Plaintiff responds by letter, seeking leave to file a sur-reply to Defendant's reply in support of summary judgment. (Dkt. 62). In sum, Plaintiff contends that Defendants are telling "one lie after another" and by moving to strike his affidavits, they are "furthering their dishonesty." Id. Plaintiff concludes by inferring that Defendants are withholding evidence that is favorable to Plaintiff's claims. Id.

A trial court can only consider admissible evidence in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988). Federal Rule of Civil Procedure 56(e) requires that any affidavit be made on personal knowledge, that the affiant be competent to testify to the matters stated therein, and that sworn or certified copies of all papers referred to in an affidavit be attached thereto. Id. In a summary judgment motion, documents authenticated through personal knowledge must be "attached to an affidavit that meets the requirements of Fed.R.Civ.P. 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). "A document can be authenticated under Federal Rule of Evidence 901(b)(1) by a witness who wrote it, signed it, used it, or saw others do so." Wright & Gold, Federal Practice & Procedure: Evidence § 7106, 43 (2000).

Because of his status as pro se litigant, the court is compelled to search the record for evidence supporting his claims. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004)

("we must consider as evidence in his opposition to summary judgment all of [Plaintiff's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence ..."). Such evidence need not be in admissible form, but merely susceptible to being placed in such form at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); See also Aholeli v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670 (9th Cir. 2007).

The court has reviewed the alleged hearsay statements in question and finds Defendant's objections well-founded. The Court finds that the statements at issue constitute hearsay and do not fit within any exception to the hearsay rule. The Court further believes that Plaintiff is offering these statements for the truth of the matter asserted. Likewise, the hearsay statements submitted by Plaintiff are stricken from his affidavit, and the Court will not consider those statements in ruling on the motion for summary judgment. Further, the exhibit marked "Dr. Agler -No Credibility," and the various accounts from non-party inmates will be striken as irrelevant. The court has reviewed the statements in question and does not find any of the challenged paragraphs necessary or beneficial in resolving any of the claims before the court.

The portions of Plaintiff's affidavit relating to care he received while at ISCI , paragraphs 13--18, will be considered. As Defendants concede, Plaintiff's past medical condition may be relevant to highlight any change in his condition." The court is cognizant that Plaintiff"s claims do not encompass medical treatment he received while housed at ISCI, and will review Plaintiff's evidence with a mindful eye.

Motion to Dismiss

Defendants argue that the facts on the record "demonstrate a lack of deliberate indifference," pointing to the fact that Plaintiff did receive treatment, even if it was not the treatment that he wanted. Id. at 11-14. Defendants further argue that Defendant Valdez should be dismissed because Plaintiff cannot demonstrate that Valdez personally participated in any of the decisions regarding Plaintiff's medical care. Id. at 15. Finally, Defendants submit that Plaintiff's claims relating to the prison food, made in his original complaint (Dkt. 3), should be dismissed as waived because Plaintiff failed to include them in his amended complaint. Id. at 17. In response, Plaintiff maintains that there ...

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