United States District Court, D. Oregon, Medford Division
MARK D. CLARKE, Magistrate Judge.
Plaintiff Joshua Brewer ("Brewer") brings this action against the City of Medford (the "City), the Medford Police Department (the "Department"), Mayor Gary Wheeler ("Wheeler"), Officer Ian McDonald ("McDonald"), Sergeant Ben Lytle ("Lytle"), Lieutenant Brett Johnson ("Johnson"), Chief Randy Schoen ("Schoen"), Deputy Chief Tim Doney ("Doney") and Chief Tim George ("George") (collectively, the "Defendants"). Brewer alleges Defendants conspired to violate his civil rights; initiated a malicious prosecution against him; and conducted an unlawful search, seizure, and arrest. Brewer raises claims of supervisor and government liability under 42 U.S.C. § 1983. He further alleges the following pendant state claims: malicious prosecution; unlawful search, seizure, and arrest; and intentional infliction of emotional distress (IIED).
Currently before the court are Defendants' two partial motions for summary judgment. The parties executed written consent to entry of judgment by a United States Magistrate Judge (#54). For the reasons stated below, Defendants' first motion (#26) is GRANTED and Defendants' second motion (#39) is GRANTED in part and DENIED in part.
The court addresses the following issue before reaching the merits of Defendants' motions.
I. Defendants' Motion to Strike
Brewer offers a report drafted by Carl Worden, identified as an "investigator, " in opposition to Defendants' second motion for summary judgment. (Glass Decl. Ex. 3). Defendants move to strike the report in its entirety, contending it is inadmissible hearsay.
It is well settled that a trial court can consider only admissible evidence when ruling on a motion for summary judgment. Beyene v. Coleman Sec. Services, Inc. , 854 F.2d 1179, 1181 (9th Cir. 1988). Authentication is a condition precedent to admissibility. Id . at 1182 (citing Fed.R.Evid. 901(a)). To properly authenticate a piece of evidence, its proponent must lay a foundation to support a finding that the document is what the proponent claims it to be. Id.
Brewer has not laid an adequate foundation for the Worden report. The report purports to be a "Timeline of Events and Identity of Most of the Individuals Responsible for the False Arrest, False Imprisonment and Wrongful Conviction of Joshua Brewer." (Glass Decl. Ex. 3, at 2). It consists of eight typed pages with the name "Carl F. Worden" typed at the bottom of the final page. (Glass Decl. Ex. 3, at 9). Brewer introduces the report through the declaration of his counsel, who calls it a "true copy of Investigator Carl Worden's report." (Glass Decl., at 2). However, as the Ninth Circuit made clear in United States v. Dibble , 429 F.2d 598, 602 (9th Cir. 1970):
A writing is not authenticated simply by attaching it to an affidavit, even if the writing appears on its face to have originated from some governmental agency and the affiant is a government official. The foundation is laid for receiving a document in evidence by the testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document and, where appropriate, its delivery.
The report and declaration clearly do not meet this standard.
Even if the report had been properly authenticated, the court could not consider it. The report is hearsay: an out-of-court statement offered for the truth of the matter asserted. Fed.R.Evid. 801(c). "[H]earsay is inadmissible unless it is defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay exception under Rules 803, 804 or 807." Orr v. Bank of Am., NT & SA , 285 F.3d 764, 778 (9th Cir. 2002). Brewer has not attempted to establish that the report falls under any of these Rules' protection. For these reasons, the court will not consider Worden's report when ruling on Defendants' motions.
No admissible evidence has been presented to dispute the ...