United States District Court, D. Oregon, Medford Division
REPORT AND RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
Plaintiff Travis Rodrigues ("Plaintiff') brings this action against Jackson County Deputies Zornes ("Deputy Zornes") and Merck ("Deputy Merck") (collectively, "Defendants) for injuries he allegedly sustained while detained in the Jackson County Jail. Plaintiff's Second Amended Complaint (#68) asserts claims of excessive force, battery, and negligence.
Currently before the Court are the parties' cross motions for summary judgment (#36, #40, #69). Defendants ask the court to grant judgment in its favor on all claims. The scope of Plaintiffs motion is less clear. It contradictorily states "plaintiff Travis Rodrigues hereby moves the Court for partial summary judgment as to liability on all his state claims." Pl.'s Mot., at I (emphasis added). Because Plaintiff's memorandum in support of his motion focuses strictly on his claims of negligence and battery, the Court assumes his motion is limited to those state law claims. For the reasons set forth below, the Court recommends that Defendants' motion (#36, #69) be GRANTED IN PART and DENIED IN PART and Plaintiff's motion (#40) be DENIED in its entirety.
PRELIMINARY EVIDENTIARY MATTERS
Defendants raise several evidentiary objections to Plaintiff's motion for summary judgment and Plaintiff's opposition to Defendants' motion.
I. Statement of Facts in Plaintiff's Motion for Summary Judgment
Local Rule 56-1 (a) requires parties to cite factual assertions to the record in their summary judgment briefing. The Court will disregard Plaintiff's summation of the facts to the extent that it fails to satisfy this rule.
II. Plaintiff's Counsel's Declarations
FED. R. Civ. P. 56(c)(4) requires a declaration submitted in support of or opposition to a motion for summary judgment to be made on personal knowledge, set forth facts that would be admissible in evidence, and show the declarant is competent to testify on the matters addressed therein. Plaintiff improperly attached booking photos and medical records as exhibits to the declarations of Plaintiff's counsel. Plaintiff's counsel has no personal knowledge of whether the items are true and correct copies of what he purports them to be. Thus, the exhibits are not authenticated or admissible. The Court will not consider them when reviewing the pending summary judgment motions. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
III. Declarations of Alvarez and Rodrigues
28 U.S.C. § 1746(1) requires a person submitting a declaration to sign it, date it, and swear "under penalty of perjury under the laws of the United States of America that [its contents are] true and correct." The law permits some flexibility in the wording of the oath. It requires declarations to contain statements in "substantially" the same form as the one quoted above. 28 U.S.C. § 1746. Defendants assert the declarations of Alvarez and Rodrigues, proffered by Plaintiff, are defective and invalid. Specifically, Defendants note that the declarations' oaths do not include the phrase "true and correct" and thus assert they violate 28 USC § 1746. However, both declarations state that they are made "under penalty of perjury" and include the declarant's dated signatures. The Court is satisfied these declarations are sworn and, accordingly, will consider them in its recommendation on the pending motions for summary judgment. See LeBoeuf, Lamb, Greene & MacRae. L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) ("Although the letter does not contain the exact language of Section 1746 nor state that the contents are "true and correct, " it substantially complies with these statutory requirements, which is all that this Section requires.").
Plaintiff was arrested for an outstanding State Parole Board Warrant and processed into the Jackson County Jail on October 12, 2011. Zornes Decl. ¶¶ 1-2. The Jail held Plaintiff pursuant to a retainer pending his relocation to face charges in Washington County. Zornes Decl. ¶ 2. Plaintiff was processed out of the Jackson County Jail and transported to Washington County on October 18, 2011. Zornes Decl. ¶ 2. Plaintiff had no visible facial bruising when he was booked into the Jackson County Jail but he did when he left. Stipulated at Oral Argument (#73).
Every night, the Jail's inmates are subject to "lock down, " meaning they must retire to their beds. Zornes Decl. ¶ 5. The parties disagree regarding the timing of "lock down." Defendants assert it occurred sometime between 11:00 and 11:45 p.m. Zornes Decl. ¶ 5. Plaintiff says the Jail ...