Cortez v. Stubbs

2 DISTRICT OF NEVADA — 3 — MOISES JOSUE CORTEZ, Case No. 3:21-cv-00316-ART-CLB — 4 — Plaintiff, ORDER 5 v. 6 BRANDON STUBBS, et al., 7 Defendants. — 8 — 9 I. SUMMARY 10 Plaintiff Moises Josue Cortez brings this action under 42 U.S.C. § 1983 11 against Defendants Shane Brown, Jesse Cox, Christopher Davis, David 12 Drummond, Jose Guzman, Sean Johnson, Macelen Kleer, Chet Rigney, William 13 Ruebart, Angela Searle, Brandon Stubbs, and James Weiland. Plaintiff alleges 14 that Defendants used excessive force against him at Ely State Prison in violation 15 of his Eighth Amendment rights. Plaintiff also alleges that Defendants were 16 deliberately indifferent to his serious medical needs following the use of excessive 17 force in violation of his Eighth Amendment rights. Finally, Plaintiff alleges that 18 Defendants retaliated against him in violation of his First Amendment rights. 19 (ECF No. 33.) 20 Before the Court is a Report and Recommendation (“R&R” or 21 “Recommendation”) of United States Magistrate Judge Carla Baldwin (ECF No. 22 95), recommending the Court deny Defendants’ Motion for Summary Judgment 23 (ECF No. 66). Defendants filed an objection to the R&R (ECF No. 96 (“Objection”)), 24 to which Plaintiff responded (ECF No. 97). Because the Court agrees with Judge 25 Baldwin’s analysis as to Defendants’ Motion, the Court will adopt the R&R in full. 26 Accordingly, the Court will deny Defendants’ Motion for Summary Judgment. 27 II. BACKGROUND 28 The Court incorporates by reference Judge Baldwin’s recitation of the 2 the R&R. (ECF No. 95 at 2.) 3 III. LEGAL STANDARD 4 This Court “may accept, reject, or modify, in whole or in part, the findings 5 or recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). Where 6 a party timely objects to a magistrate judge’s report and recommendation, then 7 the Court is required to “make a de novo determination of those portions of the 8 [report and recommendation] to which objection is made.” Id. Where a party fails 9 to object to a magistrate judge’s recommendation, the Court is not required to 10 conduct “any review at all . . . of any issue that is not the subject of an objection.” 11 Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, — 12 — 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ 13 findings and recommendations is required if, but only if, one or both parties file 14 objections to the findings and recommendations.”) (emphasis in original); Fed. R. 15 Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only 16 satisfy itself that there is no clear error on the face of the record in order to accept 17 the recommendation.”). 18 Here, the Court’s review is de novo on the issues raised in Defendants’ 19 Objection. Those issues are Judge Baldwin’s finding that Defendants’ evidence is 20 inadmissible, and that Defendants are not entitled to qualified immunity. 21 IV. DISCUSSION 22 Judge Baldwin’s Recommendation is based on narrow grounds and can be 23 summarized simply: none of Defendants’ exhibits are certified or otherwise 24 authenticated in violation of Fed. R. Civ. P. 56, so they lack foundation and may 25 not be considered in support of their Motion for Summary Judgment. Defendants 26 have therefore failed to support their Motion with admissible evidence sufficient 27 to show that no genuine issues of triable fact exist. Thus, their Motion must be 28 denied. 2 Baldwin cites in the Recommendation, conceding that only admissible evidence 3 may be considered on a motion for summary judgment and that authentication 4 is a condition precedent to admissibility. Defendants argue that while the exhibits 5 lack authenticating declarations, the exhibits have been authenticated in other 6 ways, including because of their distinctive appearance, because Plaintiff relied 7 on the same documents in his Response to Defendants Motion for Summary 8 Judgment, because Plaintiff did not object to the exhibits’ authenticity, and 9 because Defendants attached authenticating declarations to their Objection. The 10 Court is not persuaded by Defendants’ arguments. 11 “[U]nauthenticated documents cannot be considered on a motion for 12 summary judgment . . . documents must be authenticated by and attached to an 13 affidavit that meets the requirements of [Rule] 56(e) and the affiant must be a 14 person through whom the exhibits could be admitted into evidence.” Canada v. 15 Blain's Helicopters, Inc., 831 F.2d 920 , 925 (9th Cir. 1987) (internal quotation 16 marks and citations omitted). “This court has consistently held that documents 17 which have not had a proper foundation laid to authenticate them cannot support 18 a motion for summary judgment.” Id. (citing Hamilton v. Keystone Tankship 19 Corp., 539 F.2d 684, 686 (9th Cir.1976); United States v. Dibble, 429 F.2d 598 , 20 601–02 (9th Cir.1970)). Because Defendants failed to attach their exhibits to an 21 authenticating affidavit, their exhibits are not admissible to support their Motion 22 for Summary Judgment. 23 Further, LR 7-2(g) states that “[a] party may not file supplemental 24 pleadings, briefs, authorities, or evidence without leave of court granted for good 25 cause. The judge may strike supplemental filings made without leave of court.” 26 Defendants have not requested leave of court for the authenticating affidavits it 27 attached to its Objection. The Court therefore strikes those affidavits and finds — 28 — 1 || that all of Defendants’ arguments for admissibility of the exhibits attached to 2 || their Motion for Summary Judgment fail. 3 Because their Motion for Summary Judgment lacks evidence, Defendants 4 || cannot succeed on their qualified immunity defense. Plaintiffs arguments that 5 || force was applied maliciously and sadistically, that ten months passed between 6 || his injuries and medical care, and that Defendants’ retaliatory actions chilled his 7 || First Amendment rights are all unrebutted by evidence. Each of those claims as 8 || alleged involves the violation of clearly established constitutional rights. Thus, 9 || Defendants’ qualified immunity defense fails. 10 || V. CONCLUSION 11 It is therefore ordered that Defendants’ Objection (ECF No. 96) to the Report 12 || and Recommendation of U.S. Magistrate Judge Carla Baldwin is overruled. The 13 || Report and Recommendation (ECF No. 95) is therefore adopted in full. 14 It is further ordered that Defendants’ Motion for Summary Judgment (ECF 15 || No. 66) is DENIED. 16 Pursuant to LR 16-5, the Court finds that it is appropriate to refer this case 17 || U.S. Magistrate Judge Carla Baldwin to conduct a settlement conference. The 18 || deadline for filing the joint pretrial order is extended until 30 days after the 19 || conclusion of the settlement conference. — 20 — 21 DATED THIS 29t day of March 2024. — 22 — 23 pad iden 24 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE — 25 — — 26 — — 27 — — 28 —