United States District Court, N.D. Texas
CHRISTOPHER THOMAS WOOLVERTON in his Individual Capacity and as Personal Representative of the Estate of CHRISTOPHER DOUGLAS WOOLVERTON, Deceased, PLAINTIFF,
BRAD LIVINGSTON, et al, DEFENDANTS.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO STRIKE
LOU ROBINSON, SENIOR UNITED STATES DISTRICT JUDGE
the Court is Defendants' motion, filed November 22, 2017,
to strike certain exhibits offered by the Plaintiff in
support of his opposition to Defendants' motions for
summary judgment, and the response filed by Plaintiff.
Defendants' motion to strike is granted in part and
denied in part as follows.
a Rule 56 motion, the Supreme Court has stated that
"where the non-moving party has presented evidence to
support the essential elements of its claims but that
evidence is merely colorable, or is not significantly
probative, summary judgement may be granted."
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50,
106 S.Ct. at 2510-11 (citations omitted). Legal conclusions
and general allegations do not satisfy that burden.
Id., 477 U.S. at 250, 106 S.Ct. at 2511; Lechuga
v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th
Cir. 1992)(conclusory statements in affidavits do not provide
facts that will counter summary judgment evidence, and
testimony based on conjecture alone is insufficient to raise
an issue to defeat summary judgment); Galindo v.
Precision Am. Corp., 754F.2d 1212, 1216 (5th Cir. 198
5)(party and non-party affidavits setting forth speculation
or only ultimate or conclusory facts are insufficient to
either support or defeat a motion for summary judgment).
bare allegations of the pleadings will not suffice" to
show the existence of a genuine issue of material fact.
Honore v. Douglas, 833 F.2d at 567. Accord
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex
Corp., 477 U.S. at 323-25, 106 S.Ct. at 2553. "The
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgement; the requirement is
that there be no genuine issue of material
fact." Liberty Lobby, 477 U.S. at 247-48, 106
S.Ct. at 2510 (emphasis in original). The nonmoving party
must designate specific facts showing there exists a genuine
issue of material fact on those elements sought to be negated
by the movant. Id.; Celotex Corp., supra, 477 U.S.
at 322-23, 106 S.Ct. at 2553; Fed. R. Civ. Pro. 56 (e). Legal
conclusions and general allegations do not satisfy this
burden. Fontenot v. Upjohn Co., 780 F.2d 1190,
1195-96 (5th Cir. 1986). Accord Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986)(to defeat a motion for summary judgment,
Rule 56 requires the non-moving party to set forth specific
facts sufficient to establish that there is a genuine issue
for trial). Mere allegations or speculation of the existence
of a dispute over material facts is not sufficient to defeat
a motion for summary judgment; the evidence must show that a
reasonable jury could return a verdict for the non-moving
party. Id., 477U.S. at 247-48, 106 S.Ct. at 2510.
conclusory assertion is not enough evidence to raise a
genuine issue of material fact. See Lechuga v. Southern
Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir.
1992)(conclusory statements do not provide facts that will
counter summary judgment evidence, and testimony based on
conjecture alone is insufficient to raise an issue to defeat
summary judgment); Galindo v. Precision Am. Corp.,
754 F.2d 1212, 1216 (5th Cir. 1985)(party affidavits setting
forth only ultimate or conclusory facts are insufficient to
either support or defeat a motion for summary judgment).
Similarly, it is insufficient for the non-movant to speculate
or conjecture about the facts or to argue in the abstract
that the legal theory involved in the case necessarily
encompasses genuine factual questions. See, e.g. Ruiz v.
Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir.
1994)(speculation and conjecture not enough to raise a
genuine issue); Hibernia Nat'l Bank v. Carner,
997 F.2d 94 (5th Cir. 1993); Pennington v. Vistron
Corp., 876 F.2d 414, 426 (5th Cir. 1989)(must be a
showing of fact). See, e.g. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 2510, 89 L.Ed.2d 538 (1986)(a genuine dispute requires
more than metaphysical doubt).
evidence may include sworn deposition testimony, filed
admissions, sworn answers to interrogatories, sworn
affidavits made on personal knowledge that set forth
admissible facts (not legal or ultimate conclusions or
affidavits made upon "opinion and belief), or verified
pleadings. See Nissho-Iwai American Corp. v. Kline,
845 F.2d 1300, 1306 (5th Cir. 1988)(must be sworn affidavit,
or made under penalty of perjury, or verified form of
evidence); Larry v. White, 929 F.2d 206, 210 (5th
Cir. 1991)(may be verified evidence). But cf.
Celotex, 477 U.S. at 319, 324, 106 S.Ct. at 2551, 2553
(regarding heresay evidence, the non-moving party is not
required "to produce evidence in a form that would be
admissible at trial in order to avoid summary
judgment.") with Pan-Islamic Trade Corp. v. Exxon
Corp., 632 F.2d 539, 556-57 (5th Cir. 1980), cert,
denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236
(1981)(heresay evidence not competent proof in a summary
judgment proceeding where offered to establish the truth of
the matters asserted therein).
upon these authorities, the Court grants Defendants'
motion to strike insofar as Plaintiff relies upon statements
set forth in letters of Clements Unit inmates to counsel that
contain: 1) hearsay and hearsay within hearsay, 2)
speculation, 3) mere conjecture about facts, 4) conclusory
statements, 5) legal or ultimate factual conclusions made
upon unfounded opinions or beliefs, and 6) statements that
are not significantly probative because they do not show any
factual basis for how those facts can be known by the
prisoner stating those alleged facts, especially given the
physical configuration of the Administrative Segregation
prison cells as clearly shown in the October 22, 2013 video
which is in evidence in this case.
motion is denied insofar as it seeks to strike entire
statements because they are unsworn, based upon Plaintiffs
express representation that counsel intends to call as
witnesses at trial every one of the Clements Unit inmates
whose letters to counsel are contained in the appendix filed
in support of Plaintiff s response to Defendants' summary
judgment motion, which are the letters Defendants seek to
strike in their entirety. See Lee vs. Offshore Logistical
& Transp., LLC, 859 F.3rd 353, 354 (5th
Cir. 2017)(unsworn statements may be competent summary
judgment evidence even if they are presented in a form that
would not be admissible form at trial).
of the Defendants' motion is not to be construed as a
ruling that any of the letters or any of the statements
contained therein which are at issue are admissible at trial.
The Court will rule upon the admissibility of all testimony
during trial, should the witness be called to testify. Denial
of this motion is not to be construed as a ruling that any
proposed or anticipated trial testimony of a witness or
exhibit is, or is not, admissible. The Court will consider
the admissibility of trial testimony if and when the witness
is called, his testimony is actually offered, and such offer
is timely objected to by a Defendant. ...