United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE.
the Court in this civil rights action is Sean Williams'
second motion for summary judgment, Doc. #27; “James
Arthur Sharkey's Second Motion for the Right to
Confrontation and Motion to Strike Deputy Williams'
Second Motion for Qualified Immunity and for His Summary
Judgment, ” Doc. #34; and Williams' motion to
strike or deny Sharkey's motion, Doc. #35.
February 9, 2018, James Arthur Sharkey, with the assistance
of counsel, filed a complaint in the United States District
Court for the Northern District of Mississippi against (1)
Humphreys County, Mississippi; (2) J.D. Roseman, in his
individual capacity and official capacity as sheriff of
Humphreys County; and (3) Sean Williams, in his individual
capacity and official capacity as deputy sheriff of Humphreys
County. Doc. #1. The complaint alleges state and federal
claims arising from an allegedly unlawful arrest of Sharkey
by Williams which included the use of excessive force.
Id. at 2-5. The defendants jointly answered the
complaint on March 5, 2018. Doc. #8.
April 9, 2018, Williams, asserting the defense of qualified
immunity, filed a motion seeking summary judgment on the
claims brought against him in his individual capacity. Doc.
#12. That day, United States Magistrate Judge Jane M. Virden
stayed the case pending a decision on the summary judgment
motion. Doc. #14. Three days later, Sharkey's counsel
moved to withdraw due to “a fundamental difference
between himself and … Sharkey.” Doc. #15.
Sharkey's counsel was granted leave to withdraw, Judge
Virden directed Sharkey to inform the Court whether he
intended to proceed pro se with this case. Doc. #21. On or
about July 11, 2018, Sharkey filed a document dated July 6,
2018, which both stated that he is proceeding pro se and
appeared to respond to the motion for summary judgment with
medical records and a series of unsworn declarations prepared
by himself and three alleged witnesses to his arrest at
issue-Dorothy Kersh, Eddie Earl Smith, and Charles Sharkey.
Doc. #22; Doc. #22-1. On October 1, 2018, the Court granted
Sharkey leave to file a formal response to the motion for
summary judgment. Doc. #23. Sharkey did not file a formal
March 25, 2019, the Court, noting that Williams did not
challenge the admissibility of the unsworn declarations,
found that the facts in the declarations created genuine
issues of material fact. Doc. #26. However, because Sharkey
submitted the documents prior to having been granted leave to
do so and because the nature of the documents were unclear,
the Court declined to consider the documents before giving
Williams an opportunity to lodge an objection to their
admissibility. Id. at 6-7. Accordingly, the Court
denied the motion for summary judgment without prejudice.
Id. at 7.
filed a second motion for summary judgment on April 8, 2019.
Doc. #27. After the motion was fully briefed,  Sharkey filed
“James Arthur Sharkey's Second Motion for the Right
to Confrontation and Motion to Strike Deputy Williams'
Second Motion for Qualified Immunity and for His Summary
Judgment.” Doc. #34. Two weeks later, Williams moved
the Court to strike Sharkey's motion or, in the
alternative, to deny it. Doc. #35. Sharkey did not respond to
Sharkey's Motion to Confront and Williams' Motion
motion is largely nonsensical but appears to seek a court
order requiring the production of a 911 call of the incident
in question based on his “rights for confrontation,
… freedom of press, [and] right to a speedy trial to
express [his case] to the nation ….” Doc. #34 at
not a criminal action so neither the right to confrontation
nor the right to a speedy trial applies. See United
States v. Williams, 447 F.2d 1285, 1291 (5th Cir. 1971)
(“[T]he confrontation clause has applicability only in
criminal cases ….”); United States v.
Commey, 452 Fed.Appx. 21, 23 (2d Cir. 2011)
(“Commey relies on the Speedy Trial Clause of the Sixth
Amendment, which is, however, inapplicable to this civil
proceeding.”). And, the First Amendment's press
rights do “not guarantee … a constitutional
right of special access to information not available to the
public generally.” Garrett v. Estelle, 556
F.2d 1274, 1277 (5th Cir. 1977). There is no indication the
911 call is available to the public generally. Thus, none of
the rights invoked in Sharkey's motion justify a court
order directing production of the 911 call.
extent Sharkey's motion may be construed as seeking
simple discovery, absent circumstances inapplicable here,
“[a] party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f)
….” Fed.R.Civ.P. 26(d)(1). No. such conference
has occurred in this case. More, discovery is currently
stayed as a result of the pending motion for summary
judgment, which included an assertion of entitlement to
qualified immunity. See Doc. #30. Accordingly,
Sharkey's motion will be denied. Williams' motion to
strike or deny Sharkey's motion will be denied as moot.
Rule of Civil Procedure 56(c) “permits a party to
support or dispute summary judgment through unsworn
declarations, provided their contents can be presented in
admissible form at trial.” Patel v. Tex. Tech.
Univ., 941 F.3d 743, 746 (5th Cir. 2019). “In
other words, the party submitting the material must be able
to demonstrate how it will be possible to introduce the
content or substance of the material at trial.” 11
Moore's Federal Practice - Civil §
56.91.This is so because, “[i]f the
substance cannot be put into an admissible form, the material
can have no bearing on whether a trial is necessary, which is
the ultimate determination to be made by the court in ruling
on a motion for summary judgment.” Id. Where a
party objects to summary judgment evidence, ...