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Sharkey v. Humphreys County

United States District Court, N.D. Mississippi, Greenville Division

January 8, 2020

JAMES ARTHUR SHARKEY PLAINTIFF
v.
HUMPHREYS COUNTY, MISSISSIPPI; et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         Before the Court is Sean Williams' second motion for summary judgment. Doc. #27.

         I

         Procedural History

         On 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 asserts state and federal claims based on allegations of an 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.

         On 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.

         After Sharkey's counsel was granted leave to withdraw, Judge Virden directed Sharkey to inform the Court whether he intended to proceed pro se. 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 Williams' summary judgment motion with medical records and a series of unsworn declarations prepared by himself and three alleged witnesses to his arrest-Dorothy Kersh (Sharkey's sister), Eddie Earl Smith (Sharkey's brother), and Charles Sharkey (Sharkey's brother). Docs. #22, #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 response.

         On March 25, 2019, the Court, noting that Williams did not challenge the admissibility of the unsworn declarations, found 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.

         Williams filed a second motion for summary judgment on April 8, 2019. Doc. #27. In seeking summary judgment, Williams specifically challenges the admissibility of the unsworn declarations. Doc. #28 at 10. Sharkey filed an untimely response to the motion for summary judgment on April 29, 2019. Doc. #29. Williams filed an untimely reply on May 13, 2019.[1] Doc. #31.

         II

         Summary Judgment Standard

         A court may enter summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (cleaned up).

         The “party seeking summary judgment always bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Id. (alterations omitted). When the movant would not bear the burden of persuasion at trial, he may satisfy his initial summary judgment burden “by pointing out that the record contains no support for the non-moving party's claim.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (quoting Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002)). If the moving party satisfies his initial burden, the nonmovant “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321 (alterations omitted).

         III

         Unsworn Declarations

         Federal 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.[2]

         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, “[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56 advisory committee's note to 2010 amendment.

         In his motion for summary judgment, Williams argues that “Sharkey cannot show that the[] statements [in the unsworn declarations] could be offered in a form admissible at trial.” Doc. #28 at 10. Specifically, Williams contends he “has no reason to believe that the statements were actually written by the alleged signatories.”[3] Id. Sharkey, in his response, states that he intends “to reserve the unsworn testimony for trial purposes.” Doc. #29 at 2.

         In considering the expected admissibility of a hearsay statement, such as an unsworn declaration introduced for the truth of the matter asserted, [4] a “court should be free to ask the plaintiff what reason she has for believing that [the declarant] will in fact be available to testify at trial [and the] reasons for not obtaining sworn statements or sworn testimony from [the declarant] at this time.” 11 Moore's Federal Practice - Civil § 56.91. “Depending on the circumstances, the failure to secure sworn statements at the summary-judgment stage-or to confirm that the witnesses ...


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