Davis v. Hernandez

• Decision Date: 17 August 2015
• Docket Number: No. 14–10040.,14–10040.
• Citation: 798 F.3d 290
• Parties: Grady Allen DAVIS, Plaintiff–Appellant v. DSO F. HERNANDEZ; DSO Cody Hill, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

798 F.3d 290

Grady Allen DAVIS, Plaintiff–Appellant

v.DSO F. HERNANDEZ; DSO Cody Hill, Defendants–Appellees.

No. 14–10040.

United States Court of Appeals, Fifth Circuit.

Aug. 17, 2015.

Grady Davis, Beeville, TX, pro se.

Tammy Jean Ardolf, Assistant District Attorney, District Attorney's Office, Dallas, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

Opinion

JAMES L. DENNIS, Circuit Judge:

Grady Allen Davis is a Texas inmate who claims in this case that jail staff used excessive force against him, causing him injury and violating his constitutional rights. The district court granted summary judgment to the defendants because Davis failed to satisfy the statutory prerequisite under the Prison Litigation Reform Act of exhausting available administrative remedies prior to filing suit. We hold that, because there is evidence in the record that jail staff misled Davis as to the jail's grievance procedures and there is no evidence that Davis knew or reasonably should have known the correct procedures, summary judgment should not have been granted. We therefore reverse and remand.

I.

The jail in Dallas County, Texas, where Davis was detained during the time relevant to this case, sets out its grievance procedures in an inmate handbook, which is in the record. According to the handbook, there are two steps in the grievance process. First, an inmate must file a written grievance with jail staff. Second, if the initial decision is adverse to the inmate, he is afforded an appeal.

The evidence is undisputed that Davis filed an initial grievance but did not file an appeal. That is because, as he stated in opposition to summary judgment, he was unaware that the jail's grievance process had a second step. He says that after his grievance was denied, he asked jail staff whether the grievance process has a second step and was told that it doesn't. Therefore, believing that he had exhausted the procedures, he filed this suit.

In the court below, the magistrate judge issued a report recommending that the defendants be granted summary judgment because Davis did not exhaust available grievance procedures. Among other things, the magistrate judge stated that, because Davis did not declare under penalty of perjury that the factual allegations he made in opposition to summary judgment (i.e., about jail staff telling him that there wasn't a second step in the grievance process) were true and correct, his allegations could not be considered as evidence. See, e.g., Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir.1991) (unsworn testimony is not competent summary judgment evidence); but see 28 U.S.C. § 1746 (unsworn testimony is competent summary judgment evidence if declared under penalty of perjury to be true and correct).¹

Davis objected to the magistrate judge's report. In his objections, he reasserted the same factual allegations he made in opposition to summary judgment (i.e., that jail staff misled him) but this time declared under penalty of perjury that the testimony was true and correct.

The district court overruled the objections, adopted the magistrate judge's recommendation, granted summary judgment to the defendants, and dismissed the case with prejudice. The court, apparently mistakenly, stated that Davis had not introduced “any competent summary judgment evidence.” The court did not acknowledge that Davis, on objection to the magistrate judge's report, reiterated his testimony while declaring it under penalty of perjury to be true and correct.

This appeal followed.

II.

A.

We review the district court's grant of summary judgment de novo. Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304 (5th Cir.2010). To decide whether summary judgment is proper here, we must, as a threshold matter, determine what evidence in the record is to be considered. Of course, as a general matter, the competent evidence of the summary judgment nonmovant is to be accepted and credited. Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam). But here, because the testimony that Davis initially offered in opposition to summary judgment was neither sworn nor declared under penalty of perjury to be true and correct, it was not competent evidence. Once Davis reiterated his testimony on objection to the magistrate judge's report and declared under penalty of perjury that it was true and correct, it became competent evidence at that point. Had Davis initially submitted the evidence in competent form, there is no question that the court would have had to consider it. See Cantwell v. Sterling, 788 F.3d 507, 507 n. 1 (5th Cir.2015) (per curiam). However, because he did not submit the evidence in competent form until he objected to the magistrate judge's report, we must now determine whether it should still be considered.

In this circuit, when objecting to a magistrate judge's report and recommendation on summary judgment, litigants may submit additional evidence for the district court's de novo review. This court held in Freeman v. Bexar County, 142 F.3d 848, 852–53 (5th Cir.1998), though, that the district court is not necessarily required to accept the new evidence. Rather, the district court has discretion to determine whether, in light of all pertinent circumstances, the new evidence should be accepted. Id. See also Performance Autoplex II Ltd. v. Mid–Continent Cas. Co., 322 F.3d 847, 862 (5th Cir.2003) (per curiam) (applying Freeman ).

Here, the district court did not exercise its discretion under Freeman to decline to consider the evidence Davis submitted on objection to the magistrate judge's report. Instead, the district court erroneously believed that there was simply not any competent evidence from Davis in the record. We could, therefore, vacate the district court's summary judgment and remand the case with instructions that the district court decide in the first instance whether to accept the new evidence. Cf. Freeman, 142 F.3d at 853 (“Because the district court here mistakenly concluded that he had no discretion to consider additional evidence, we must reverse and remand for his reconsideration in light of this opinion.”). We will not do so, however, because, for the reasons that follow, we conclude that the circumstances of this case are such that it would be an abuse of discretion to exclude the evidence from consideration.

First, importantly, Davis is pro se, and federal courts, this one included, have a “traditional disposition of leniency toward pro se litigants.” Spotville v. Cain, 149 F.3d 374, 377 (5th Cir.1998) (per curiam); see also, e.g., Hulsey v. State, 929 F.2d 168, 171 (5th Cir.1991) (“The district court was appropriately lenient with Hulsey because of his status as a pro se plaintiff.”). Of course, this is not to say that pro se plaintiffs don't have to submit competent evidence to avoid summary judgment, because they do. Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980) (per curiam) (“Although pro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys, we have never allowed such litigants to oppose summary judgments by the use of unsworn materials.”). But, where the law affords courts discretion as to how a particular rule is to be applied, courts must exercise such discretion with leniency towards unrepresented parties. Indeed, the Ninth Circuit, which follows our Freeman rule of discretion for evidence submitted on objection to a magistrate judge's report, see United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000), has held in several cases that it would be an abuse of discretion to exclude a pro se litigant's new evidence. Jones v. Blanas, 393 F.3d 918, 935 (9th Cir.2004) (“[G]iven the circumstances under which this evidence was offered—a pro se plaintiff, ignorant of the law, offering crucial facts as soon as he understood what was necessary to prevent summary judgment against him—it would have been an abuse of discretion for the district court not to consider the evidence.”); Brown v. Roe, 279 F.3d 742, 745 (9th Cir.2002) ; Johnson v. Gonzalez, 520 Fed.Appx. 573, 574 (9th Cir.2013) (unpublished). The fact that Davis is pro se weighs heavily in favor of accepting his evidence submitted on objection to the magistrate judge's report. Accord Barker v. Norman, 651 F.2d 1107, 1128–29 (5th Cir.1981) (holding that the district court abused its discretion when it granted summary judgment without affording pro se party an opportunity to correct an evidentiary deficiency).

Second, relatedly, we note that although Davis did not initially satisfy 28 U.S.C. § 1746 when he opposed summary judgment, he came close. The statute requires an attestation that is “substantially” in the prescribed form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” Davis offered to take a polygraph examination to prove that his testimony was truthful, which we think suffices to declare that his testimony is true and correct even though he didn't use the statute's favored words. Davis did not so declare under penalty of perjury, though. This is a violation, but should not be an irreparable one. When a violation of this nature is committed by an unrepresented litigant who corrects the error promptly upon learning of it, as did Davis, there is an especially compelling case for the court to exercise its discretion to excuse the error. See Gordon, 622 F.2d at 123 (“[P]ro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys....”); Balistreri v. Pacifica Police Dep't,

901 F.2d 696, 699 (9th Cir.1988) (unpublished) (“This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural...