Malone v. Becher, Cause No. NA 01-101-C H/H (S.D. Ind. 8/29/2003)

• Court: U.S. District Court — Southern District of Indiana
• Writing for the Court: David Hamilton
• Decision Date: 29 August 2003
• Docket Number: Cause No. NA 01-101-C H/H.
• Citation: Malone v. Becher, Cause No. NA 01-101-C H/H (S.D. Ind. 8/29/2003) (S.D. Ind. 2003)
• Parties: KENNETH MALONE, individually and on behalf of a class of individuals similarly situated; LARRY S. DENTON, SR., individually and on behalf of a class of individuals similarly situated; and JAMES ROBERT BROWN, individually and on behalf of a class of individuals similarly situated, Plaintiffs, v. SHERIFF MICHAEL BECHER, individually, and officially as SHERIFF OF CLARK COUNTY; et al., Defendants.

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KENNETH MALONE, individually and on behalf of a class of individuals similarly situated; LARRY S. DENTON, SR., individually and on behalf of a class of individuals similarly situated; and JAMES ROBERT BROWN, individually and on behalf of a class of individuals similarly situated, Plaintiffs, v. SHERIFF MICHAEL BECHER, individually, and officially as SHERIFF OF CLARK COUNTY; et al., Defendants.

Cause No. NA 01-101-C H/H.

United States District Court, S.D. Indiana, New Albany Division.

August 29, 2003

ENTRY ON MOTION FOR SUMMARY JUDGMENT

DAVID HAMILTON, District Judge.

Named plaintiffs Kenneth Malone, Larry S. Denton, Sr., and James Robert Brown are all former inmates of the Clark County Jail. Plaintiffs have sued several Clark County officials and governing bodies alleging that severe under-staffing and inmate overcrowding created jail conditions that violated their constitutional rights as inmates. In addition to both state and federal constitutional claims, the plaintiffs have alleged several state tort claims. Plaintiffs seek only damages as relief.

The court previously certified two plaintiff classes. Class I, represented by plaintiffs Malone and Denton, is defined as those "individuals who were incarcerated at any time in the Clark County Jail after March 26, 1999, for 24 consecutive hours or more, but who were not incarcerated on March 26, 2001." Class I is the class of plaintiffs with claims arising under federal law. Those claims would be subject to the physical injury requirement of 42 U.S.C. § 1997e(e) if the class members had been prisoners when this action was filed on March 26, 2001. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (§ 1997e(e) does not apply to claims arising in custody if plaintiff was no longer a prisoner when action was filed). Class II, represented by plaintiff Brown, is defined as those "individuals who were incarcerated at any time after September 28, 2000, a date 180 days prior to the filing of the first notice of tort claim, for 24 consecutive hours or more." Class II is the class of plaintiffs with claims arising under state law that are subject to the notice requirement of the Indiana Tort Claims Act.

The defendants are Clark County Sheriff Michael Becher, the County Council of Clark County and all of its members from approximately 1999 to the present, and the Board of Commissioners of Clark County and all of its members from approximately 1999 to the present. All defendants are being sued in their individual and official capacities. Defendants have moved for summary judgment on all claims, and the motion raises a host of issues. As explained below, defendants' motion for summary judgment is granted. On the core issues concerning conditions at the Clark County Jail, plaintiffs have not come forward with evidence that would allow a reasonable jury to find that conditions were so poor as to violate minimal federal constitutional standards or that defendants acted with deliberate indifference to any condition that violated federal constitutional standards and caused any injury to any plaintiff.

The court is not saying that conditions at the Clark County Jail are desirable, wise, or prudent, or even that they meet the expected standards for Indiana jails. The evidence in this case nevertheless would not support an award of damages to any plaintiff.

I. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving parties entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving parties must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing side.

II. Preliminary Matters

Evidence is admissible for purposes of summary judgment to the same extent that such evidence is admissible at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial"). Defendants have objected to virtually all of plaintiffs' evidentiary submissions. Plaintiffs have not responded to the objections. In a footnote to their statement of material facts, plaintiffs wrote: "should Defendants raise an issue about the admissibility of any of these exhibits, Plaintiffs ask for leave of court to supplement this statement with whatever is necessary to satisfy Defendants' objection." Pl. Statement of Material Facts at 1 n. 1. Plaintiffs' opportunity to respond to the objections is found under Local Rule 56.1(d), and not by order of this court. No leave of court was needed, and no response was filed. The court does not prepare preliminary or draft rulings on motions for summary judgment, and then invite the losing parties to supplement their submissions after they realize what they needed to submit. The time for plaintiffs to submit admissible evidence was in their first response to the motion for summary judgment, and no later than a surreply brief authorized by Local Rule 56.1(d) to respond to evidentiary objections.

A. Exhibits A-H, M, R, and S

Defendants object to Plaintiffs' Exhibits A-H, M, R, and S on the grounds that they have not been properly authenticated. Exhibits A-H all purport to be jail inspection reports with cover letters. Exhibit M appears to be an e-mail or letter from a jail inspector to one of plaintiffs' attorneys, but it is not sworn and has no affidavit or other document even authenticating it. Exhibit R appears to be a summary of grievances filed at the Clark County Jail, though it is not clear who compiled the summary or what data was used. Exhibit S appears to be a similar summary concerning maintenance reports, and it presents the same problems as Exhibit R. Both Exhibit R and Exhibit S are in the form of charts. It does not appear that the actual evidence summarized has been filed with the court.

With respect to Exhibits A-H, even if plaintiffs might easily have authenticated the documents and established the foundation for a hearsay exception, plaintiffs have not done so. On this record, defendants' objections must be sustained as to the entire reports. Exhibit M, in addition to not being authenticated, is also being offered for the truth of the matters asserted and so is hearsay. Defendants' objection to Exhibit M is also sustained.

Defendants' objections to Exhibits R and S are also sustained. Rule 1006 of the Federal Rules of Evidence permits the use of summaries, but the proponent must still establish a foundation for them. Needham v. White Laboratories, Inc., 639 F.2d 394, 403 (7th Cir. 1981) (reversing verdict based on summaries lacking a foundation). In this case, plaintiffs have not shown that they complied with Rule 1006 by authenticating the summaries or by showing that the underlying documentation is admissible as evidence. In any event, the summaries do not contain any evidence that would defeat summary judgment.

B. Exhibits I-K, N, O, and P

Defendants object to Plaintiffs' Exhibits I-K and N-P on hearsay grounds. Exhibits I-K and N-P appear to be copies of newspaper articles attributing various statements to Sheriff Becher and others. At least one article concerns this class action. See Pl. Ex. P. As defendants correctly point out, the newspaper articles are self-authenticating under Rule 902(6), but they also contain hearsay, including the reporters' statements about the various statements attributed to defendants. Direct evidence that a defendant made a statement would of course avoid the hearsay problem because such statements could be used as admissions, but plaintiffs have not taken that extra step. Defendants' hearsay objections to Exhibits I-K and N-P are sustained.

C. Exhibit L

Plaintiffs have also submitted the affidavit of William Smith, which was prepared for a separate case before this court, Smith v. Becher, Cause No. NA 01-88-C. The dates of Smith's confinement indicate that he is a member of plaintiff Class II but not Class I.

Defendants object to the Smith affidavit on the ground that it is not based on personal knowledge, citing Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). In Drake, the Seventh Circuit stated that "`Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'" 134 F.3d at 887 (affirming district court's exclusion of portions of conclusory affidavit), citing Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir. 1983). Smith's affidavit states that he was incarcerated at the Clark County Jail from January 28, 2000 until December 21, 2000, and from January 22, 2001 until April 17, 2001. Smith Aff. ¶ 1. The rest of the affidavit contains conclusory statements such as "because of the overcrowding, a cell boss system has developed," and "people who should be segregated are not because of the overcrowding." Id., ¶¶ 8, 10. "These are exactly the type of conclusory allegations that Rule 56 counsels should be disregarded on summary judgment." Drake, 134 F.3d at 887. The affidavit remains in the record, but it simply is not...