Miller v. Corrections Corp. of America
| Decision Date | 06 June 2005 |
| Docket Number | No. A03-266CVJWS.,A03-266CVJWS. |
| Citation | 375 F.Supp.2d 889 |
| Parties | Joseph MILLER, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Alaska |
At docket 46, defendant Corrections Corporation of America moves for summary judgment. This motion is opposed at docket 51. At docket 52, defendant moves to strike certain exhibits submitted by plaintiff in his opposition to the motion for summary judgment. This motion is opposed at docket 53. Oral argument has been requested on the motion for summary judgment. The court will hear oral argument on the motion for summary judgment only at 8:00 AM on June 17, 2005, in Courtroom 3. Counsel not resident in Anchorage may make arrangements to participate telephonically by contacting the court's case manager, Ms. Pam Richter[*] at least two business days in advance. Each side will be limited to 15 minutes.
This order sets out a preliminary decision with respect to the motion for summary judgment at docket 46. This order sets out the court's final disposition of the motion to strike at docket 52.
After hearing oral argument, the court may adopt some, all or none of the discussion in this order as the rationale for final disposition of the motion at docket 46. This order does NOT authorize the filing of any further papers. It is hoped that it will assist the parties to prepare for oral argument on the motion at docket 46.
Defendant and the State of Alaska had a contract which provided for the housing of Alaskan prisoners in Arizona facilities run by defendant. Plaintiff Joseph Miller was an Alaskan inmate housed in an Arizona prison run by defendant. While in prison, plaintiff underwent a routine medical examination and was advised that he needed to have a wisdom tooth extracted. On October 8, 2001, plaintiff was transported to Dr. George Deeb's office in Tucson, Arizona, for the extraction. During the extraction, plaintiff's jaw was broken, and he suffered nerve damage. The nerve damage has affected plaintiff's ability to speak. Plaintiff also continues to suffer pain and paresthesia.
Plaintiff commenced this action in state court on October 7, 2003. Plaintiff's complaint was subsequently removed to this court on the basis of diversity jurisdiction.1 Plaintiff's complaint alleges two causes of action. The first claim for relief is entitled "Failure and Refusal to Provide Appropriate and Necessary Medical and Therapeutic Specialized Care with Reasonable Promptitude."2 In this claim, plaintiff alleges that defendant "failed, refused and neglected to provide [him] with assistance of a trained speech therapist within a reasonable time" after his oral surgery.3 Plaintiff also alleges that defendant "failed, refused and neglected to allow [him] within a reasonable time to see a neurologist, despite an early recommendation for that consultation by" a prison physician.4 The parties disagree over whether plaintiff's first claim of relief asserts a medical malpractice claim or a negligence claim. Plaintiff's second claim for relief is entitled "Plaintiff as Third Party Beneficiary of the Contract Between the Defendants."5 In this claim, plaintiff alleges that he is a third-party beneficiary to the contract between defendant and the State of Alaska6 and that defendant breached "its contractual duty to provide adequate and appropriate medical care" to plaintiff while he was incarcerated in Arizona.7
Defendant previously moved for summary judgment on both of plaintiff's claims. The court denied defendant's original motion for summary judgment because defendant failed to brief the choice-of-law issue raised by the facts of this case.8 Defendant was given leave to file a renewed motion for summary judgment. Defendant's renewed motion for summary judgment is now ripe for disposition as is defendant's motion to strike.
Defendant moves to strike certain exhibits submitted by plaintiff in opposition to defendant's motion for summary judgment.9 Defendant's motion to strike is a one-page document, in which defendant makes cursory one-sentence arguments with no citation to the rules of evidence on which defendant relies, although defendant does provide some citations to the Federal Rules of Civil Procedure. The court would be tempted to deny defendant's motion to strike for failure to comply with Rule 7.1(a)(2), District of Alaska Local Rules,10 except that "[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment."11 The court must consider defendant's motion to strike, despite its deficiencies.
Defendant first complains that plaintiff failed to file a separate statement of facts as is required by Rule 56, Federal Rules of Civil Procedure. As plaintiff is quick to point out, Rule 56 does not require a separate statement of facts. The court presumes that the confusion over the separate statement of facts here is the result of defendant having counsel from Arizona. The local rules for the District of Arizona do require that a separate statement of facts be submitted with a motion for summary judgment.12 The local rules for the District of Alaska have no similar requirement.
Defendant next objects to the admissibility of three of plaintiff's exhibits submitted in opposition to the motion for summary judgment: 1) plaintiff's affidavit,13 2) an outpatient speech evaluation by Julie Gose,14 and 3) a letter dated April 2, 2004, from Darlene K. Batchelder.15
Defendant moves to strike plaintiff's affidavit because it lacks foundation and contains multiple hearsay comments. In its motion, defendant fails to identify the specific comments it believes are hearsay and fails to identify which portions of plaintiff's affidavit it believes lack foundation. Plaintiff responds that he does not understand what the basis is for defendant's bald assertions and contends that the information in his affidavit is based on his personal knowledge, as required by Rule 56(e), which provides that "[s]upporting and opposing affidavits shall be made on personal knowledge...."
In its reply, defendant finally refers to the specific paragraphs of plaintiff's affidavit which it seeks to strike. First, defendant objects to paragraph 5, which reads: 16 Defendant characterizes this as a "self-diagnosis" and argues that plaintiff, who does not profess to having a medical background, is not competent to testify about the extent of his injuries sustained during his oral surgery and about whether his injuries are permanent.
Plaintiff is competent to testify about the effects of his injury, i.e., the speech impediment, pain, and paresthesia, because such facts are based on his personal knowledge. Plaintiff is not competent to testify about the cause of his injury or whether his injury is permanent. These portions of paragraph 5 are stricken.
Defendant next seeks to strike paragraph 7, which reads:
Any requests for treatment had to be approved by the State of Alaska, and, in fact, a representative from the state of Alaska, Mel Henry, visited me in Arizona when I was incarcerated, twice. At the first visit he approved speech therapy. At the next visit, approximately 3 to 4 months later, Mr. Henry asked me how the speech therapy was going. I had to inform him that I had not been permitted to see a speech therapist, yet, by CADC.17
Defendant argues that this paragraph contains hearsay because it refers to statements made by Alaska Department of Corrections personnel.
Any questions asked or statements made by Henry would be inadmissible hearsay and are stricken. Plaintiff may, however, recount what he told Henry and the fact that Henry visited him since those are facts based on plaintiff's personal knowledge.
Defendant next objects to paragraph 8, which reads: "I was not permitted to see a speech therapist, by CADC, until approximately one year after the surgery."18 Defendant complains that the paragraph does not contain details about to whom plaintiff made the requests or about when the requests were made.
The lack of detail does not affect the admissibility of paragraph 8. This is a statement based on plaintiff's personal knowledge, and it is admissible.
Lastly, defendant seeks to strike paragraph 10, which reads:
CADC, its agents, servants and employees, failed, refused and neglected to allow me, within a reasonable time, to see a neurologist, despite an early recommendation for that consultation by a physician at CADC. This opportunity to see a neurologist, too, was not granted until approximately one year after the oral surgery was performed.19
Defendant argues that this paragraph should be stricken because it is a legal conclusion. To some extent, plaintiff does appear to be making legal conclusions here. Plaintiff uses words such as "neglect" and "within a reasonable time," which are words that may have legal connotations. Plaintiff may testify about facts within his personal knowledge, but cannot make legal conclusions. The portion of the paragraph in which plaintiff testifies that he did not get to see a neurologist until approximately a year after his surgery is admissible. The portion of the paragraph in which plaintiff testifies that this was "neglect" on the part of defendant and was not done within a "reasonable time" is not admissible.
This exhibit is an outpatient speech language evaluation prepared by Julie Gose, a bilingual speech-language pathologist, who evaluated plaintiff on July 18, 2002. Defendant moves to...
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...Bettancourt's trial testimony at p. 516–531 and his deposition testimony at p. 1–23. Plaintiff cites Miller v. Corrections Corp. of America, 375 F.Supp.2d 889, 896 (D.Alaska 2005), in contending that “an expert report may, as do plaintiff's expert's reports, include or make reference to att......