Rosbough v. Fla. State Univ.
| Decision Date | 21 August 2017 |
| Docket Number | Case No. 4:15cv583-RH/CAS |
| Parties | CHRISTOPHER PATRICK MICHAEL ROSBOUGH, Plaintiff, v. FLORIDA STATE UNIVERSITY, THOMAS BLOMBERG, and NANCY MARCUS, Defendants. |
| Court | U.S. District Court — Northern District of Florida |
This case was transferred to this Court in late November 2015. ECF Nos. 12-13. Plaintiff, who is pro se, filed an amended complaint, ECF No. 11, and Defendants filed an answer, ECF No. 18. The parties were provided an opportunity to conduct discovery, see ECF Nos. 19-22, and at the conclusion of the discovery period, Defendants filed a summary judgment motion, ECF No. 34, supported by five affidavits, ECF Nos. 35-39, and Plaintiff's deposition testimony, ECF No. 40. Plaintiff was advised of his obligation to file a response in opposition to the motion. ECF No. 41. After being granted additional time in which to respond, see ECF Nos. 42 and 44, Plaintiff submitted responses and supporting evidence on January 25, 2017. ECF Nos. 45-50. Plaintiff's responses did not comply with the rules of this Court or the prior Order. Thus, Plaintiff was given additional time in which to submit an amended response. ECF No. 51. Plaintiff was specifically advised that he must filed only one response to the motion for summary judgment, not three separate responses. Id. Additionally, Plaintiff was reminded again that a memorandum filed in opposition to a summary judgment motion "must include pinpoint citations to the record evidence supporting each factual assertion." N.D. Fla. Loc. R. 56.1(F) (quoted in ECF No. 41 at 5, ECF No. 51 at 2). Plaintiff was informed that the Court would not review Plaintiff's evidence to attempt to locate relevant facts if his memorandum did not include any specific references. Id.
Plaintiff filed his response to Defendant's motion for summary judgment on February 24, 2017. ECF No. 52. Included with Plaintiff's submission are three exhibits: (1) a copy of Florida State University's Student Academic Resource Committee (SARC) report dated November 4, 2014, ECF No. 53; (2) a follow-up letter to the psychological report on Plaintiff from Dr. Wendy B. Rice, ECF No. 54; and (3) a Psychological Report with an Addendum, ECF No. 55.
Defendants filed a motion to strike the letter from Dr. Rice and the Psychological Report because they are unsworn and unauthenticated. ECF No. 56. Plaintiff has not filed a response to the motion.
Defendants contend that documents offered in opposition to a summary judgment motion "must be authenticated, either by affidavit satisfying the requirements of Federal Rule of Civil Procedure 56 or in accord with the Federal Rules of Evidence." ECF No. 56 at 2 (citing Wells v. XPEDX, No. 8:05-CV-2193-T-EAJ, 2007 WL 2696566, at *2 (M.D. Fla. Sept. 11, 2007), aff'd in part, 319 F. App'x 798 (11th Cir. 2009) () (citing Williams v. Eckerd Family Youth Alternative, 908 F.Supp. 908, 911 (M.D. Fla.1995)).
In 2010, the Federal Rules of Civil Procedure were amended. Prior to those amendments, "Rule 56 arguably required that all documents submitted to support or oppose a summary judgment be authenticated." Abbott v. Elwood Staffing Servs., Inc., 44 F. Supp. 3d 1125, 1133 (N.D. Ala. 2014) (citations omitted). Relying on the language of Rule 56(e) as it existed prior to the 2010 amendments,1 the Eleventh Circuit stated: "To be admissible in support of or in opposition to a motion for summary judgment, a document must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Saunders v. Emory Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010) (quoted in Abbott, 44 F. Supp. 3d at 1132). However, Rule 56 no longer contains the requirement that documents submitted at the summary judgment stage be authenticated. Cazeau v. Wells Fargo Bank, N.A., No. 1:13-CV-0260-AT-JFK, 2014 WL 11444089, at *1 (N.D. Ga. May 29, 2014), report and recommendation adopted, No. 1:13-CV-0260-AT, 2014 WL 11444090 (N.D. Ga. Sept. 25, 2014), aff'd, 614 F. App'x 972 (11th Cir. 2015) (). "Rather, the amended Rule allows a party making or opposing a summary judgment motion to cite to materials in the record including, among other things, 'depositions, documents, electronically stored information, affidavits or declarations' and the like." Abbott, 44 F. Supp. 3d at 1134 (quoting Foreward Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D. Mich. 2011) (quoting Rule 56(c)(1)(A))). "If the opposing party believes that such materials 'cannot be presented in a form that would be admissible in evidence,' that party must file an objection." In re Gregg, No. 11-40125- JTL, 2013 WL 3989061, at *3 (Bankr. M.D. Ga. July 2, 2013) (quoting Foreward Magazine, 2011 WL 5169384, at *2) (quoting Rule 56(c)(2))). "Significantly, the objection contemplated by the amended Rule is not that the material 'has not' been submitted in admissible form, but that it 'cannot' be." In re Gregg, 2013 WL 3989061, at *3; see also Abbott, 44 F. Supp. 3d at 1134. "Thus under current Rule 56, an objection cannot be based solely on evidence not being authenticated—the objection must be that evidence cannot be presented in admissible form, not that the evidence has not been presented in admissible form." Abbott, 44 F. Supp. 3d at 1135 (quoting In re Gregg, 2013 WL 3989061, at *3).
Here, both the challenged letter and the report appear to have been generated on Rice Psychology Group letterhead. The authenticity of the documents is not questioned by Defendants, only the fact that Plaintiff did not authenticate them when submitting them as evidence. See Smart & Assocs., LLC v. Indep. Liquor (NZ) Ltd., 226 F. Supp. 3d 828, 844 (W.D. Ky. 2016) (). Because it is no longer required that Plaintiff submit authenticated documents in opposition to summary judgment, and because Defendants have not objected that Plaintiff's exhibits could not be presented in admissible form should this case proceed to trial, the objection is overruled.
Plaintiff Christopher Rosbough alleged that while he was a student at the Florida State University ("FSU"), Defendants "acted with 'deliberate indifference' by not properly and not fully providing adequate accommodations to" him. ECF No. 11 at 2-3. He alleged that "when provided, accommodations were 'inappropriate or inadequate' based on" his learning disabilities. Id. at 3. The events at issue took place between December 2013 and May 1, 2015. Id. Mr. Rosbough asserts six claims against Defendants FSU, Thomas Blomberg, and Nancy Marcus:2 (1) an ADA claim for failing to provide accommodations; (2) a 42 U.S.C. § 1983 claim; (3) a claim under the Rehabilitation Act; (4) a second claim under the Rehabilitation Act; (5) a due process claim; and (6) an equal protection claim. Id. at 4-5. As relief, Mr. Rosbough seeks accommodations and monetary damages.
"The court shall grant summary judgment if the movant shows that 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). Thus, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying thoseportions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving party must then show3 though affidavits or other Rule 56 evidence "that there is a genuine issue for trial" or "an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006).
An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). "[T]he issue of fact must be 'genuine'" and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d538 (1986) (other citations omitted). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511...
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