United States District Court, D. Montana, Helena Division
Johnston United States Magistrate
Thomas Sliwinski, an inmate proceeding in forma pauperis and
without counsel, filed a Complaint pursuant to the Americans
with Disabilities Act. (Doc. 2) Defendant filed a motion for
summary judgment arguing that Mr. Sliwinski failed to exhaust
his administrative remedies.
considered the parties' arguments and submissions, the
Court determines that Defendant met his burden of
demonstrating that administrative remedies were available and
Mr. Sliwinski failed to properly utilize those remedies. The
Motion for Summary Judgment (Doc. 27) is granted.
MOTION TO DENY EXHIBITS
to Defendant's Motion for Summary Judgment is a
declaration in which counsel attests to the attached exhibits
being true and correct copies. (Doc. 29.) Mr. Sliwinski moves
to deny these exhibits arguing that declarations must be made
on personal knowledge and counsel does not have personal
knowledge of exhibits A, B, and C attached to her affidavit.
(Doc. 39.) Counsel responded with the Affidavit of Sgt.
Ferguson which authenticated the exhibits at issue.
documents cannot be considered in a motion for summary
judgment.” Orr v. Bank of Am., NT & SA,
285 F.3d 764, 773 (9th Cir. 2002).
But the requirement that documents be authenticated through
personal knowledge when submitted in a summary judgment
motion “is limited to situations where exhibits are
introduced by being attached to an affidavit” of a
person whose personal knowledge is essential to establish the
document is what it purports to be-that it is authentic.
Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533
(9th Cir. 2011) (quoting Orr, 285 F.3d at 778 n.
24). The Court can consider other means of authentication
such as Federal Rule of Evidence 901 which provides that
documents can be “authenticated by review of their
contents if they appear to be sufficiently genuine.”
Id. (citing Orr, 285 F.3d at 778 n. 24;
of whether or not the documents were sufficiently
authenticated when the motion for summary judgment was filed,
any defect has now been cured by Sgt. Ferguson's
Affidavit. The motion to deny exhibits will be denied and the
attached exhibits will be considered in the analysis of
judgment is appropriate if there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). A fact is material if it
might affect the outcome of the suit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a material fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
party moving for summary judgment has the initial burden of
showing there is no genuine issue of material fact.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). If the moving party makes a prima facie showing that
summary judgment is appropriate, the burden shifts to the
opposing party to show the existence of a genuine issue of
material fact. Id. On summary judgment, all
inferences should be drawn in the light most favorable to the
party opposing summary judgment. Id. at 159.
notice provided on January 20, 2017 (Doc. 31), Mr. Sliwinski
was advised of the requirements for opposing a motion for
summary judgment brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. See Rand v. Rowland, 154
F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988).