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Sliwinski v. Dutton

United States District Court, D. Montana, Helena Division

June 23, 2017

THOMAS EMIL SLIWINSKI, Plaintiff,
v.
SHERIFF LEO DUTTON, Defendant.

          ORDER

          John Johnston United States Magistrate

         Plaintiff 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.

         Having 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.

         I. MOTION TO DENY EXHIBITS

         Attached 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.

         “Unauthenticated 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; Fed.R.Evid. 901(b)(4)).

         Regardless 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 Defendant's motion.

         II. STANDARD

         Summary 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.

         The 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.

         By 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).

         III. ...


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