United States District Court, D. Montana, Helena Division
Johnston United States Magistrate Judge.
Jacob Banschbach, an inmate proceeding in forma pauperis and
without counsel, filed a Complaint pursuant to 42 U.S.C.
§ 1983 alleging Dr. Kohut sexually assaulted him and
denied him medical care. (Doc. 1.) Dr. Kohut filed a motion
for summary judgment on the grounds that Mr. Banschbach
failed to exhaust his administrative remedies. (Doc. 8.) The
motion was granted on the sexual assault claim but denied on
the medical care claim. (Doc. 31.)
discovery, Defendant Kohut filed a second motion for summary
judgment on the merits of the medical care claim arguing that
he was not deliberately indifferent to Mr. Banschbach's
serious medical needs. (Doc. 56.) Mr. Banschbach responded by
referring the Court to his response to Defendant's first
motion for summary judgment. Mr. Banschbach did not file a
statement of disputed facts as required by Local Rule
56.1(b). His response is insufficient and in violation of the
Court's Local Rules but the Ninth Circuit has made clear
that a district court may not grant “summary judgment
simply because a party fails to file an opposition or
violates a local rule, ” and the court must
“analyze the record to determine whether any disputed
material fact [is] present.” Ahanchian v. Xenon
Pictures, Incl, 624 F.3d 1253, 1258 (9th Cir. 2010);
see also Martinez v. Stanford, 323 F.3d 1178, 1182
(9th Cir. 2003)(explaining that “a nonmoving
party's failure to comply with local rules does not
excuse the moving party's affirmative duty under Rule 56
to demonstrate its entitlement to judgment as a matter of
order for the Court to analyze whether there is a disputed
material fact, Defendant must comply with the Court's
Local Rules and the Federal Rules of Civil Procedure. The
motion for summary judgment will be denied without prejudice
and subject to renewal.
A to Defendant's Statement of Undisputed Facts (Docs.
56-3, 56-4, 56-5) consists of more than 1600 pages of records
(primarily medical records). However, the only reference to
Exhibit A in any of Dr. Kohut's filings is a statement of
undisputed fact citing to a disciplinary hearing decision
finding Mr. Banschbach guilty for smoking marijuana while
attending treatment. (Defendant's Statement of Undisputed
Facts, Doc. 56-1 at 6, ¶ 40.) There is no other
reference to Exhibit A. Dr. Kohut filed a 19-page affidavit
detailing Mr. Banschbach's medical history including his
treatment of Mr. Banschbach and the treatment Mr. Banschbach
received from other providers without reference to a single
56(e) of the Federal Rules of Civil Procedure requires that
affidavits must be made upon personal knowledge. There is no
indication that Dr. Kohut had personal knowledge of the
treatment provided to Mr. Banschbach by other providers. Dr.
Kohut can testify to that treatment based upon his review of
the medical records but he must make citation to the
appropriate record as foundation for each statement. The
Court will not conduct an independent review of the 1600
pages of Mr. Banschbach's medical records to determine
the issues in this case. See Carmen v. S.F. Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)(“The
district court need not examine the entire file for evidence
establishing a genuine issue of fact, where the evidence is
not set forth in the opposing papers with adequate references
so that it could conveniently be found.”). This is
particularly true when proceeding against an unrepresented
litigant who does not have the resources to scour the
complicated medical records at issue to determine if they
have been adequately presented to the Court.
56(c)(3) provides that the court need consider only cited
materials. The only cited material in Defendant's
statement of undisputed facts is Dr. Kohut's affidavit
which was at least in part not made on personal knowledge.
Dr. Kohut's affidavit failed to cite to specific portions
of Mr. Banschbach's medical records as required by
based on a cursory review of the 1600 pages of records
included in Exhibit A it appears that Defendant filed many
records not relevant to the issue at bar. Local Rule 7.2(b)
provides that “[o]nly exhibits that are directly
germane to the matter under consideration by the court may be
filed.” Most egregious is Defendant's filing of Mr.
Banschbach's mental health records without any
explanation as to why those records may be at issue. There is
no mention of Mr. Banschbach's mental health conditions
in Defendant's filings. Without further explanation, the
Court fails to see how these documents and the vast majority
of the documents submitted are germane to the matter under
consideration. Further, as set forth in Defendant's brief
“Plaintiff's allegations concern treatment of his
hernia-related pain from October 8, 2011 through June 24,
2013, and from April 6, 2016, through the present.”
(Defendant's Brief, Doc. 56 at 11.) While medical
records from other periods of time may have some relevancy to
the issues at hand, that has not been explained by Defendant.
Mr. Banschbach argued in response to the motion for summary
judgment that, “[d]ue to my current circumstances
(medical) which have made it overwhelmingly difficult to
conduct myself . . . I . . . am responding to the
Defendants' second motion for summary judgment by stating
that I am still standing by my first (arguement) response to
the defendants first motion for summary judgment.”
(Doc. 63 at 1.) Defendant filed a reply arguing that summary
judgment was appropriate and presenting new evidence in
support of his claim that Mr. Banschbach “has been
receiving-and continues to receive-good medical treatment,
including pain management, at MSP.” (Reply, Doc. 64 at
9 citing Affidavit of Dr. Paul Rees.) It is improper to
present new evidence in a reply. Provenz v. Miller,
102 F.3d 1479, 1483 (9th Cir. 1996)(new evidence in reply may
not be considered without giving the non-movant an
opportunity to respond). Mr. Banschbach has not had an
opportunity to respond to the new evidence and sur-replies
are prohibited by Local Rule without prior leave of court.
The submission of new evidence and facts also circumvents the
requirement that a party file a statement of undisputed facts
setting forth each fact on which the party relies to support
the motion. L.R. 56.1.
such, the evidence attached to the Reply will be stricken.
Defendant may however, resubmit this evidence with the
re-filing of the motion for summary judgment.
Banschbach is advised that although the motion for summary
judgment will be denied without prejudice, Defendant may
refile the motion. If so, Mr. Banschbach must file a response
to the new motion in compliance with Local Rule 56.1(b) which
(b) Any party opposing a motion for summary
judgment must file a Statement of Disputed Facts
simultaneously with and separately from the response brief.
Similar to the example provided in Appendix Form A, the
(1) set forth verbatim the moving party's Statement,
(A) whether each fact in the moving party's Statement is
“undisputed” or ...