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Murphy v. City of Tulsa

United States District Court, N.D. Oklahoma

January 9, 2018

MICHELLE DAWN MURPHY, Plaintiff,
v.
THE CITY OF TULSA, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         This matter comes before the court on the Motion to Strike Material and Portions of Affidavits Pursuant to Fed.R.Civ.P. 56(c)(2) and Fed.R.Civ.P. 56(c)(4) [Doc. #189] of plaintiff Michelle Dawn Murphy. This Opinion and Order does not address Murphy's request to strike exhibits 26 and 27 to the City's motion for summary judgment [Doc. #175], which will be addressed in a separate order. For the reasons discussed below, the remainder of the Motion to Strike is granted in part, and denied in part.

         I. City Exhibit 40, Affidavit of Kenneth Mackinson [Doc. #175-40]

         Pursuant to Fed.R.Civ.P. 56(c)(4), Murphy moves to strike paragraphs 3, 4, 5, 6, 8 and 9 of the affidavit of retired Tulsa police officer Kenneth Mackinson, attached as exhibit 40 to the City's motion for summary judgment. [Doc. #189, pp. 1-5]. The court will separately consider each paragraph.

         Murphy first objects to paragraphs 3 and 4 of the Mackinson affidavit on the basis that the paragraphs do not support the material fact (fact no. 56) for which the paragraphs are cited in the City's motion for summary judgment. As a result, Murphy asserts that paragraphs 3 and 4 must be stricken. The court is not persuaded. Although a party moving for summary judgment must submit admissible evidence to support their material facts, when a court concludes that the submitted evidence does not support the fact, the proper procedure under Fed.R.Civ.P. 56 is for the court to find that the affidavit does not support the alleged material fact and treat the fact as disputed, not strike the submitted evidence or factual assertion.

         Murphy moves to strike paragraph 5 of the Mackinson affidavit on the basis of hearsay, lack of personal knowledge and untruthfulness. Paragraph 5 states: “Additionally, in order to maintain CLEET (Council on Law Enforcement Education and Training) certification, during the time I was in the department, all Tulsa Police Officers were required to attend forty hours of in-service training yearly that included a legal block regarding legal current procedures.” [Doc. #175-40, ¶ 5]. Paragraph 5 does not include any specific out-of-court statement and, therefore, is not hearsay. See Marland v. Asplundh Tree Expert Co., No. 14-CV-040-TS, 2017 WL 435764, at *6 (D. Utah Jan. 31, 2017) (testimony regarding person's understanding of situation that did not contain any out-of-court statement was not impermissible hearsay). See also Fed. R. Evid. 801. Nor is the truthfulness of paragraph 5 a valid basis for the court to strike that portion of the affidavit. See Billy v. Curry Cty. Bd. of Cty. Comm'rs, No. 13-CV-0032-MCA-LAM, 2014 WL 11430978, at *5 (D.N.M. Sept. 30, 2014) (cautioning against striking portions of affidavits on basis of veracity as it would require the court to improperly weigh credibility).

         With regard to lack of personal knowledge, pursuant to Fed.R.Civ.P. 56(c)(4), “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Although Murphy moves to strike portions of Mackinson's affidavit pursuant to Fed.R.Civ.P. 56(c)(4), the court will also consider the standards of Fed.R.Evid. 602, which permits a witness to testify to a matter “only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. See also Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (noting that, although district court relied on local rule requiring affidavits to be made on personal knowledge in striking part of affidavit, court “might just as easily relied on” Fed.R.Civ.P. 56 or Fed.R.Evid. 602). “Under the personal knowledge standard, an affidavit is inadmissible if ‘the witness could not have actually perceived or observed that which he testifies to.'” Id. (quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)). “‘[S]tatements of mere belief' in an affidavit must be disregarded.” Argo, 452 F.3d at 1200 (quoting Tavery v. United States, 32 F.3d 1423, 1427 n.4 (10th Cir. 1994)).

         Here, in paragraph 5, Mackinson avers “in order to maintain CLEET (Council on Law Enforcement Education and Training) certification, during the time I was in the department, all Tulsa Police Officers were required to attend forty hours of in-service training yearly that included a legal block regarding current legal procedures.” [Doc. #175-40, ¶ 5 (emphasis added)]. Mackinson also avers that he is a retired Tulsa police officer who completed the Tulsa Police Academy in October 1978 and retired in June 2003, and that he has personal knowledge of the facts stated in the affidavit. [Doc. #175-40, ¶¶ 1-2]. Mackinson was a Tulsa police officer for twenty-five (25) years and unquestionably has knowledge of his own training and certification requirements.[1] The court is persuaded that paragraph 5 reflects matters of which Mackinson has personal knowledge based on his own training and experience in the Tulsa Police Department.

         Murphy moves to strike paragraph 6 on the basis of hearsay and personal knowledge.[2]Paragraph 6 states: “Every officer also received monthly legal bulletins regarding new ordinances, statutes, appellate court decisions and United States Supreme Court decisions.” [Doc. #175-40, ¶ 6]. Because paragraph 6 does not include a specific out-of-court statement, paragraph 6 is not impermissible hearsay. See Marland, 2017 WL 435764, at *6. Nor does paragraph 6 lack personal knowledge. When read in context of the remainder of the affidavit, the court concludes that paragraph 6 conveys information related to the Tulsa Police Department's general training procedures during Mackinson's time at the department. Paragraph 6 follows averments regarding the training that Mackinson personally received. Further, it immediately follows paragraph 5 which, as previously emphasized, was expressly limited to “the time [Mackinson] was in the department.” [Doc. #175-40, ¶ 5]. Immediately thereafter, paragraph 6 states “[e]very officer also received monthly legal bulletins . . . .” [Doc. #175-40, ¶ 6 (emphasis added)]. When read in context, the court concludes that paragraph 6 is limited to the time in which Mackinson was in the Tulsa Police Department and reflects matters of which Mackinson would have personal knowledge based on his own observations and experiences during his employment.

         Murphy also moves to strike paragraphs 8 and 9-again on the basis of hearsay, untruthfulness, and lack of personal knowledge. The court will first consider paragraph 8, which states: “I was assigned to the Detective Division in August of 1988. All officers new to the Detective Unit were required to immediately complete an additional forty (40) hours of training in Interrogations, Arrest Warrants, Search Warrants, and Affidavits.” [Doc. #175-40, ¶ 8]. Again, paragraph 8 does not include a specific out-of-court statement that is impermissible hearsay, and the court will not consider paragraph 8's veracity. With regard to personal knowledge, the date of Mackinson's assignment to the detective division is clearly information of which Mackinson would have personal knowledge. Further, the court is persuaded that the nature and scope of the training requirements for new detectives at that time were matters within Mackinson's observation.

         Paragraph 9 relates to the homicide unit, rather than the detective unit, and avers: “Officers assigned to the Homicide Unit underwent the same additional forty (40) hours of training in Interrogations, Arrest Warrants, Search Warrants and Affidavits.” [Doc. #175-40, ¶ 9]. The court again concludes that, when read in the broader context of the affidavit, paragraph 9 reflects matters of which Mackinson would have personal knowledge. In paragraph 10, Mackinson states that, in February of 1989, he was assigned to the homicide unit. [Doc. #175-40, ¶ 10]. Accordingly, the court concludes that the nature and scope of training requirements for new assignees to the homicide unit constitute matters within Mackinson's personal knowledge.

         For the reasons discussed above, the court denies Murphy's motion to strike Mackinson's affidavit [Doc. #175-40].

         II. City Exhibit 44, Affidavit of Dennis Larsen [Doc. # 175-44]

         Murphy moves to strike paragraph 11 of the affidavit of Dennis Larsen, deputy chief for the Tulsa Police Department, as hearsay, without proper foundation, and not based on personal knowledge. Paragraph 11 of Larsen's affidavit avers: “The Tulsa Police Department currently provides and in 1994 provided its officers with training including but not limited to ...


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