United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Richard Hollyfield, filed a Motion for Leave of Court to
Supplement Opposition to Motion for Summary Judgment with
Declaration of Richard Hollyfield. Record Doc. No. 33.
Defendant, Amanda Tullos, M.D., filed a timely memorandum in
opposition. Record Doc. No. 36.
who is incarcerated but is represented by retained counsel,
seeks leave to file his own declaration under
penalty of perjury in support of his opposition to
defendant's pending summary judgment motion. He explains
that his attorney did not receive his declaration before his
counsel timely filed his memorandum in opposition to
defendant's summary judgment motion on July 3, 2018. The
declaration was scanned and is electronically attached to
plaintiff's motion. It is signed by Hollyfield in black
ink and date-stamped “RECEIVED JUL 05 2018.”
Above his signature is the notation “signed
7/1/2018” in purple ink and in an apparently different
handwriting. Record Doc. No. 33-3.
opposition to plaintiff's motion, Dr. Tullos asserts that
plaintiff's counsel emailed to her counsel on July 9 and
July 10, 2018, a scanned copy of plaintiff's declaration
and asked whether Dr. Tullos would object to plaintiff's
request to supplement the record with the declaration.
Defendant's Exhs. A, B and C, Record Doc. Nos. 36-1,
counsel responded by email on July 10, 2018 that he objected
because the declaration “lacks any notation of the date
on which the Plaintiff purportedly signed this
declaration.” Defendant's Exh. D, Record Doc. No.
Tullos argues that the “original” declaration
sent to her attorney on July 9th and 10th “contained no
date whatsoever on its ‘declaration' page”
and that the declaration that plaintiff submitted with his
motion was altered after its execution by adding the date in
purple ink. Defendant's memorandum in opposition, Record
Doc. No. 36 at p. 2. Dr. Tullos objects that the altered
declaration does not satisfy the requirements of 28 U.S.C.
§ 1746 for an unsworn declaration under penalty of
perjury because it lacks an original date of execution and
has been altered without explanation to add a purported date.
1746 provides, in pertinent part, that an unsworn declaration
is admissible in evidence when it is
in writing of such person which is subscribed by him, as true
under penalty of perjury, and dated, in
substantially the following form:
. . . .
. . . . “I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct.
Executed on (date).
28 U.S.C. § 1746 (emphasis added). On its face, the
statute does not require that the date of execution
be entered on the document by the declarant or that the date
be in his own handwriting.
is incorrect that the “original” declaration
“contained no date whatsoever.” It contained a
“Date Received” stamp of July 5, 2018, which can
reasonably be presumed to have been placed there either by an
official at the prison where Hollyfield is incarcerated when
the declaration was ...