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Hollyfield v. Tullos

United States District Court, E.D. Louisiana

July 19, 2018

RICHARD HOLLYFIELD
v.
AMANDA TULLOS, M.D.

         SECTION “F” (2)

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         Hollyfield, 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.

         In 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, 36-2, 36-3.

         Defendant's 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. 36-4.

         Dr. 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.

         Section 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).
(Signature)”.

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.

         Defendant 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 ...


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