Chavez v. Parker (INMATE 1), No. 2:2019cv01044 - Document 54 (M.D. Ala. 2023)
Court Description: OPINION. Signed by Honorable Judge Myron H. Thompson on 3/27/2023. (cwl, )
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Chavez v. Parker (INMATE 1) Doc. 54 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION JAIME CHAVEZ, ) ) ) ) ) ) ) ) ) Plaintiff, v. ANTHONY PARKER, Officer, Defendant. CIVIL ACTION NO. 2:19cv1044-MHT (WO) OPINION Pursuant to 42 U.S.C. § 1983, plaintiff, a state prisoner, filed this lawsuit asserting defendant correctional officer violated that his the Eighth Amendment rights by maliciously beating him, leaving him with permanent injuries. This lawsuit is now before the court on the recommendation of the United States Magistrate Judge that summary judgment be granted. to the recommendation. defendant's motion for There are no objections After an independent and de novo review of the record, the court concludes that the magistrate judge’s recommendation should be adopted in part and rejected in part as to the reasoning and Dockets.Justia.com adopted as to the result. Specifically, the court does not adopt the recommendation’s reasoning to the extent that it finds that Roy v. prohibits Ivy, 53 F.4th consideration 1338 of (11th Cir. plaintiff’s complaint and attached statement of facts. 2022), verified In Roy, the court found that several unsworn witness statements and a statement of facts submitted in opposition to summary judgment by the pro se plaintiff could not be considered as evidence on summary judgment because they were not sworn affidavits and did not meet the requirements of 28 U.S.C. § 1746 for declarations. Id. at 1348-50. 28 U.S.C. § 1746 allows for the use of declarations under penalty of perjury in place of sworn affidavits if certain requirements are met. The statute provides that a “matter may, with like force and effect, be supported, unsworn evidenced, established, declaration, certificate, 2 or proved by the verification, or statement, 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 Executed on the foregoing (date). (emphasis added). language, perfect is true (Signature).” As 28 indicated compliance and by is U.S.C. the not correct. § 1746 italicized required, but compliance must be substantial. Plaintiff submitted his complaint on a preprinted complaint form available to prisoners. At the end of the form, the following sentence appears: “I declare under penalty of perjury that the foregoing is true and correct.” Plaintiff immediately after signed this and dated statement. In the complaint the factual sections of the form, plaintiff wrote “see attached,” thereby document. incorporating by reference Complaint (Doc. 1) at 3-4. the attached The attached document contains factual allegations in support of his 3 claims and a demand for relief. following statement, “I At the end appears the affirm that the foregoing statements are true and correct under penalty of law,” followed by plaintiff’s signature and the date. Complaint (Doc. 1) at 10. The court finds that the plaintiff’s verified complaint and attached statement of facts substantially comply with the requirements of § 1746 and are distinguishable from the statements at issue in Roy. Plaintiff’s required by incorporates complaint § 1746, by contains and explicitly reference statement of facts. the the exact language refers directly to and attached In addition, that statement of facts itself comes quite close to containing the exact § 1746 language. “penalty of law” It for merely substitutes “penalty of the phrase perjury.” This language is substantially compliant with § 1746, as it makes clear that the declarant is subjecting himself to legal penalties for stating that the facts are true and 4 correct. The facts here are also distinguishable from those at issue in Roy. There, the court rejected the use of unsworn statements that contained neither “penalty of perjury” language statements were nor true an and affirmation correct. Id. that the at 1348-50. Here, in contrast, both of those are present. Indeed, the Roy court made clear that it was not addressing the situation in which one of the requirements was met, but not the attention to other. the The case of court sua LeBoeuf, sponte Lamb, called Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65–66 (2d Cir. 1999), the Second Circuit Court of Appeals found that an unsworn letter that used “penalty of perjury” language but did not state the contents were true and correct substantially complied with § 1746. 1350 n. 9. inapposite See Roy at The Roy court explained that Worsham “is here... [because,] [u]nlike the unsworn letter in that case, Roy's unsworn statement did not 5 comply with two § 1746 requirements: (1) it was not made under declare penalty (or of certify, perjury; verify, contents were true or correct.” Considering or (2) it state) did that not its Roy, 53 F.4th at 1350. complaint and statement of facts does not change the result. The court agrees with plaintiff’s and the finding sworn in the recommendation that, even if the court were to consider the complaint and attached statement of facts, plaintiff failed to put forward sufficient evidence for a reasonable trier of fact to rule in his favor. Accordingly, summary judgment will be granted. An appropriate judgment will be entered. DONE, this the 27th day of March, 2023. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 6
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