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880 F.2d 1040
(1989)
James F. TAYLOR,
Plaintiff-Appellant,
v.
Robert LIST, Attorney General, Patrick B. Walsh, Deputy Attorney General,
Department of Prisons, an administrative agency for the State of Nevada,
Charles L. Wolff, Jr., Director, Boyd Marsing, Superintendent, David E. Watson,
Superintendent, Roger Belleville, Lieutenant, Robert Freeman, Psychiatrist, and
Does, John and Jane, 1 through 20, employees and former employees,
Defendants-Appellees.
No.
87-15003.
United States Court of Appeals, Ninth Circuit.
Submitted June 6,
1989[*].
Decided
July 17, 1989.
1041*1041 1042*1042 James F. Taylor, Carson
City, Nev., pro se.
Brian McKay, Atty. Gen., Criminal Div., John Cary, Deputy Atty. Gen.,
Criminal Div., Carson City, Nev., for defendants-appellees.
Before CHOY, ALARCON and LEAVY, Circuit Judges.
CHOY, Circuit Judge:
James F. Taylor ("Taylor"), a Nevada state prisoner, appeals pro se from the district
court's entry of summary judgment in favor of the defendants in Taylor's 42 U.S.C.A. §
1983 action. The district court held that Taylor had failed to establish the
existence of a material fact with regard to his constitutional claims and that certain defendants were not liable under section 1983
because there was no evidence of their personal participation in any
deprivation of constitutional rights which may have occurred.
In his affidavits submitted in opposition to the summary judgment motion,
Taylor raised genuine issues of material fact regarding actions by defendants
Boyd Marsing ("Marsing"), Superintendent at the Nevada State Prison
(the "prison"), and David E. Watson ("Watson"), Acting
Captain of the prison's Maximum Security Facility, which may have deprived
Taylor of his Sixth Amendment right to self-representation. The defendants did
not deny or rebut Taylor's factual allegations
in their summary judgment motion or in their reply to Taylor's opposition. Thus, we reverse the
judgment in favor of defendants Marsing and Watson and remand the case for
trial. The judgment in favor of all remaining defendants is affirmed.
FACTS
In 1976, Taylor and two other prisoners were indicted for murder and
attempted murder after participating in a riot at the prison. Taylor initially invoked his constitutional
right to self-representation. One month prior to trial, Taylor requested that counsel be appointed.
His request was denied and Taylor
was convicted and sentenced to death. The Nevada Supreme Court overturned the
conviction because of the denial of counsel. Ross v. State, 97 Nev. 40, 623 P.2d 980 (1981). Taylor
then pled guilty to two counts of murder and received concurrent life sentences
without possibility of parole.
Taylor filed
this 42 U.S.C. § 1983 action on November 10, 1980,[1]
alleging that the defendants deprived him of constitutional rights during his
criminal trial while he was representing himself. During the trial, Taylor was housed in
administrative segregation because of his participation in the riot and thus
was not given personal access to the prison law library. He secured a state
court order requiring that he be allowed two visits per day from inmate law
clerks and be allowed to request up to two books per visit on an exchange
basis. In his complaint, he alleged that the defendants 1043*1043 prevented him from preparing a defense and presenting
evidence and testimony on his behalf by (1) denying him personal access to
prison law clerks and use of law books in violation of the state court order;
(2) interfering with the prison law clerks' access to witnesses while the law
clerks were assisting Taylor in his defense; and (3) intimidating and coercing
a witness from giving expert testimony on Taylor's behalf.
The defendants moved for summary judgment, arguing that an examination of
the numerous motions and documents filed with the state court prior to and
after the criminal jury trial proved that Taylor
was not denied access to the courts. The defendants contended that Taylor had failed to
specify a single instance of actual denial of access to the courts. They also
contended that Taylor
had stated no facts showing any personal participation in the alleged
violations by defendants Robert List ("List"), Patrick B. Walsh
("Walsh"), Charles L. Wolff ("Wolff"), Marsing, and Watson.
Thus, they argued, the action should be dismissed as to those defendants.
In his opposition to the motion for summary judgment, Taylor alleged that List, the state Attorney
General, and Wolff, the Director of the prison, were liable as a result of
their knowledge of and failure to prevent the alleged constitutional violations
by their subordinates. Taylor also alleged that
Walsh, the Deputy Attorney General in charge of prosecuting Taylor, was liable because Walsh told the
state court on two occasions that Walsh would talk to the prison officials
about the need for compliance with the court's order regarding access to the
law clerks and law books. Taylor alleged that Marsing
and Watson directly prevented Robert Freeman ("Freeman"), the prison
psychiatrist and a named defendant in this action, from testifying on Taylor's behalf after
Freeman had agreed to do so. Finally, Taylor
alleged that Marsing, Watson, and Roger Belleville ("Belleville")
personally stopped law clerks and law books from being presented to Taylor.
Taylor
attached his own affidavit as an exhibit to his opposition memorandum. The
affidavit stated that prior to securing the state court order,
he had told Marsing on three separate occasions about his problems with getting
legal research material and not being allowed to see law clerks. Taylor refused to lock up
in his cell on several dates in an effort to get the problems corrected, but
still nothing was done. On January 11, 1978, Taylor notified the state court that he was
still being denied access despite the court order. Taylor was denied use of certain research
materials which could not be checked out of the library, including the United
States Code Annotated, the Nevada Revised Statutes, certain form books, certain
manuals on evidence, constitutional rights, and trial procedure, a law
dictionary, Federal Practice and Procedure, and the Federal Digest. He stated
that prison law clerk Bernard Ybarra ("Ybarra") had notified Taylor
in writing that Ybarra, Robert Stickney ("Stickney"), who was also a
prison law clerk, and Leon Harley Anderson, another inmate, would testify as to
the prison guards' refusal to allow interviews of potential witnesses to the
riot and as to Marsing's and Watson's actions in preventing Freeman from
testifying. Taylor
attached as an exhibit a copy of the letter from Ybarra.
Taylor also
attached an affidavit from Ybarra. Ybarra stated that Marsing and Watson had
told the law clerks they would have access to Taylor and to potential witnesses within the
prison. Marsing and Watson did not allow the law clerks to interview or obtain
statements from any witnesses, however, even though several prisoners sent
messages to the law clerks requesting interviews concerning the defense and
offering to testify at trial. Ybarra assisted in research and preparation of
motions; Stickney was responsible for visiting Taylor
in his cell and keeping Taylor
informed of the events at trial. Prior to and during the trial, there were
times when Stickney was denied access to Taylor,
which prevented Taylor
from obtaining important information concerning the developments at trial and
giving directions as to his defense. Taylor
often was unable to request specific cases from the law library 1044*1044 because he did not have access to digests to determine which
cases were relevant.
Ybarra recalled that Stickney met with Freeman at Ybarra's suggestion to ask
if Freeman would testify at trial. According to Stickney's notes of the
meeting, which Ybarra said he had read, Freeman told Stickney that Freeman was
willing to testify on the ability of purported eye witnesses to observe matters
in a crisis situation such as the riot. Freeman would
have testified that eyewitnesses who had been in danger themselves during the
riot would tend to be unreliable and unable to make the types of observations
some of the eyewitnesses claimed to have made. Ybarra stated that he read
Stickney's notes from a second meeting Stickney had with Freeman. The notes
indicated that Marsing and Watson were present at the meeting and told Stickney
they had directed Freeman not to testify at the trial.
Subsequently, Taylor
filed an additional affidavit from Stickney. Stickney's affidavit stated that
prior to and during the trial, Taylor
was not permitted to interview witnesses and Stickney was denied access to
various inmate witnesses by Marsing and Watson. He was denied access to Taylor on numerous
occasions. He spoke to Freeman concerning the possibility that Freeman would
testify. During a second meeting with Freeman, Stickney was told by Marsing and
Watson that they had directed Freeman not to testify on behalf of Taylor because Freeman
was a state employee.[2]
In their reply to Taylor's opposition, the
defendants addressed Taylor's factual assertions
only by saying that Taylor
had failed to cite any specific instances of denial of access to the courts.
The defendants did not introduce any affidavits or other evidence to refute Taylor's factual
assertions; instead, they relied on their legal arguments to support their
summary judgment motion.
The summary judgment motion was referred to a magistrate who issued a report
on January 14, 1987, in which she recommended that the defendants' motion be
granted because Taylor
had failed to show a genuine issue of material fact in connection with his
constitutional claims and had failed to establish personal participation by
some of the defendants. The district court issued an order on November 13,
1987, in which it adopted the magistrate's recommendation as to the defendants
for whom Taylor had been unable to show personal
participation and held that the remaining defendants did not deny Taylor access to the
courts.
STANDARD OF REVIEW
We review de novo the grant of summary judgment. Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir.1988). Summary judgment is only appropriate if, viewing the
evidence in the light most favorable to the party opposing the motion, the
court finds that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Lundy
v. 1045*1045
Union Carbide Corp., 695 F.2d 394, 396 (9th Cir.1982), cert.
denied, 474 U.S. 848, 106 S.Ct. 143, 88 L.Ed.2d 118 (1985). There is no
genuine issue of fact if the party opposing the motion "fails to make an adequate
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). There is also
no genuine issue of fact if, on the record taken as a whole, a rational trier
of fact could not find in favor of the party opposing the motion. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1355, 89 L.Ed.2d 538 (1986).
DISCUSSION
I. Liability of Individual Defendants
A. Eleventh Amendment Immunity
The district court entered summary judgment in favor of the Nevada
Department of Prisons on the basis of Eleventh Amendment immunity. The Nevada
Department of Prisons, as a state agency, clearly was immune from suit under
the Eleventh Amendment. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89,
100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984).
Thus, the district court's dismissal of the action as to the Department of
Prisons was proper.
B. Lack of Personal Participation
The court also entered judgment in favor of List, Wolff, Watson, and Belleville because Taylor
had failed to establish a genuine issue of material fact as to the personal
involvement of any of these defendants in the alleged violations. Liability
under section 1983 arises only upon a showing of personal participation by the
defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979). A supervisor is only liable for constitutional violations
of his subordinates if the supervisor participated in or directed the
violations, or knew of the violations and failed to act to prevent them. There
is no respondeat superior liability under section 1983. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d
675, 680-81 (9th Cir.1984).
List was the Attorney General for the State of Nevada
at the time the violations allegedly occurred, but was not directly responsible
for the prosecution of criminal charges against Taylor. Taylor
made no showing that List directed, participated in, or had knowledge of any
alleged misconduct on the part of Walsh, the Deputy Attorney General in charge
of prosecuting Taylor.
Similarly, Wolff was the Director of the Nevada State Prison and Taylor did not make a
sufficient showing of any personal participation, direction, or knowledge on
Wolff's part regarding any other prison officials' actions in violation of the
state court order. Thus, entry of judgment in favor of List and Wolff was
proper.
The only allegations Taylor made in his
opposition to the summary judgment motion regarding Belleville's
participation were that Belleville was the
Lieutenant in charge of the maximum security unit in which Taylor
was housed and that Belleville personally
stopped law clerks and law books from being presented to Taylor. None of the affidavits Taylor attached as exhibits contained any facts to support
the allegation that Belleville personally
prevented law clerks and law books from reaching Taylor.[3]
Also, none of the affidavits contained any facts showing Belleville knew of unconstitutional actions
by prison guards under his control and failed to prevent them. A summary
judgment motion cannot be defeated by relying solely on conclusory allegations
unsupported by factual data. Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th
Cir.1981). 1046*1046 Thus, entry of summary judgment in favor of Belleville was proper.
Entry of summary judgment in favor of Watson on the basis of lack of
personal participation was improper. In his opposition to the summary judgment
motion, Taylor alleged that Watson personally
stopped law clerks and law books from reaching Taylor
and that Watson participated in preventing Freeman from testifying on Taylor's behalf. The
affidavits from Taylor, Ybarra, and Stickney set forth facts which tended to
show personal participation in alleged violations by Watson. These facts
establish a genuine issue as to Watson's participation in actions which
allegedly deprived Taylor
of his constitutional rights. Thus, the district court erred in granting
summary judgment in favor of Watson.
The district court did not enter summary judgment in favor of Walsh on the
basis of lack of personal participation, although the defendants argued that Taylor's allegations as
to Walsh's personal participation were deficient. Taylor's allegations against Walsh were
wholly insufficient to establish section 1983 liability. Walsh's liability is
based solely on his promise to the state court that he would talk to prison
officials about the need for compliance with the state court's order regarding
access to the inmate law clerks. There is no showing by Taylor
that Walsh participated in or directed any alleged actions by the prison
officials' which hampered Taylor's
defense. Walsh may have known of the overall problem with access to the library
and to witnesses through Taylor's
communications with the state court, but there was no showing that Walsh knew
of specific instances of misconduct by prison officials and failed to act to
prevent them. Thus, summary judgment should have been entered in favor of Walsh
on the ground that Taylor
failed to allege a genuine issue of fact as to Walsh's personal participation
in the alleged violations.
II. The Merits of Taylor's
Claims Against the Remaining Defendants
Taylor
raised triable issues of fact regarding the personal participation of three
defendants — Marsing, Watson, and Freeman — in alleged constitutional
violations. To proceed under section 1983 against these defendants, Taylor must allege
deprivation of a constitutionally protected right under color of state law. Learned
v. City of Bellevue, 860 F.2d 928, 933 (9th Cir.1988), cert. denied,
489 U.S.
1079, 109 S.Ct. 1530, 103 L.Ed.2d 835 (1989). Taylor alleges that the
defendants acted in their official capacity to deprive him of his Fifth
Amendment due process right to meaningful access to the courts, Bounds
v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and his
Sixth Amendment right to self-representation, Faretta
v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The magistrate determined that Taylor
had failed to establish that any constitutional violation occurred. The
magistrate did not address Taylor's claims
regarding the defendants' interference with Taylor's and the law clerks' access to
witnesses. The magistrate stated that access to the courts was provided to Taylor during his
criminal trial because of his absolute right to counsel. According to the
magistrate, when Taylor rejected counsel in
favor of self-representation, the government was not required to provide Taylor with access to the law library to aid him in his
representation because the government had the right to select the means of
providing access to the courts and Taylor
had rejected the chosen means. The magistrate therefore recommended that the
defendants' summary judgment motion be granted.
In adopting the magistrate's recommendation, the district court also dealt
only with Taylor's complaint that the defendants
denied Taylor
access to the law library. The court stated that there was clear evidence that Taylor had access to the
library through the state court order. In response to Taylor's claim that the
prison officials did not abide by the state court order, the district court
merely noted that the failure by state officials to follow the rules set down
by a state court does not implicate a constitutional interest cognizable under 1047*1047 section 1983. Even assuming that a constitutional violation
was made out, according to the district court, the plaintiff did not offer any
evidence to support his contention.
A. Violation of the Sixth Amendment Right to Self-Representation
In Faretta, the Supreme Court held that a criminal defendant has the
right under the Sixth Amendment to reject court-appointed counsel and conduct
his own defense. 422
U.S. at 834-36, 95 S.Ct. at 2540-42. Taylor
argues that his right to self-representation was violated when the defendants'
denied him access to prison law clerks and witnesses and actively prevented a
witness from testifying on his behalf.
In Milton
v. Morris, 767 F.2d 1443 (9th Cir.1985), we held that the right to
self-representation necessarily includes and is premised upon the right of the
defendant to prepare a defense. Id. at
1445. Milton
involved facts similar to those of the present case. After the defendant in Milton had
rejected counsel and decided to represent himself, prison officials hampered
his efforts to contact expert witnesses and gave him no access to current law
books or witnesses. We noted that prison officials "not only affirmatively
failed to provide defense resources, but also materially impeded use of the
minimal tools for defense preparation which the trial court tried to
ensure." Id.
We then ruled that "time to prepare and some access to materials and
witnesses are fundamental to a meaningful right of representation. An
incarcerated defendant may not meaningfully exercise his right to represent
himself without access to law books, witnesses, or other tools to prepare a
defense." Id. at 1446 (citations omitted). We
acknowleged certain factors which would justify limitations on the defendant's
access to law books and witnesses, such as security concerns or "avoidance
of abuse by opportunistic or vacillating defendants." Id.
In recommending denial of Taylor's Sixth Amendment claim, the magistrate
relied on our decision in United
States v. Wilson, 690 F.2d 1267 (9th Cir.1982), cert. denied, 464
U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983). In Wilson, we held that the offer
of court-appointed counsel satisfies the government's Fifth Amendment
obligation to provide meaningful access to the courts, which was recognized by
the Supreme Court in Bounds. Id. at 1272.
We also stated that the Supreme Court never suggested in Faretta"that
the Sixth Amendment right to self-representation implies further rights to
materials, facilities, or investigative or educational resources that might aid
self-representation." Id. at
1271.
The magistrate's reliance on Wilson
was erroneous. In Milton, we stated that we did not need to determine
whether the Supreme Court's decision in Bounds would place an affirmative
duty upon the state to provide access to a law library for a pre-trial detainee
who has rejected counsel and chosen to represent himself[4]
because Faretta controls in such a case. 767 F.2d at 1446. We then went
on to hold that the Sixth Amendment right to self-representation recognized in Faretta
includes a right of access to law books, witnesses, and other tools necessary
to prepare a defense. Id.
If the evidence offered by Taylor is sufficient
to raise a genuine issue of material fact as to whether the defendants prevented
Taylor's access to law books and witnesses,
entry of summary judgment on Taylor's
Sixth Amendment claim was improper.
B. Sufficiency of Taylor's
Factual Allegations
1. Liability of Defendant Freeman
Taylor named Freeman, the prison psychiatrist
who ultimately refused to give expert testimony for Taylor, as a defendant in this action. Taylor failed, however,
to assert any basis for holding Freeman liable under section 1983. Taylor did not set forth any facts which showed that
Freeman 1048*1048 was under an official obligation to give expert testimony on
Taylor's
behalf. Thus, Freeman was not acting under color of his authority as a prison
employee when he made the decision not to testify. We have found no precedent
holding that a private individual's refusal to testify as a witness results in
a deprivation of the constitutional rights of the individual who requests the
testimony. The remedy for such a refusal is a motion to subpoena the witness
under Fed.R.Crim.P. 17, not an action under section 1983.
Therefore, since Freeman essentially acted as a private individual when he
refused to testify, his refusal is not sufficient by itself to expose Freeman
to liability under section 1983.
Freeman's refusal to testify might expose him to section 1983 liability if Taylor had shown that Freeman conspired with Marsing and
Watson to deprive Taylor
of his constitutional right to self-representation. A private person may act
under color of state law if he "willfully participate[s] in joint action
with state officials to deprive others of constitutional rights." United Steelworkers of America v. Phelps Dodge Corp., 865
F.2d 1539, 1540 (9th Cir.1989) (en banc).
To be liable, however, the private person must share the common objective of
the conspiracy. Id. at 1541. Mere passive acquiescence in the direction of
state officials generally is not sufficient. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983).
Here, Taylor has failed to set forth any
facts which tend to show that Freeman conspired with Marsing and Watson
to deprive Taylor of access to the witnesses and
legal materials needed to prepare Taylor's
defense. The facts show that Freeman merely obeyed Marsing and Watson's
direction that he not testify. Thus, Taylor's allegations with regard to Freeman
are insufficient to establish liability under section 1983 and the entry of
summary judgment in favor of Freeman was proper.
2. Liability of Defendants Marsing and Watson
Taylor's
factual allegations are sufficient to raise a genuine issue of material fact
with regard to a possible violation of his right to self-representation by
defendants Marsing and Watson. The prison officials' denial of personal access
to the law library and to witnesses may have been justified by security
concerns. At the time the alleged constitutional violations occurred, Taylor was being confined
in maximum security and was segregated from the general prison population
because of his alleged participation in the prison riot and murder.
Taylor's affidavits, however, assert that
Marsing and Watson also prevented the law clerks who
were assisting Taylor
pursuant to the state court order from having any access to witnesses. Taylor was denied access
to the law clerks on numerous occasions. He thus was not able to obtain the law
books he needed to prepare his defense and was not able to communicate with the
law clerks about developments at trial. When the law clerks secured Freeman as
an expert witness for the defense, Marsing and Watson allegedly prevented
Freeman from testifying. In light of our decision in Milton,
these facts create a genuine issue as to whether Marsing's and Watson's actions
so completely hindered Taylor's
ability to prepare a defense that his right to self-representation was denied.
The defendants did not establish the absence of a genuine issue of material
fact since they did not refute any of Taylor's
specific factual allegations. They did not introduce any evidence showing that
security concerns justified the specific denials of the law clerks' access to
witnesses or Taylor's
access to the law clerks. The defendants stated generally that the numerous
papers Taylor
filed with the court during his state trial showed he must have had adequate
access to law books. An examination of these papers, which were attached as an
exhibit to the defendants' motion for summary judgment, reveals that the papers
were almost completely devoid of case citations except for cites to a few Nevada cases and certain
landmark Supreme Court cases. These papers, contrary to the defendants'
assertion, do not clearly demonstrate that Taylor had sufficient 1049*1049 access to the law library and to witnesses to prepare
his defense. Thus, the entry of summary judgment in favor of defendants Marsing
and Watson was improper because Taylor
raised genuine issues of material fact as to a possible Sixth Amendment
violation and the defendants failed to establish the absence of a genuine
issue.
We note that the harm resulting from the asserted deprivation of Taylor's right to meaningful self-representation has been
substantially remedied through the Nevada Supreme Court's reversal of Taylor's conviction.
Thus, if Taylor can prove at trial that Marsing
and Watson did violate his Sixth Amendment right, damages for the violation may
be nominal unless Taylor
also can prove some other harm resulted from the constitutional deprivation.
CONCLUSION
The district court correctly entered summary judgment in favor of the Nevada
Department of Prisons, List, Wolff, and Belleville
on the basis of immunity and lack of personal participation. Summary judgment
properly was entered in favor of Walsh since Taylor failed to raise a genuine issue as to
Walsh's personal participation in the alleged constitutional violation. Summary
judgment in favor of Freeman was proper because Taylor failed to assert a basis for holding
Freeman liable under section 1983. Thus, we affirm the judgment with respect to
those defendants.
Entry of summary judgment in favor of Watson on the basis of lack of
personal participation was improper since Taylor
raised a triable issue as to Watson's participation in the alleged
constitutional violation. In Milton,
we recognized that a pre-trial detainee's right of self-representation must
include a right of access to witnesses and law books so that the accused can
prepare a defense. Taylor
offered evidence in the form of affidavits which is sufficient to raise a
genuine issue of material fact as to a possible violation of his right to
represent himself. The defendants Marsing and Watson failed to counter this
evidence and thus did not establish the absence of a genuine issue. Therefore,
the district court's entry of summary judgment in favor of Marsing and Watson
on Taylor's
Sixth Amendment claim was improper. We reverse the judgment with respect to
defendants Marsing and Watson and remand the case for trial.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
______________________________
[*]
The panel finds this case appropriate for submission without oral argument
pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
[1]
The delay in prosecution of this action was caused by issuance of a stay
pending completion of the criminal proceedings against Taylor.
[2]
The defendants contend that the evidence contained in the Ybarra and Stickney
affidavits is nothing more than "hearsay upon hearsay." Ybarra's and
Stickney's assertions that they were denied access to any witnesses and denied
access to Taylor
on numerous occasions are not hearsay. Both Ybarra and Stickney assert that
Freeman was going to testify, a factual allegation which does not constitute
hearsay. Ybarra lacked personal knowledge of Marsing's and Watson's actions in
directing Freeman not to testify because Ybarra's assertions were based on a
reading of Stickney's notes. Stickney's affidavit, however, contained the same
evidence and Stickney had personal knowledge since he was present at the
meeting when Marsing and Watson allegedly said Freeman was not going to
testify.
Stickney's statement that he was informed by Marsing and
Watson that they had directed Freeman not to testify does contain a hearsay
element. The statement could not be offered to establish that Marsing
and Watson had in fact directed Freeman not to testify because the statement
would then be offered for the truth of the matter asserted. The statement could
be offered, however, for the nonhearsay purpose of
showing that Marsing and Watson were the individuals who told Stickney that
Freeman was not going to testify. That evidence is probative on the issue of
whether Freeman was directed not to testify and tends to create a genuine issue
of material fact when combined with the fact that Freeman previously had
indicated willingness to testify and that Marsing and Watson were present at
the second meeting with Stickney.
[3]
One of the affidavits submitted by Taylor
contained a statement to the effect that the affiant was informed and believed
that Belleville was involved in depriving Taylor of access to law
clerks and law books. The statement does not raise a triable issue regarding Belleville's involvement.
To raise such an issue, the statement would have to be made on personal
knowledge, not information and belief. Fed.R.Civ.P. 56(e).
[4]
In Milton, we noted that Wilson did not conclusively resolve this issue
because the defendant in Wilson
had ultimately accepted representation by counsel at trial. We also noted that
this issue remains unsettled in the other circuits. 767 F.2d at 1446 n. 2.