# Latimore v. Suffolk County House of Correction

> District Court, D. Massachusetts · December 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10199926

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** December 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199926

## How later opinions describe it (automated extraction)

- stating “rule” that if party belatedly raises argument “in the district court but that court, without reservation, elects to decide it on the merits, the argument is deemed preserved for later appellate review”
- affirming district court’s disregard of LR. 56.1 response as constituting beliefs “not factually based” and amounting to “conclusory, self-serving statements”
- stating authentication requirement is “rarely onerous”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JASON LATIMORE,
Plaintiff,

v. CIVIL ACTION NO.
14-13378-MBB
KENNETH TROTMAN, RYAN DORGAN,
ROSEANNE BARROWS, RICHARD LIBBY,
PAULA SULLIVAN, and DANIEL ALLEN,
Defendants.

MEMORANDUM AND ORDER RE:
DEFENDANTS KENNETH TROTMAN, RYAN DORGAN, ROSEANNE BARROWS,
RICHARD LIBBY, PAULA SULLIVAN, AND DANIEL ALLEN’S MOTION TO
STRIKE PLAINTIFF’S STATEMENT OF DISPUTED FACTS
(DOCKET ENTRY # 258)

December 3, 2021

BOWLER, U.S.M.J.
Pending before this court is a summary judgment motion
filed by defendants Kenneth Trotman (“Trotman”), Ryan Dorgan
(“Dorgan”), Roseanne Barrows (“Barrows”), Paula Sullivan
(“Sullivan”), Daniel Allen (“Allen”), and Richard Libby
(collectively “defendants”). (Docket Entry # 242). Defendants
move to strike certain material from being used in consideration
of their motion for summary judgment. (Docket Entry # 258).
Plaintiff Jason Latimore (“plaintiff”) opposes the motion.
(Docket Entry # 260).
BACKGROUND
On May 17, 2019, defendants filed a Local Rule 56.1 (“LR.
56.1”) statement of material facts (“defendants’ LR. 56.1
statement”) in conjunction with their motion for summary
judgment. (Docket Entry ## 242, 244). On July 22, 2019,
plaintiff filed a LR. 56.1 statement of disputed facts in
support of his opposition to the summary judgment motion
(“plaintiff’s LR. 56.1 statement”). (Docket Entry # 256).

Defendants seek to strike all paragraphs in plaintiff’s LR. 56.1
statement because they: (1) are not supported by adequate
citations to the summary judgment record and fail to controvert
the facts in defendants’ LR. 56.1 statement (Docket Entry # 259,
pp. 2-4); and (2) rely on “inadmissible hearsay,” speculation,
legal argument, conclusory statements, and subjective beliefs
(Docket Entry # 259, pp. 1-3, 5). In addition to these
arguments attacking all of the paragraphs, defendants argue that
paragraphs 44 to 101 in plaintiff’s LR. 56.1 (which describe
contents of inaudible audiovisual recordings on May 29, 2014)
are not authenticated and include plaintiff’s interpretation of
the inaudible audiovisual recordings. (Docket Entry # 259, pp.

4-5). Defendants also seek to strike exhibits A1 to A11 and B1
to B6 (which consist of plaintiff’s handwritten transcript of
audio video recordings), on the grounds they are not
authenticated and constitute inadmissible evidence. (Docket
Entry ## 258, 259). Defendants further move to strike the
paragraphs that rely exclusively on exhibits A1 to A11 and B1 to
B6 (Docket Entry # 252-1, pp. 101-117). (Docket Entry # 259, p.
8).
On December 23, 2019, approximately four and a half months
after defendants filed the motion to strike, plaintiff filed an
opposition to the motion. (Docket Entry # 260). The three-page

opposition globally maintains that: (1) the evidence submitted
in plaintiff’s LR. 56.1 statement and the exhibits cited are
admissible; and (2) defendants fail to establish that the motion
to strike plaintiff’s LR. 56.1 statement should be granted.1
(Docket Entry # 260). On January 7, 2020, defendants filed a
reply to plaintiff’s opposition on the basis it is untimely and
fails to substantively oppose defendants’ arguments to strike
plaintiff’s LR. 56.1 statement. (Docket Entry ## 262, 263).
DISCUSSION
A. Untimeliness of Plaintiff’s Opposition
As noted, defendants seek to strike plaintiff’s opposition
as untimely. (Docket Entry # 262, p. 1) (Docket Entry # 263,

pp. 1-3)). Local Rule 7.1(B)(2) requires a party to file an
opposition within 14 days after service of the motion. See LR.
7.1(B)(2). When a party fails to file a timely opposition, a
court may consider the motion unopposed or the opposition waived

1 Plaintiff’s argument regarding exhibits A1 to A11 and B1 to
B6 (Docket Entry # 260, p. 2) is summarized and addressed in
part E.
and allow the motion. NEPSK, Inc. v. Town of Houlton, 283 F.3d
1, 7-8 (1st Cir. 2002) (when party fails to file timely
opposition, court may consider it unopposed); see also Cronin v.
Commonwealth of Mass., Civil Action No. 03-11749-RGS, 2004 WL
224565, at *1 (D. Mass. Feb. 5, 2004) (granting motion to

dismiss when no opposition filed or extension sought); Cook v.
McLaughlin, 917 F. Supp. 79, 81 (D. Mass. 1996) (opposition
untimely and stricken for not filing in 14 days) (citation
omitted).
The decision of whether to allow an unopposed motion,
however, is within a court’s discretion. Ramsdell v. Bowles, 64
F.3d 5, 7 (1st Cir. 1995) (acknowledging district court’s
“‘great leeway in the application and enforcement of its local
rules’”) (citation omitted); United States v. Roberts, 978 F.2d
17, 20 (1st Cir. 1992) (district court has “great leeway in the
application and enforcement of its local rules”). Exercising
this court’s discretion and in preference of a merits-based

decision, allowing the motion to strike based on plaintiff’s
untimely opposition is not appropriate.
B. Failure to Respond to Numbered Paragraphs and Waiver
Defendants submit that plaintiff’s LR. 56.1 statement
(Docket Entry # 256) does not respond to the numbered paragraphs
in defendants’ LR. 56.1 statement on a paragraph-by-paragraph
basis. (Docket Entry # 259, pp. 1, 3-4). They seek to strike
plaintiff’s entire LR. 56.1 statement and, “[w]ithout waiving
their general motion to strike all relevant portions,” move to
strike certain paragraphs. (Docket Entry # 259, pp. 1, 3-4).
In lieu of striking plaintiff’s entire LR. 56.1 statement
because it does not controvert defendants’ 61-paragraph LR. 56.1

statement (Docket Entry # 244), this court, in its discretion,
will examine the paragraphs based on the arguments defendants
proffer. See Swallow v. Fetzer Vineyards, 46 F. App’x 636, 638–
39 (1st Cir. 2002) (affirming lower court’s striking entire
response but noting approach was not “useful for purposes of the
complex factual analysis this case requires”) (unpublished);
Aulisio v. Baystate Health Sys., Inc., Civil Action No. 11-
30027-KPN, 2012 WL 3957985, at *2 (D. Mass. Sept. 7, 2012)
(rejecting defendant’s argument to strike entirety of
plaintiff’s LR. 56.1 statement); see also Mackey v. Town of
Tewksbury, Civil Action No. 15-12173-MBB, 2020 WL 68243, at *5
(D. Mass. Jan. 7, 2020) (examining specific paragraphs rather

than striking entire LR. 56.1 statement).
Defendants additionally argue in the reply brief that
plaintiff provides “no substantive opposition” to rebut their
arguments to strike plaintiff’s LR. 56.1 statement. (Docket
Entry # 263, p. 1). Plaintiff’s opposition to the motion to
strike raises conclusory and general arguments that do not
address defendants’ specific arguments in their supporting
memorandum (Docket Entry # 259) except for the argument to
strike exhibits A1 to A11 and B1 to B6. (Docket Entry # 260).
Except for the argument regarding exhibits A1 to A11 and B1 to
B6, plaintiff therefore waives any other objection to the motion
to strike. See Curet-Velázquez v. ACEMLA de Puerto Rico, Inc.,

656 F.3d 47, 54 (1st Cir. 2011); Coons v. Industrial Knife Co.,
Inc., 620 F.3d 38, 44 (1st Cir. 2010). This court does not
intend to avoid this waiver (which this court reserves as a
basis to strike the paragraphs in plaintiff’s LR. 56.1 statement
that are stricken on other grounds) and addresses the merits of
defendants’ other arguments as an alternative means to strike
these paragraphs. See Negron-Almeda v. Santiago, 528 F.3d 15,
26 (1st Cir. 2008) (stating “rule” that if party belatedly
raises argument “in the district court but that court, without
reservation, elects to decide it on the merits, the argument is
deemed preserved for later appellate review”) (emphasis added).
C. LR. 56.1

Under LR. 56.1, a nonmoving party admits any fact in the
moving party’s LR. 56.1 statement if the nonmoving party fails
to controvert the fact in the nonmoving party’s LR. 56.1
statement by citing to “affidavits, depositions and other
documentation.” LR. 56.1. Defendants therefore seek to
establish that the paragraphs in plaintiff’s LR. 56.1 statement
fail to controvert the facts in defendants’ corresponding LR.
56.1 statement and thereby admit the facts in defendants’ LR.
56.1 statement. (Docket Entry # 259).
As noted, district courts “‘enjoy broad latitude’” in
administering and enforcing local rules. NEPSK, 283 F.3d at 6
(citation omitted). As an anti-ferret rule, LR. 56.1 functions

to focus a court’s attention on the facts that are genuinely
disputed. See Cabán Hernández v. Philip Morris USA, Inc., 486
F.3d 1, 7 (1st Cir. 2007) (citation omitted); accord CMI Capital
Mkt. Inv., LLC v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008)
(purpose of “rule is to relieve the district court of any
responsibility to ferret through the record to discern whether
any material fact is genuinely in dispute”); Mariani-Colón v.
Dep’t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st
Cir. 2007). The rule is designed “to reduce the burden on trial
courts and ‘prevent parties from unfairly shifting the burdens
of litigation to the court.’” Advanced Flexible Cirs., Inc. v.
GE Sensing & Inspection Techs. GmbH, 781 F.3d 510, 520-21 (1st

Cir. 2015) (quoting Cabán Hernández, 486 F.3d. at 8).
In pertinent part, the rule requires the party opposing
summary judgment to:
include a concise statement of material facts of record as
to which it is contended that there exists a genuine issue
to be tried, with page references to affidavits,
depositions and other documentation . . . Material facts of
record set forth in the statement required to be served by
the moving party will be deemed for purposes of the motion
to be admitted by opposing parties unless controverted by
the statement required to be served by opposing parties.

LR. 56.1 (emphasis added). Relative to the present dispute, the
language requires the nonmoving party (plaintiff) to provide
citations to the record, i.e., “affidavits, depositions, or
other documentation,” with page references. LR. 56.1.
Moreover, the rule deems admitted the facts in defendants’ LR.
56.1 statement that plaintiff’s LR. 56.1 response does not
controvert. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12
(1st Cir. 2003); Stonkus v. City of Brockton Sch. Dep’t, 322
F.3d 97, 102 (1st Cir. 2003) (citing LR. 56.1 and deeming
admitted undisputed material facts that plaintiff failed to
controvert). Specific paragraphs are addressed below regarding
plaintiff’s failure to controvert those paragraphs and the lack
of a supporting citation.
D. Lack of Citations to Summary Judgment Record
Defendants seek to strike paragraphs two, three, five,
seven, ten to 14, 22, 23, 26, 31 to 33, 38, 42, 119, 122, 124 to
126, 130, 133, 135, 136, and 142 to 162 in plaintiff’s LR. 56.1
statement from the summary judgment record because of the
absence of any citation to the summary judgment record. (Docket
Entry # 259, pp. 3-4). As explained in the previous section,
LR. 56.1 unambiguously states that the party opposing summary

judgment, i.e., plaintiff, “shall include a concise statement of
the material facts of record as to which it is contended that
there exists a genuine issue to be tried, with page references
to affidavits, depositions and other documentation.” LR. 56.1
(emphasis added). Although it is not always apparent whether
the nonmoving party complied with the rule with respect to a

particular statement, a non-party’s complete omission of
citations to the record in a paragraph “leaves no doubt” about
his violation of the rule. Zimmerman v. Puccio, 613 F.3d 60, 63
(1st Cir. 2010) (“defendants’ failure to provide any citations
whatsoever in their opposition statement leaves no doubt as to
their noncompliance”); Aulisio, 2012 WL 3957985, at *3 (stating
LR. 56.1 requires party to support any fact with citation to
record); see also Amoah v. McKinney, Civil Action No. 4:14-
40181-TSH, 2016 WL 6134119, at *2-3 (D. Mass. Sept. 2, 2016).
Therefore, due to the absence of citations to the record,
paragraphs two, three, five, seven, ten to 14, 22, 23, 26, 31 to
33,2 38, 42, 119, 122, 124 to 126, 130, 133, 135, 136, 142 to

152, 154 to 156, 159, and 161 to 162 are stricken from the
summary judgment record. See, e.g., Aulisio, 2012 WL 3957985,
at *3 (striking paragraphs in opposing party’s LR 56.1 statement

2 The second sentence of paragraph 32 does not cite a reference
to the record, and the first sentence fails to include a page
number when citing to the deposition. See LR. 56.1 (party
opposing summary judgment “shall include” statement of material
facts “with page references to . . . depositions”).
as lacking citations to record); see also Amoah, 2016 WL
6134119, at *2-3. Paragraphs 153, 157, 158, and 160, however,
are not stricken for lacking a citation to the record because
these paragraphs sufficiently identify the intended citations,
which consist of state court dockets in three criminal

prosecutions involving plaintiff and the filings therein by
docket entry number. (Docket Entry # 256, ¶ 153) (citing Docket
Entry ## 244-24, 244-25, and 244-26 in substance); (Docket Entry
# 256, ¶ 157) (citing Docket Entry # 244-24, p. 22, in
substance); (Docket Entry # 256, ¶ 158) (citing Docket Entry #
244-24, p. 22, in substance); (Docket Entry # 256, ¶ 160)
(citing Docket Entry # 244-24, pp. 22-23, in substance).
Defendants also seek “to strike all of the paragraphs in
[plaintiff’s LR. 56.1 statement] that are unsupported by record
references.” (Docket Entry # 259, p. 4). Having reviewed all
remaining paragraphs in plaintiff’s LR. 56.1 statement, the
following are excluded as unsupported by the citation or as

lacking a citation: paragraph 21 (second and third sentences);
paragraph 25 (first and second sentences);3 paragraph 36;
paragraph 41 (second sentence); paragraph 43 (second, third, and

3 Paragraph 25 cites the relevant grievance to support the
third sentence whereas the first two sentences respectively cite
“camera footage” and “video” without referring to the cited
camera footage and video in the record with the time stamps and
camera angle or location.
fourth sentences); and paragraph 131. To elaborate, with
respect to paragraph 36, the paragraph states that “[o]n June
27th, 2014[,] Officer Misci delivered property to plaintiff from
a separate incident involving an altercation with another inmate
on June 26th, 2014” that “was the same property Sgt. Depina
delivered on June 3rd, 2014 distinct from the May 29th, 2014

missing property.” (Docket Entry # 256, p. 8, ¶ 36). The
paragraph cites an unsworn grievance alleging that plaintiff
spoke with “Sgt. Williams” who “said my Brown Adress[sic] Book
and 2 books of stamps are missing” and a disciplinary report
regarding the June 26, 2014 altercation. First, the unsworn
statement in the grievance (Docket Entry # 252-1, p. 29)
constitutes hearsay if used to support the first sentence
(Docket Entry # 256, p. 8, ¶ 36, sent. one). See Bennett v.
Saint-Gobain Corp., 507 F.3d 23, 26, 28-29 (1st Cir. 2007)
(supervisor’s statement “that he wanted to get rid of older”
workers in unsworn internal grievance considered hearsay); see

also Gómez-González v. Rural Opportunities, Inc., 626 F.3d at
666 (unsworn, unauthenticated email inadmissible on summary
judgment). Second, neither the grievance nor the disciplinary
report fully supports what the first sentence states. The
unsworn disciplinary report simply describes the altercation and
does not refer to Officer Misci’s delivery of property on June
27, 2014. (Docket Entry # 252-1, p. 28).
The second sentence in paragraph 36 is stricken not only
because it is “unsupported by proper record references” under
LR. 56.1, as argued by defendants, but because it constitutes
argument as well as a conclusory statement, as also argued by
defendants (Docket Entry # 259, pp. 1-3). See Torrech-Hernández

v. Gen. Elec. Co., 519 F.3d 41, 47 n.1 (1st Cir. 2008)
(affirming district court’s disregard of LR. 56.1 response as
constituting beliefs “not factually based” and amounting to
“conclusory, self-serving statements”). In addition, the second
sentence lacks a citation to the record and, if plaintiff
intended to cite the disciplinary report and grievance cited to
support the first sentence, the second sentence is deficient for
the same reasons.
As to paragraph 41, the cited and unsworn “To Whom It May
Concern” letter dated July 17, 2014 (Docket Entry # 252-1, p.
30) used to support the first sentence (Docket Entry # 256, p.
9, ¶ 41) is not cited as support for the second sentence. The

second sentence lacks any citation to the record. It also
constitutes an argument that certain property remains missing
after plaintiff’s “legal property” was secured in the law
library on July 22, 2014 (Docket Entry # 256, p. 9, ¶ 41).
Turning to paragraph 131, the grievance and disciplinary report
plaintiff cites to support the first sentence to show that “Sgt.
Depina” delivered property “on June 3, 2014 distinct from the
May 29th, 2014 missing property” (Docket Entry # 256, p. 23, ¶
131) (Docket Entry # 252-1, pp. 28-29) do not support the stated
assertion for which these exhibits are cited, and the paragraph
itself also constitutes argument, as asserted by defendants.
(Docket Entry # 259, pp. 1-3, 5).

E. Authentication: Exhibits A1 to A11, B1 to B6, and Related
Paragraphs
Defendants next seek to strike exhibits A1 to A11 and B1 to
B6 and paragraphs 19, 102 to 113, 115 to 118, 123, 139, and 140
in plaintiff’s LR. 56.1 statement because they rely on these
exhibits. (Docket Entry # 259, pp. 1-2, 8). The exhibits
consist of plaintiff’s handwritten, transcribed interviews of
Sullivan and Allen conducted as a part of a Suffolk County
Sheriff’s Investigative Division (“SID”) investigation into the
purported hostilities between plaintiff on the one hand and
Sullivan and Allen on the other hand. (Docket Entry # 252-1,
pp. 101-117). Defendants maintain that the “transcript” (Docket

Entry # 252-1, pp. 101-117) is not properly authenticated and
therefore constitutes “inadmissible evidence.” (Docket Entry #
259, pp. 1-2, 8). In response, plaintiff argues that exhibits
A1 to A11 and B1 to B6 (Docket Entry # 252-1, pp. 101-117) are
“factual evidence,” which can be verified by compact discs
defendants provided plaintiff during discovery. (Docket Entry #
260, p. 2). Plaintiff filed five compact discs, one of which is
the audio compact disc of the SID interviews (“the fifth compact
disc”), which this court accessed and reviewed.4 (Docket Entry #
260, p. 2).
To be admissible at trial, a document must be
authenticated. Fed. R. Evid. 901 (“Rule 901”). In general,

authentication requires a showing “sufficient to support a
finding that the” document or material “is what the proponent
claims it is.” Fed. R. Evid. 901(a). The authentication
requirement is not demanding and may be satisfied with
“competent testimony” indicating that the document is what it
appears to be. See Goguen ex rel. Est. of Goguen v. Textron,
Inc., 234 F.R.D. 13, 16-17 (D. Mass. 2006) (stating
authentication requirement is “rarely onerous”). Indeed, “‘a
document can be authenticated under Rule 901(b)(1) by a witness
who wrote it, signed it, used it, or saw others do so.’” Joseph
v. Lincare, Inc., 989 F.3d 147, 156 (1st Cir. 2021) (citation
and internal brackets omitted). Certain categories of documents

4 In the motion to strike, defendants do not adequately develop
an argument to strike the fifth compact disc labeled SID
Interviews. See Coons, 620 F.3d at 44. This court successfully
accessed and listened to the fifth compact disc of the SID
interviews. The fifth compact disc is therefore part of the
summary judgment record. Defendants do seek to strike
plaintiff’s related exhibits, which consist of plaintiff’s
handwritten transcript of the SID interviews (Docket Entry #
252-1, pp. 101-117). Defendants also seek to strike the LR.
56.1 paragraphs which cite these exhibits.
or material are self-authenticating under Fed. R. Evid. 902 and
require no extrinsic testimony.
Relative to the case at bar, transcripts of an audio or
video recording are subject to the authentication requirement.5
See United States v. Martínez-Lantigua, 857 F.3d 453, 457 (1st

Cir 2017); see also O’Brien, 943 F.3d at 520 n.3, 531. Whereas
defendants likely produced the audio recording of the SID
interviews, they did not produce the transcript, and they object
to its authenticity. Cf. Lincare, 989 F.3d at 157 (citing
McQueeney v. Wilmington Tr. Co., 779 F.2d 916, 929-30 (3d Cir.
1985)). When authentication is challenged on summary judgment,
at a minimum plaintiff must sufficiently explain how the
transcript is capable of authentication at trial. See Fed. R.
Civ. P. 56(c)(2) advisory committee’s note to 2010 amendment;
see also Lincare, 989 F.3d at 155 n.4. A party offering a

5 A video or audio recording is also subject to authentication
at trial and, when challenged, on summary judgment. See O’Brien
v. Town of Bellingham, 943 F.3d 514, 520 n.3, 531 (1st Cir.
2019). Defendants adequately authenticated the unchallenged
three compact discs of the May 29, 2014 inventory and transport
of items with affidavits, including an affidavit by an
individual familiar with the cameras, their locations, and the
recording system used. (Docket Entry ## 244-14, 244-18); see
Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal
Evidence, § 9:14 (4th ed. 2021) (discussing Rule 901(b)(1) and
(b)(9) to authenticate recording). The audio or video
recording, as opposed to the transcript, constitutes the
evidence at trial and controls if there is any difference
between them. See United States v. Carbone, 798 F.2d 21, 26
(1st Cir. 1986). Plaintiff does not move to strike defendants’
three compact discs based on lack of authentication.
transcript must show it is accurate, which can be shown by
testimony of the transcriber that it was accurately prepared or
by testimony of a person who was party to or heard the original
conversation that the transcript is accurate. See Christopher
B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence, § 9:14

(4th ed. 2021) (authentication satisfied by testimony from
scrivener or person who heard original conversation); see also
United States v. West, 948 F.2d 1042, 1044 (6th Cir. 1991)
(stating when parties dispute transcript’s accuracy, transcriber
should attest to accuracy); United States v. Rochan, 563 F.2d
1246, 1251 (5th Cir. 1977) (party who engaged in the
conversation can testify that transcript faithfully reproduces
conversation). As explained by the First Circuit in Carbone,
transcripts are “authenticated in the same manner as tape
recordings that are offered in evidence, i.e., by testimony as
to how they were prepared, the sources used, and the
qualifications of the person who prepared them.” Carbone, 798

F.2d at 26.
Exhibits A1 to A11 and B1 to B6 consist of plaintiff’s
handwritten transcript of Sullivan’s and Allen’s interviews
conducted as a part of the SID investigation. (Docket Entry #
252-1, pp. 101-17). Plaintiff was not present during the
interviews and does not point to potential testimony by a person
who participated in the SID interviews as authenticating
plaintiff’s transcript of the interviews (Docket Entry # 252-1,
pp. 101-117). Plaintiff also fails to explain his
qualifications to transcribe the interviews and the preparation
of the transcript to ensure its accuracy. Plaintiff’s position
that defendants provided the “SID interview CD[] . . . in

discovery” (Docket Entry # 260, p. 2) is probative of the
authenticity of the compact disc, see generally Lincare, 989
F.3d at 157 (addressing authentication of document, as opposed
to transcript or a recording, and noting that party’s production
of document during discovery is probative of authentication),
but not sufficient to authenticate a transcript of the compact
disc authored by the non-producing, opposing party. Although
the authentication requirement is not demanding, see Goguen, 234
F.R.D. at 16-17, plaintiff fails to explain how the handwritten
transcript is capable of authentication at trial. See Fed. R.
Civ. P. 56(c)(2) advisory committee’s note to 2010 amendment;
see also Martínez-Lantigua, 857 F.3d at 457 (transcript of audio

that accompanied surveillance video properly authenticated by
testimony of agent personally involved in recording).
In addition, the transcript is not the kind of material
that qualifies as self-authenticating under the Federal Rules of
Evidence. See Fed. R. Evid. 902. The transcript sets out
purportedly verbatim recitations of the interviews, which are
not lengthy or voluminous. As such, the transcript does not
constitute a summary prepared to establish the contents of a
voluminous recording. See Fed. R. Evid. 1006 (party “may use a
summary, chart, or calculation to prove the content of
voluminous . . . recordings . . . that cannot be conveniently
examined in court”); see Colón-Fontanez v. Municipality of San

Juan, 660 F.3d 17, 29-30 (1st Cir. 2011) (admitting chart
encompassing summary of plaintiff’s extensive work attendance);
United States v. Milkiewicz, 470 F.3d 390, 398 (1st Cir. 2006)
(most cases involving a summary include voluminous originals).
In sum, defendants’ authentication challenge is well taken.
Furthermore, because exhibits A1 to A11 and B1 to B6 (Docket
Entry # 252-1, pp. 101-117) fail to satisfy the authentication
requirement, they are stricken from the summary judgment record.
In the event this court strikes an exhibit or document that is
the only citation provided to support a paragraph in plaintiff’s
LR. 56.1 statement, the paragraph does not comply with LR 56.1
and, accordingly, is likewise stricken from the record. See LR.

56.1; Amoah, 2016 WL 6134119, at *2-3 (striking statement of
facts in nonmoving party’s opposition for failure to comply with
LR. 56.1 as argumentative and lacking citation to evidence);
Aulisio, 2012 WL 3957985, at *3 (striking paragraphs in opposing
party’s LR. 56.1 statement as not supported by citation to
record). Here, paragraphs 19, 102 to 104, 105 (first sentence
only), 106 to 108, 109 (second and third sentences only), 110
(first sentence and last clause of second sentence only), 111,
112, 113 (third and fourth sentences only), 115 (second sentence
only),6 116, 117, 118 (third sentence only), 123, 139, and 140 in
plaintiff’s LR. 56.1 statement rely exclusively on various
portions of exhibits A1 to A11 and B1 to B6 for support.

(Docket Entry # 252-1, pp. 101-17). These paragraphs or
portions thereof are therefore stricken from the record.
F. Speculative, Argumentative, and Unsupported Paragraphs
Next, defendants seek to strike all paragraphs in
plaintiff’s LR. 56.1 statement as legal argument, speculation,
conclusory statements, unsupported characterizations, and
subjective beliefs. (Docket Entry # 259, pp. 1, 5-8).
Defendants specifically highlight and address paragraphs four,
six, eight, nine, 20, 24, 30, 35, 40, 132, and 134.
Speculative assertions and conclusory statements in a
nonmoving party’s statement of material facts do not create a
genuine or a material fact sufficient to warrant proceeding to

trial. See Chin v. Garda CL New England, Inc., Civil Action No.
15-13110-TSH, 2017 WL 3526253, at *2 (D. Mass. Aug. 16, 2017)
(declining to rely on conclusory facts in plaintiff’s LR. 56.1
statement); O’Brien v. Town of Agawam, 440 F. Supp. 2d 3, 5 n.1
(D. Mass. 2006) (disregarding conclusory statements and

6 Exhibits A3 to A5 provide the primary support for the second
sentence.
substantive arguments in nonmoving party’s LR. 56.1 statement).
A court need not “take at face value” statements in a nonmoving
party’s LR 56.1 statement of the nonmoving party’s “subjective
beliefs,” even if offered in the form of deposition testimony,
when those subjective beliefs “are not factually based and

merely constitute conclusory, self-serving statements.”
Torrech-Hernández, 519 F.3d at 47 n.1.
As previously noted, if statements in a nonmoving party’s
LR. 56.1 statement are unsupported by their citation to the
summary judgment record, the statements may be stricken. See
Amoah, 2016 WL 6134119, at *3 (striking statements in non-
movant’s LR. 56.1 statement as “argumentative,” “without any
citation to the evidence,” and with inaccurate citations to
evidence); Aulisio, 2012 WL 3957985, at *2-3. Statements
regarding the law or legal argument are also not properly a part
of a LR. 56.1 statement of facts. See Dukanci v. Ann Inc.
Retail, 117 F. Supp. 3d 115, 117 n.2 (D. Mass. 2015) (statements

of legal argument in nonmoving party’s statement of facts fail
to comply with LR. 56.1); Matt v. HSBC Bank USA, 968 F. Supp. 2d
351, 354 n.2 (D. Mass. 2013) (legal arguments “have no place in
a party’s concise statement of facts”); Neponset Landing Corp.
v. Nw. Mut. Life Ins. Co., 902 F. Supp. 2d 149, 153 (D. Mass.
2012) (not crediting as facts LR. 56.1 statements that merely
reflect counsel’s argument). It is not appropriate to include
argument in a response to a statement of material fact. See
Aulisio, 2012 WL 3957985, at *3 (criticizing LR. 56.1 concise
statement of facts that read like argument).
With respect to paragraph four in plaintiff’s LR. 56.1
statement, it states that Sullivan was “threatening” to

plaintiff and that she filed a formal disciplinary report
against plaintiff “in retaliation” for plaintiff filing a
grievance.7 (Docket Entry # 256, p. 2, ¶ 4). Whereas this court
will consider the cited disciplinary report, paragraph four,
which includes language stating plaintiff’s subjective belief
that Sullivan “threaten[ed]’” plaintiff and filed the report “in
retaliation,” is stricken as subjective belief and/or
speculation.
In paragraph 20, plaintiff states that SID “intentionally
failed to investigate” an incident in which plaintiff claims his
rights were violated. (Docket Entry # 256, p. 5, ¶ 20). To
support this assertion, plaintiff cites a grievance letter he

made to the Superintendent of the Suffolk County House of
Correction. (Docket Entry # 252-1, pp. 12-14). Whereas the
letter is considered part of the record, albeit not for the
truth of any statements therein, see Bennett, 507 F.3d at 28

7        To support this assertion, plaintiff cites the disciplinary
report Sullivan filed against plaintiff. (Docket Entry # 252-1,
p. 3).
(supervisor’s statement in unsworn internal grievance considered
hearsay), paragraph 20, which sets out plaintiff’s subjective
belief that the Suffolk County House of Correction acted
“intentionally,” is stricken. See Torrech-Hernández, 519 F.3d
at 47 n.1; Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414

(1st Cir. 2000).
With respect to paragraph nine in plaintiff’s LR. 56.1
statement and as previously indicated, plaintiff’s failure to
address defendants’ arguments to strike the paragraph operates
as a waiver. Exercising this court’s discretion, the paragraph
is stricken solely on the basis of the waiver. The grievance
cited in paragraph nine remains part of the summary judgment
record.
Paragraph six, which states that “Sullivan[’s] retaliatory
animus is evident from the plaintiff’s version of events”
(Docket Entry # 256, p. 2, ¶ 6), is stricken as a “subjective
interpretation” or belief. Torrech-Hernández, 519 F.3d at 47

n.1. The same reasoning applies to paragraph eight, which is
also stricken.8 (Docket Entry # 256, p. 2, ¶ 8). Paragraph 132,
in which plaintiff characterizes SID “Sr. Investigator Jonathan
Spinale” as enlisting the assistance of Inmate Legal Services

8 The cited disciplinary report and disciplinary hearing
summary (Docket Entry # 252-1, pp. 5-6) in paragraph eight are
not stricken.
Attorney Robert Martin “in furtherance of the conversion” of
plaintiff’s legal and personal property and “Cpl. Wright” as
“knowingly assist[ing] in the conversion,” is stricken as a
subjective belief, speculation, and/or legal argument.
Paragraph 134 is stricken for similar reasons.9 Paragraphs 24,

30, 35, and 40 are likewise stricken as statements of subjective
belief, speculation, and/or legal argument.10
Having reviewed the other paragraphs in plaintiff’s LR.
56.1 statement, the following are excluded as speculation, legal
argument, or unsupported by their citation to the record:11
paragraphs 15, 110, 114,12 115, 121, 127 to 129,13 141; paragraph

9 The second and third sentences in paragraph 134 are also
deficient for the separate reason that they lack citations to
the record.
10 The exhibits cited in the above paragraphs are not stricken.
11 As applied to paragraphs 44 to 101, the above arguments are
addressed later in this opinion.
12 Paragraph 114 sets out a subjective belief that Sullivan
“targeted and harassed” plaintiff, even though “[s]imilarly
situated inmates” are not disciplined and speculates about “the
reason” Sullivan reported plaintiff.
13 The Inmate Property Inventory Sheet completed by “Sgt.
Depina” and signed by plaintiff on June 3, 2014 (Docket Entry #
252-1, p. 26) is the only citation in paragraph 129. It does
not support the paragraph, which states that “SID instructed
property officer Corporal Wright and Sgt. Depina to give
plaintiff a box of printed legal cases on June 3, 2014 and kept
the remainder of his property for inspection, copying and
disposal.” (Docket Entry # 256, p. 23, ¶ 129). Regarding
paragraph 127, it states that “[a]fter the plaintiff[’s]
property was secured in the segregation property room[,] SID
investigators took possession of the property the following day
or sometime thereafter.” (Docket Entry # 256, p. 22, ¶ 127).
The open-ended time period, the reference to plaintiff’s
“property” in the segregation property room, and the reference
21 (first sentence); paragraph 113 (first sentence); paragraph
118 (first and second sentences); paragraph 120 (first sentence
and second sentence after “(2)”); and paragraph 138 (third
sentence).
Defendants additionally argue that paragraphs 44 to 101 in

plaintiff’s LR. 56.1 statement should be stricken because they
rely on plaintiff’s subjective “interpretation of the video,”
“are unsupported by admissible record references,” and “are not
properly authenticated.” (Docket Entry # 259, pp. 4-5). More
broadly, defendants seek to strike all paragraphs that are “not
based on personal knowledge,” constitute speculation, argument,
or subjective beliefs. (Docket Entry # 259, p. 2). The
forgoing paragraphs consist of plaintiff’s unsworn description
of inaudible video depicting the inventory and handling of
plaintiff’s property on May 29, 2014, with time periods and
camera angles. (Docket Entry # 256, ¶¶ 44-101). Having been
escorted to segregation, plaintiff did not witness the inventory

and subsequent transport of inventoried items depicted on the

to “SID investigators” combined render the paragraph non-
specific speculation and/or conclusory. See Chin, 2017 WL
3526253, at *2; O’Brien, 440 F. Supp. 2d at 5 n.1. The cited
exhibits remain part of the record. Paragraph 128 refers to an
“illegal conversion” and “fraudulent investigation” and
speculates that “SID” converted plaintiff’s property at the
request of Barrows and Sullivan. (Docket Entry # 156, pp. 22-
23, ¶ 128). The paragraph amounts to legal argument and
speculation.
video, and his knowledge, if any, stems from watching the video.
(Docket Entry # 252-1, pp. 87, 91).
By way of background, in May 2019, defendants filed three
inaudible compact discs of the inventory and transport of items
(Ex. 13A-13C), which the Clerk’s office misplaced. On July 6,

2021, this court therefore requested copies of the three compact
discs, and defendants filed the copies on July 16, 2021.
(Docket Entry # 272) (Ex. 13A-13C). This court was able to
access and review these compact discs.
Plaintiff, in turn, filed four compact discs purportedly of
the inventory and subsequent transport of items. (Docket Entry
# 253). These discs are not accessible in a viewable format by
this court notwithstanding multiple attempts. (Docket Entry ##
271, 276, 284). Three Orders detail the attempts and the
reasons, including security concerns, for the inability to view
plaintiff’s four compact discs. (Docket Entry ## 271, 276,
284); see Lee v. City of Troy, 1:19-CV-473, 2021 WL 1318105, at

*2 (N.D.N.Y. Apr. 8, 2021) (“surveillance videos can often only
be viewed through specialized software,” and party cannot
reasonably expect “[c]ourt to wade into the internet in hopes of
finding the one program it needed to view [a] video . . .
regardless of the resulting security risks”); (Docket Entry #
284, p. 4) (quoting this language in Lee, 2021 WL 1318105, at
*2). Regarding a final attempt, defendants did not file video
footage in an accessible format, as outlined in the third Order
(Docket Entry # 284, pp. 5-6), by an October 13, 2021 deadline
thereby indicating their inability to access video footage in
the four original compact discs or produce the same footage in
an accessible format under the procedure ordered by this court

(Docket Entry # 284, p. 6, n.5). Accordingly, this court is
unable to access and review the four compact discs to ascertain
if the video footage therein provides support for one or more
paragraphs in plaintiff’s LR. 56.1 statement.
As noted, defendants argue that paragraphs 44 to 101 “are
unsupported by admissible record references” and not properly
authenticated. (Docket Entry # 259, pp. 4-5). All of these
paragraphs reference video-recorded times and specific cameras
without citing a particular video by docket entry number.
(Docket Entry # 256, ¶¶ 44-101) (Docket Entry # 244-18, ¶ 3).
Plaintiff is also proceeding pro se, and the obvious citation is
to video with these exact time stamps and camera angles. The

only court-accessible video in the record with time displays is
submitted by defendants (Docket Entry # 272) (Ex. 13A-13C),
which is properly authenticated with two sworn affidavits
(Docket Entry ## 244-14, 244-18).14 Subject to a few exceptions,
the time displays in the video footage (Docket Entry # 272) (Ex.

14 See footnote five.
13A-13C) correspond to the times set out in paragraphs 44 to
101. The reference to the time stamps and camera angles in
paragraphs 44 to 101 therefore adequately references the only
authenticated and accessible video evidence in the summary
judgment record (Ex. 13A-13C), albeit filed by defendants

(Docket Entry # 272). As such, the paragraphs sufficiently
comply with the requirement to reference documentation in the
record in LR. 56.1. Exercising this court’s discretion in the
enforcement of LR. 56.1, see Plourde v. Sorin Group USA, Inc.,
517 F.Supp.3d 76, 81 (D. Mass. 2021) (recognizing court’s
“‘discretion to decide whether to impose the sanction of deeming
the moving party’s factual assertions to be admitted’” under LR.
56.1) (citation omitted), appeal filed, No. 21-1145 (1st Cir.
Mar. 3, 2021), paragraphs 44 to 101 are therefore not stricken
because they do not contain any citation.15 Because the
unchallenged video submitted by defendants (Docket Entry # 272)
is properly authenticated, defendants’ authentication argument

fails.
As examples of other deficiencies in these paragraphs,
defendants point to paragraphs 63, 64, and 65 in plaintiff’s LR.

15    The paragraphs remain subject to being stricken on other
grounds, including if the cited video (Docket Entry # 272) (Ex.
13A-13C) does not support the paragraph, or the paragraph sets
out speculation or subjective beliefs, such as plaintiff’s
interpretation of the video. See Amoah, 2016 WL 6134119, at *2-
3; Aulisio, 2012 WL 3957985, at *3.
56.1 statement. (Docket Entry # 256, p. 12, ¶¶ 63-65) (Docket
Entry # 259, pp. 4-5). In paragraph 63, plaintiff states that
Sullivan received a call “from either Unit 1-4-2 or Ext. #2197
Lt. Barrows (2 minutes) about property issues and possible
disposal.” (Docket Entry # 256, p. 12, ¶ 63). In paragraph 64,

plaintiff states that Sullivan entered an office and “inform[ed]
CO Allen of content of Unit 1-4-2.” (Docket Entry # 256, p. 12,
¶ 64). In paragraph 65, plaintiff states that Dorgan is
“clearly explaining on camera” the procedure with respect to
inmate property. (Docket Entry # 256, p. 12, ¶ 65). These
three paragraphs in plaintiff’s LR. 56.1 statement refer to
conversations in the inaudible video. (Docket Entry # 256, p.
12, ¶¶ 63-65).
Overall, plaintiff’s statements in paragraphs 47 to 98, and
100 to 101 describing the inaudible video are based on
plaintiff’s knowledge from watching the inaudible video. The
statements in these paragraphs that recite content of inaudible

conversations are speculative and not supported by the record
citation because the recited content is inaudible. See Mercurio
v. Town of Sherborn, 287 F. Supp. 3d 109, 116 n.2 (D. Mass.
2017) (“impossible to determine,” in party’s statement of
undisputed facts, details of conversation from inaudible video).
Statements that individuals held a conversation regarding
certain topics or with certain unseen individuals cannot be
deduced from merely viewing an inaudible video. See Baptista v.
Hodgson, Civil Action No. 16-11476-LTS, 2019 WL 319584, at *1
n.5 (D. Mass. Jan. 24, 2019) (citation in statement of facts to
video with no audio could not support conversation), appeal
dismissed, 2019 WL 4061503 (1st Cir. June 3, 2019); see also

Brodin v. Rojas, Civil Action No. 11-40179-TSH, 2014 WL 1270010,
at *2 (D. Mass. Mar. 25, 2014) (statement of facts “replete with
improper commentary” of video recording). Such speculative
assertions regarding what was discussed in conversations on the
inaudible video or the identity of the unseen caller are not
based on fact, but rather plaintiff’s speculation. See
Baptista, 2019 WL 319584, at *1 n.5 (citation in statement of
facts to video with no audio could not support content of
conversation); see also Mercurio, 287 F. Supp. 3d at 116 n.2.
Therefore, paragraphs 63, 64, and 65 in plaintiff’s LR. 56.1
statement are stricken from the summary judgment record as
speculation and/or not supported by the record.

Other paragraphs in the paragraph range, i.e., paragraphs
44 to 101, rely on plaintiff’s subjective interpretation,
speculation, or commentary. For example, the second independent
clause of paragraph 46 states that “Sullivan directed
plaintiffs’ [sic] cellmate . . . to retrieve plaintiffs’ [sic]
property” while “Barrows supervised.” (Docket Entry
# 256, p. 10, ¶ 46). The footage (Ex. 13A), which this
court viewed in full, does not support the contention that
Sullivan “directed” plaintiff’s cellmate to do anything, nor
does it support the contention that Barrows was supervising the
event. (Docket Entry # 256, p. 10, ¶ 46). Paragraph 46 is

therefore stricken as speculation and/or unsupported by the
record. Similarly, paragraph 59 of plaintiff’s LR. 56.1
statement describes Sullivan as “explaining” to Dorgan that
certain materials belonged to plaintiff. (Docket Entry # 256,
p. 11, ¶ 59). The citation to the inaudible video does not
support paragraph 59, which is therefore stricken from the
summary judgment record as speculation or, alternatively,
unsupported by the citation to the summary judgment record.
Paragraphs 50, 57,16 66 to 69,17 78, the phrase “in possession of

16 Paragraph 57 speculates that Sullivan received a telephone
“call from either Unit 1-4-2” or Barrows and describes the
subjects discussed on the inaudible video. (Docket Entry # 256,
p. 11, ¶ 57). As such, it presents the same deficiencies as
paragraphs 63, 64, and 65.
17 Paragraph 66 speculates about the reason why Sullivan “goes
to the trash can,” namely, “to throw away plaintiff’s legal
documents.” (Docket Entry # 256, p. 12, ¶ 66). Paragraph 67
speculates about Sullivan’s reasons for checking various cells,
i.e., to see if other inmates are watching her and Dorgan
perform the inventory. Paragraph 68 speculates that documents
Sullivan threw into the trash were “legal documents.” (Docket
Entry # 256, p. 12, ¶ 68). In the video, Sullivan is seen
discarding small items into the trash. The cameras do not show
the items are legal documents because of their distance from
Sullivan and their angles. As a result, the primary direct
evidence of whether the small items Sullivan discarded were
“legal documents” is Sullivan’s affidavit. Therein, Sullivan
all plaintiff’s legal work pushing the cart” in paragraph 83,
the phrase “confirming his deposit of all property in the
segregation property room at [the] Booking Station” in paragraph
94, as well as paragraphs 100 and 10118 all contain statements
with similar deficiencies and are therefore stricken from the

summary judgment record.
Defendants also seek to strike paragraphs that are not
based on personal knowledge. (Docket Entry # 259, p. 2). This
court viewed the three compact discs, and it is the video
footage in the discs as opposed to a party’s unverified
description of what the video footage displays that controls.
See Carbone, 798 F.2d at 26. The Memorandum and Order on
summary judgment sets out the facts based on the inaudible video
footage viewed by this court (Docket Entry # 272) (Ex. 13A-13C),
which therefore renders moot defendants’ argument. Put another
way, the Memorandum and Order allows the summary judgment
motion, a result that remains the same even if this court did

attests she did not destroy legal materials and she only
discarded “nuisance contraband” consisting of “waste paper
items,” wrappers, or napkins. (Docket Entry # 244-3, p. 2, ¶
10). Paragraph 69 describes Sullivan as “yelling” on the
inaudible video and Dorgan as walking “angrily.” (Docket Entry
# 256, p. 12, ¶ 69).
18 Paragraph 101 speculates that “SID investigators” “edited
and spliced” the still pictures covering 11 minutes recorded by
four cameras and argues that Sullivan received “her phone call”
during this “exact time.” (Docket Entry # 256, p. 16, ¶ 101).
Paragraph 100 has the same deficiencies.
not strike any of the remaining paragraphs describing the video
footage of the inventory and subsequent transport of items.
CONCLUSION
In accordance with the foregoing discussion, the motion to
strike (Docket Entry # 258) is ALLOWED in part and DENIED in

part.

/s/ Marianne B. Bowler ___
MARIANNE B. BOWLER
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199926. Public record. Not legal advice.