NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0144n.06 No. 10-3945 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
MICHAEL TRANTER, P laintif f-App ellant,

v. GR EG ORICK , Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ON APP EAL F ROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E SOUTH ERN DISTRICT OF OHIO O P I N I O N

BEFORE: MOORE and GR IF F IN, Circ uit Jud ges; and QUIST , District Judge. * P ER CURIAM . Plaintiff, Mic hael Trante r, Administrator for the Estate of Nolan Hunter, appea ls the district c ourt’s order g ranting Def endant, Gre g Orick, summary judgme nt on Trante r’s claim under 42 U.S.C. § 1983 for use of excessive forc e in violation of the Four th Amendment and Trante r’s state law wrong ful death and survival claims. This Court revie ws a district court’s g rant of summary judgme nt de novo . Geiger v. Tower Auto. , 579 F.3d 614, 620 (6th Cir. 2009). Finding

no err or, we aff

irm. The district court did not err in ref using to consider Trante r’s summary judgme nt evidenc e, which Trante r conce des was hear say . I t is well established that a court may not con s i d er hear say when de ciding a summary judgme nt motion. See, e .g. , Alpert v. United States , 481 F.3d 404, 409 (6th Cir. 2007) (“ ‘[E] vidence submitt ed in opposition to a motion for summary judgme nt must be admissible. Hea rs ay evidence

. . . must be disreg arde d.’” (quoting U.S. Structures, Inc. v. J.P.

The Honora

ble Gordon J

. Quist, Senior United States District J udg e for the Western * District of Michig an, sitting by desig nation.Tranter v. Orick

Case No. 10- 3945

S t r u ct u r es, Inc. , 130 F.3d 1185, 1189 (6th Cir. 1997))) ; Jack lyn v. Schering-P lough Healthcare Prods. Sales Corp. , 176 F.3d 921, 927 (6th Cir. 1999) (“Hea rsay evidenc e may not be considered on summary

judgme nt.”). Although a district court may consider some forms of hear say evidenc e in deciding a motion for summary judgme nt, see Fe d. R. Civ. P. 56(c) , such evidenc e must still be admissible at trial. See Alexande r v. CareSou r ce , 5 76 F.3d 551, 558 (6th Cir. 2009) (noting that former Rule 56(e) “identifies a ffidavits, depositions, and answers to interrog atories as appropr iate it ems that may be used to suppor

t or oppose summary judgme nt”). As explained in Bailey v. Floyd County Board of Education , 106 F.3d 135 ( 6th Cir. 1997): Rule 56 require s the plaintiff to prese nt evidenc e of evidentiar y quality that demonstrate s the exis tence of a g enuine issue of materia l fac t. Ex amples of such evidenc e include admissible documents or attested testimony , such as that found in aff idavits or depositions. The proff ere d evidenc e need not be in admissible form , but its content must be admissible. For ins t an ce , d eposition testimony will assist a plaintiff i n surviving a m otion for summ ary judgm en t , even if the deposit ion itself i s not admissible at trial, provided substitut ed oral testimony would be admissible and cr eate a g enuine issue of materia l fac t. Id. at 145 (c itations omi tted). The D ay ton Poli ce D epar

tment investiga tion r eport and the witness statements Trante r offe red in response to O rick’s motion for summary judgme nt w ere hear say and

wer e not in a form that may be considere d on summary judgme nt. The district c ourt thus pr operly ref used to consider

Trante r’s e vidence

. Trante r forf

eited his arg

ument that the investiga tion repor t was admissible as a public rec ord under Fede ral Rul e of Evide nce 803( 8) by failing to raise it in the di strict court. See Singleton v. 1

Trante r rec og nize d i n h i s response to Orick’ s motion for summary judgme nt that the 1 investiga tion report wa s inadmissibl e hea rsay but a rg ued that the district c ourt could still consider it. (R.E. 17 at 6 n.3.) Be cause Trante r rec og nized the hears ay issue when he responde d to the 2Tranter v. Orick

Case No. 10- 3945

W ulff , 428 U.S. 106, 120 (1976) (“I t is the g ener al rule, of course , that a fede ral appellate court does not consider an issue not pa ssed upon below.”)

. Reg ardle ss, it lacks merit. Although Trante r fails to i d en t i fy t he particula

r subsection of Rule 803(8) upon which he relies, we presume from his citation of Alexande r v. CareSource , 576 F.3d 551 (6th Cir. 2009), that he co n t en d s t he repor t is admissible under Ru le 8 0 3 ( 8 ) ( C) b e c a u s e it contains “fa ctual finding s resulting from an investiga tion made pursuant to authority g rante d by law.” The investiga tion repor t, howeve r, contains no fac tual finding s and thus does not fall within Rule 803(8)( C). See Miller v. Field , 35 F.3d 1088, 1091 (6th Cir. 1994) (“Although conclusions and opini ons may also be contained i n the documen t

. . . to be admissible under Rule 803(8)( C)’s exception to the hear say rule, a repor t must first be a set of fac tual finding s.” (interna l quotation marks omitted)). Rather, i t i s s i m p l y a compilation of witness statements, all of which are hear say . See id. (noting that the information contained in the repor t contained hear say statements not admissible under Rule 803(8)) ; United States v. Mack ey , 117 F.3d 24, 28 (1st Cir. 1997) (“I n line with the advisory committee not e to Rule 8 03(8), decisions in this and other circ uits square ly hold that hear say statements by third persons such as Munichiello are not admissible under this exception merely beca use they appea r within public rec ords.”)

. We decline to consider T r a n te r ’ s a r g uments that the witness statements are excited utteranc es under Rule 803(2) or wer e otherwise independe ntly admissible beca use he waived them by raising them for th e fi rs t t i m e in his reply brief. “As this court has fre quently observe d, ‘[a]n appellant waives an issue when he fails to pr esent it in his initial briefs.’ ” LoCoco v. Med. Sav. Ins. Co. , 530

motion, he should have prese nted all of his arg uments for considering the investiga tion repor t to the district court in his response , including his contention that the district court could consider the repor t on summary

judgme nt beca

use it was admissible under Rule 803(8). 3Tranter v. Orick

Case No. 10- 3945

F.3d 442, 451 (6th Cir. 2008) (quoting Marks v. Newcourt Credit Grp., Inc. , 342 F.3d 444, 462 (6th Cir. 2003)). AF F IRMED

.

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