NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0469n.06 No. 12-1378 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT MATTHEW MCGUI RE, Plaintiff-Appellant,

v. MI CHI GAN DEPARTMENT OF COMMUNI TY HEAL TH, et a l., Def endants, GARY SHEETS; ROOSEVEL T AB RAHAM; MI CHAEL

BO RI E; MATTHEW HASSENGER; MARK COOPER; C YNTHI A KEL L Y, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

Before: KEITH, MARTIN, and COLE , Circuit Judges. P ER CURIAM

. Plaintiff-Appellant Matthew McGuire appea ls from a district court order g ranting partial s u m m ar y judgme nt and dismiss ing his Four teenth Amendment claim for alleg ed excessive forc e pursuant to a § 1983 theo ry o f l i ability

. McGuire suffe rs from mental illness, including, inter alia , shiz oaff ective disorder, psy chotic disorder, and impulse control disorder. He

was housed at the Mount Pleasant Center (“Cente r”) , pursuant to a court order , from October 2006 until the Center closed in Oc tober 2009. The Center ha s a we ll-documented a nd shameful history of abusing patients. During McGuire ’s time at the Center, he suffe red numerous serious injuries on multipl e occa sions, including but not limit ed t o s ev eral rib fra cture s on both sides of his body , 1bruising on his fac e, re d n ess in his eye, and a loose tooth in his mouth that eventua lly had to be

extracted. The parties do not dispute the injuries; they only disput e t h e causation, specific ally the

rea sonablene ss of t he f

o rce used by the s taff at the C enter

. McGuire argues t hat t he inj uries were

cause d by Def endants’ excessive forc e ag ainst him. Defenda nts argue that McGuire ha d episodes that require d his restra int and that the injuries wer e cause d by Def endants’ go o d faith phy sical manag ement techniques. The district court dismiss ed McGuire ’s claims at the summary judgme nt phase. The district court’s decision was larg el y based on its exclusion of a letter from a fore nsic patholog ist, Dr. Spitz , who was also listed as one of McGuire ’s experts to testify at trial. The district court deter

mined that without the letter from Dr. Spitz , there was no g enuine issue of materia l f act to prese nt at trial. McGuire now appea ls the district court’s deter mination to exclude the letter from Dr

. Spitz and the district court’s judgme nt ag ainst him. Be cause the district court improp er l y excluded Dr. Spitz ’s letter, an d b ec ause a g enuine issue of fac t exis ts as to the forc e used ag ainst McGuire , we r ever se the district cour t’s judgme nt as to McGuire ’s excessive for ce c laim. We revie w a district court’s g rant of a motion for summary judgme nt de novo , construing the evidenc e and draw ing all rea sonable infere nces in favor of the non-moving party

. Ireland v. Tunis , 113 F.3d 1435, 1440 (6th Cir. 1997). Summary judgme nt is proper if, afte r vi ewing the evidence that way , there are no g enuine issues of materia l f act, and the moving party is e ntitled to judgme nt

as a matter of law. Matsushita Elec. Indus. Co. v. Z enith Radio Corp. , 475 U.S. 574, 587 (1986); Fe d. R. Civ. P. 56(a)

. The moving party has “the burden of showing the absenc e of a g enuine issue as to any materia l fac t.” Adicke

s v. S.H. Kress &Co. , 398 U.S. 144, 157 (1970).

2Much of the appea l hinge s upon the district court’s decision to exclude and strike a letter that

was submitt ed by Plaintiff’s expert—a letter that supports McGuire ’s alleg ations of sever e abuse by the Center’ s staff. Dr. Spitz had investigated McGuire ’s i n juries and conclude d that McGuire ’s injuries wer e cause d by blunt and excessive forc e. He revie wed McGuire’s complaints and his injuries and found that the ty pes of injuries he suffe red wer e consistent with his complaints and that the “injuries require brutal and excess forc e.” He further stated that it was “ala rming

. . . how many times, in the relativel y s h o rt period of time that

. . . McGuire resided [at the Center], he was traumatized.” The letter was unsworn and was submitt ed in respon s e t o Def endants’ motion for summary judgme nt. In case s like the instant one, wher e the nonmoving party bear s the burden of proof at trial on

a dispositi ve issue, the party is not require d to “produc e evidenc e in a form that would be admissible at trial in order to avoid summary judgme nt.” Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). Whil e “[t] he proff

ere d evidenc e need not be in admissible form , . . . its content must be admissible. Bailey v. Floyd Cnty. Bd. ofEduc. , 106 F.3d 135, 145 (6th Cir. 1997) (empha sis in orig inal) (citing Celotex Corp. , 477 U.S. at 324) (“F or i n s tance , deposition testimony will assist a plaintiff in surviving a motion for summary ju d gm ent, even if the deposition itself is not admissible at trial, provided substitut ed oral testimony would be admissible and cre ate a g enuine issue of materia l fac t.”). Whil e Dr. Spitz ’s letter was not in an admissible form as attache d to McGuire ’s response to Def endants’ summar

y judgme nt motion, t he district cour t improperly focuse d only on the form of Dr. Spitz ’s letter and failed to consider whether the content was admissible. Alexande r v. Caresource , 576 F.3d 551, 558 (6th Cir. 2 0 0 9 ) (“ [T] he party opposing summary judgme nt must

3show that she can make good on the promi se of the pl eading s by laying out en o u g h evidenc e that

will be admissible at trial to demonstrate that a g enuine issue of materia l fac t exis ts, and that a trial is nece ssary .” (empha sis in orig inal)). Her e there is no indicatio n t h at t h e contents of the letter would not be able to be prese nted in an admissi ble form at t rial, as Dr. Spitz was disclosed a s one of McGuire ’s expert witnesses. Be cause the information in Dr. Spitz ’s letter is capa ble of being 1 prese nted in admissible form at trial, the district court err ed in excluding the letter. See J.F. Fee ser, 2 Inc. v. Serv-

A-Portion, Inc. , 909 F.2d 1524, 1542 (3d Cir. 1990) (“The aver ment s o f Spag nola’s aff idavit are capa

ble of proof throug h admissible evidenc e and we will consider them [for purposes of summary judgme nt.] ”); see also DeBiasi v. Charter Cnty of W ayne , 537 F. Supp. 2d 903, 911–12 (E.D. Mich. 2008) (consider ing the contents of a diary that was pre sented in an inadmissible form at the summary judgme nt stag e beca use the contents could be prese nted in an admissi b le form at trial). The dist rict court deter mined that without Dr. S pitz ’s l etter, there was no g enu ine i ssue of materia l fac t to be considere d by a jury

. We disag ree . “[A]t the summary judgme nt stag e, the trial judge ’s function is not himself to weigh the evidenc e and deter mine the truth of the matter b ut to

The district court never made any evidentiar y ruling as to Dr. Spitz ’s suitabilit y to serve as 1 an expert witness. I t should be noted that McGuire attempted to provide the letter in an admi s s i b l e fo rm at 2 summary judgme nt by providing a sworn letter from Dr . Spitz on August 12, 2011—one day afte r Def endants filed the ir reply

brief. N ever

theless, the district cour

t struck the docume nt and waited more than seven months—unti l Marc h 22, 2012—to rule on the motion for summary judgme nt. The district court char acte rized the perc eived problem as one of attorney neg lect. Howeve r, a “plaintiff should not be punished for his attorney ’s mistake absent a clea r rec ord of delay , wilful contempt or cont umacious conduct.” Stephens v. State of Michigan , 865 F.2d 1269, 1269 (6th Cir. 1988) (unpublished table opinion) (citing In re: Salem Mortg. Co. , 791 F.3d 456, 459–60 (6th Cir. 1986)).

4deter

mine whether there is a g enuine issue for trial.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986); W

iley v. United States , 20 F.3d 222, 226 (6th Cir. 1994). The district court deter mined that McGuire ’s testimony —which was contra dictory at t imes—was not cr edible and did not ca rry enoug h weig ht for his case to proce ed past summary judgme nt. The district court improperly made

cre dibilit y deter

minations and weig hed the evidenc e. McGuire alleg es that the abuse was imposed

over time and that the staff repe atedly abused him. Def endants do not disp u t e t h e i n j u ri es, the seriousness of t he inj uries, or the fact that forc e was used on a frequent basis. Def endants sim ply

asser t t h at i t wa s a nece ssary part of the job to restra in McGuire forc ibly and that the forc e was imposed in g ood faith. Def endants have not prese nted co n cl u s i ve evidenc e that the forc e was

rea sonable or that the sever e injuries sustained wer e a result of g ood faith restra int techniques. The

rea sonablene ss of the forc e is an issue for a jury to d et er mine. We rec og nize some of the inconsistencies in McGuire ’s testimony , but those inconsistencies are not fata l to McGuire ’s entire claim and a

re f or the jury

to weig h. Be cause the district court err ed in excluding the letter and failed to rule on the admissibili ty of the content and beca

use there is a g enuine issue of materia l fac t as to McGuire ’s excessive forc e cl ai m, we REVERSE the district court’s g rant of summary judgme nt to Def endants as to t h e excessive forc e claim and REMAND for further proce eding s consistent with this opinion. We do not disturb the district court’s judg ment in any other re spect.

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