Johnson v. Cate, 2015 U.S. Dist. LEXIS 120839 (E.D. Cal. Sept. 10, 2015):

Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Harrington on Plaintiff's Eighth Amendment claim and state law negligence claim. (ECF Nos. 19, 20, and 23.) Specifically, Plaintiff claims that Defendant was deliberately indifferent to a serious risk of harm to Plaintiff from arsenic-contaminated water at Kern Valley State Prison ("KVSP") where Plaintiff [*2]  was housed. (ECF No. 19.)

Defendant filed a motion for summary judgment on September 11, 2014.

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a. Defendant's Motion to Strike Plaintiff's Evidence

Defendant moves to strike [*23]  some of Plaintiff's evidence on multiple grounds, including inadmissible hearsay, lack of foundation, lack of personal knowledge, and improper authentication. Plaintiff counters that many of his exhibits are self-authenticating. At issue are the following, which Plaintiff submits in support of his argument that the levels of inorganic arsenic found in KVSP's drinking water during his incarceration were dangerously high:

(1) two articles from the Los Angeles Times reporting that the arsenic levels in KVSP's drinking water range between 15 ppb and 23 ppb, that staff members take their own water to work, that inmates' requests for alternative water are routinely denied, and that long-term exposure to arsenic is linked to cancer, Pl.'s Decl., Ex. B, ECF No. 85 at 83;

(2) a letter from the United States Department of Health and Human Services addressed to Plaintiff in response to his request for information; this letter discusses the health effects of organic and inorganic arsenic and the tests available to measure arsenic, Pl.'s Decl., Ex. A;

(3) a 2009 Consumer Confidence Report that sets forth the amount of various types of contaminants in KVSP's water, Pl.'s Decl., Ex I, ECF No. 85 at [*24]  75;

(4) a computer printout from the Centers for Disease Control and Prevention ("CDC") on inorganic arsenic, which provides that "[a]cute ingestion of toxic amounts of inorganic arsenic typically causes severe gastrointestinal signs and symptoms (e.g., vomiting, abdominal pain, and diarrhea)," Pl.'s Decl., Ex. M, ECF No. 85 at 46;

(5) an August 2007 Public Health Statement from the U.S. Department of Health and Human Services' Agency for Toxic Substances and Disease Registry ("ATSDR") noting that oral exposure to low levels of inorganic arsenic may cause dermal effects and peripheral neuropathy, and may result in increased risk of skin, bladder, and lung cancer, Pl.'s Decl., Ex. O, ECF No. 85 at 127; and

(6) a ToxGuide for Arsenic from ATSDR discussing the prevalence and effects of arsenic, Pl.'s Decl., Ex. E, ECF No. 85 at 110.

The Court agrees that there are problems with some of Plaintiff's proffered evidence. "It is axiomatic to state that newspaper articles are by their very nature hearsay evidence and are thus inadmissible if offered to prove the truth of the matter asserted[.]" In re Dual--Deck Video Cassette Recorder Antitrust Litig., 1990 U.S. Dist. LEXIS 19207, 1990 WL 126500, at *3 (D. Ariz. July 25, 1990); see [*25]  also Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991); Sacramento Cnty. Retired Employees Ass'n v. Cnty. of Sacramento, 975 F. Supp. 2d 1150, 1154 (E.D. Cal. 2013). Here, Plaintiff offers these articles to prove the content contained therein, including the effects of long-term arsenic exposure. Accordingly, the exhibits constitute hearsay, and the Court will recommend that Defendant's motion to strike these articles be granted. See Vannatta v. Keisling, 899 F. Supp. 488, 491 (D. Or. 1995) aff'd, 151 F.3d 1215 (9th Cir. 1998) (striking newspaper articles as inadmissible hearsay and refusing to consider them on a motion for summary judgment where "[t]he articles discuss the amounts and effects of special interest contributions, and were offered by Defendants to show that out-of-district donors in fact pose a real threat to the campaign system."). The Court also agrees with Defendant that the letter from the United States Department of Health and Human Services and the 2009 Consumer Confidence Report are inadmissible hearsay and will therefore be excluded from consideration. Fed. R. Evid. 801.

However, the Court will recommend that Defendant's motion to strike be denied as to the printout from the CDC, the August 2007 Public Health Statement from ATSDR, and the ToxGuide for Arsenic from ATSDR.

Under Federal Rule of Evidence 901, evidence that a public record or report is from the public office where items of that nature are kept satisfies the requirement that admitted evidence [*26]  be authenticated. Premier Nutrition, Inc. v. Organic Food Bar, Inc., 2008 U.S. Dist. LEXIS 78353, 2008 WL 1913163, at *5 (C.D. Cal. Mar. 27, 2008) aff'd, 327 Fed. Appx. 723 (9th Cir. 2009). Here, Plaintiff declares, under penalty of perjury, that he attached "true and correct cop[ies]" of these documents, which were obtained from the agencies' respective website. See Pl.'s Decl. ¶¶ 18, 30. The printouts also bear "distinctive characteristics" of the agencies' websites. Haines v. Home Depot U.S.A., Inc., 2012 U.S. Dist. LEXIS 47967, 2012 WL 1143648, at *7 (E.D. Cal. Apr. 4, 2012) ("courts have considered the 'distinctive characteristics' of the website in determining whether a document is sufficiently authenticated." (citations omitted)). These documents, therefore, are properly authenticated under Rule 901.

Moreover, Rule 902 allows for the self-authentication of certain documents, including official publications: "Books, pamphlets, or other publications purporting to be issued by public authority." Fed. R. Evid. 902(5); Paralyzed Veterans of Am. v. McPherson, 2008 U.S. Dist. LEXIS 69542, 2008 WL 4183981, at *7 (N.D. Cal. Sept. 9, 2008). Federal courts routinely consider records from government websites to be self-authenticating. See, e.g., Estate of Gonzales v. Hickman, 2007 U.S. Dist. LEXIS 84050, 2007 WL 3237727, at *2 (C.D. Cal. May 30, 2007); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 551 (D. Md. 2007) ("Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own websites, Rule 902(5) provides a very useful method of authenticating these publications. When combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency [*27]  websites should be admitted into evidence easily."); U.S. ex rel. Parikh v. Premera Blue Cross, 2006 U.S. Dist. LEXIS 70933, 2006 WL 2841998, at *4 (W.D. Wash. Sept. 29, 2006) (considering documents that can be found on Government websites, such as GAO Reports and Health and Human Services' Reports self-authenticating).

Here, the printout from the CDC, the August 2007 Public Health Statement from ATSDR, and the ToxGuide for Arsenic from ATSDR are available to the public at government-based websites and they bear official insignia. Thus, these documents are an "Official Publication" under Rule 902(5) and are properly authenticated.

Accordingly, the Court will recommend that Defendant's motion to strike be granted in part.