Marsh v. MO Dept. of Corr., 4:23-cv-00128

Plaintiff Javon Dustin Marsh filed suit against Defendant Robert A. Reckert, related to an incident on February 7, 2022, alleging excessive force and resulting injuries during a prison escort.
Reckert moved for summary judgment and, in connection, filed a motion requesting the court to disregard certain portions of Marsh’s post-deposition declaration, arguing the "sham affidavit" rule and other grounds.
Reckert claimed specific paragraphs in Marsh’s declaration contradicted Marsh’s prior deposition testimony and should be excluded from consideration.
Marsh opposed, asserting his declaration merely clarified prior testimony or added details, which is allowed.
The court reviewed both Marsh’s deposition and declaration to determine if any statements constituted a "sham" or if other evidentiary grounds applied.
The court ultimately allowed most of the challenged statements but excluded portions of Paragraph 19 and part of Paragraph 23 from consideration and found some paragraphs not relevant to summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether portions of Marsh’s declaration constitute a "sham affidavit"	Marsh’s declaration clarifies and expands on his deposition; not a sham.	Declaration contradicts deposition and should be disregarded under sham affidavit rule.	Most statements allowed; only portions of Paragraph 19 and part of Paragraph 23 excluded.
Whether additional challenged paragraphs are relevant to summary judgment	Not directly addressed by Marsh.	Certain paragraphs are not based on personal knowledge, contain hearsay, or are irrelevant.	Court found the paragraphs not relevant and declined to consider them.

Button v. Dakota, Minnesota & E.RR. Corp., 963 F.3d 824 (8th Cir. 2020) (discusses the sham affidavit rule and when affidavits may be disregarded for contradicting prior testimony)
Bass v. City of Sioux Falls, 232 F.3d 615 (8th Cir. 1999) (affidavit may be a sham if a sudden and unexplained revision of testimony creates a fact issue)
City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468 (8th Cir. 2006) (explains that affidavits clarifying ambiguities in deposition testimony are permissible)
Taylor v. Cottrell, Inc., 795 F.3d 813 (8th Cir. 2015) (post-deposition affidavits cannot contradict earlier testimony to create a fact issue)
Setchfield v. St. Charles Cnty., 109 F.4th 1084 (8th Cir. 2024) (additional information in affidavits, if not inconsistent with prior testimony, is allowed)