                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS January 14, 2009

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court


    JULIAN HATCH, doing business as
    Freedom From Religion; LYNNE
    MITCHELL, doing business as Match,

                Plaintiffs-Appellants,

    v.                                                   No. 07-4239
                                               (D.C. No. 2:01-CV-00071-DAK)
    BOULDER TOWN COUNCIL;                                 (D. Utah)
    BOULDER PLANNING
    COMMISSION,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.



         Plaintiffs Julian Hatch, d/b/a Freedom From Religion, and Lynne Mitchell,

d/b/a Match, appeal from the district court’s order granting summary judgment to

the defendants on all of the remaining claims in this civil rights action brought



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pursuant to 42 U.S.C. § 1983 and various state statutes. They also challenge the

district court’s decision striking their declarations filed in opposition to summary

judgment. We affirm.

                                 BACKGROUND

      Plaintiffs filed this case in January 2001, “alleging a plethora of

constitutional violations concerning zoning, permitting and road maintenance

issues.” Hatch v. Boulder Town Council, 471 F.3d 1142, 1143 (10th Cir. 2006)

(Hatch I). The district court granted summary judgment to the defendants, ruling

that nearly all of plaintiffs’ claims were precluded based on an earlier federal

civil rights suit and a state-court petition for review. In Hatch I, we reversed this

decision in part and remanded for further consideration of certain of plaintiffs’

claims.

      On remand, the district court entered a 62 page order granting summary

judgment on all of plaintiffs’ remaining claims. In that order, it also struck

plaintiffs’ declarations in opposition to summary judgment, reasoning that “[a]n

entire affidavit may be disregarded if inadmissible matter is so interwoven or

inextricably combined with the admissible portions that it is impossible, in the

practical sense, to separate them.” Order, Aplt. App. at 534 (quotation and

footnote omitted).




                                         -2-
                                    ANALYSIS

      1. Motion to Strike

      Defendants’ motion to strike plaintiffs’ declarations sought to exclude

evidence and we therefore review the district court’s grant of the motion for an

abuse of discretion. Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir.

2002). “Under this standard we will not disturb the district court’s decision

unless we have a definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (quotation omitted).

      As plaintiffs point out, the general rule is that “a court will disregard only

those portions of an affidavit that are inadmissible and consider the rest of it.”

Casas Office Machines, Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st

Cir. 1994). See also Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003).

But an exception is made to that rule: “the entire affidavit may be disregarded if

inadmissible matter is [so] interwoven or inextricably combined with the

admissible portions that it is impossible, in the practical sense, to separate them.”

Southern Concrete Co. v. United States Steel Corp., 394 F. Supp. 362, 380-81

(N.D. Ga. 1975), aff’d, 535 F.2d 313 (1976). Faced with literally hundreds of

specific objections that covered many or most of the statements contained in

nearly every paragraph of plaintiffs’ lengthy declarations, which were filled with

inadmissible evidence, conclusory statements, and argumentative rhetoric, the

                                         -3-
district court declined to search plaintiffs’ affidavits for admissible statements

using the “needle-in-the-haystack” method, and instead struck them in their

entirety. We cannot say the district court abused its discretion in doing so.

Nevertheless, in an abundance of caution, we have parsed the declarations and

find that the evidence contained therein properly considered under Fed. R. Civ. P.

56(e) would not change our decision to affirm the district court’s order granting

summary judgment for the defendants.

      2. Summary Judgment

      “We review a district court's grant of summary judgment de novo, applying

the same standards as the district court.” ACLU of New Mexico v. Santillanes,

546 F.3d 1313 (10th Cir. 2008). “Summary judgment is appropriate when ‘the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

“We view the facts in the light most favorable to the nonmoving party.” Id.

      Having reviewed the district court’s well-reasoned order on summary

judgment, the record, the briefs, and the applicable law, we affirm the grant of

summary judgment for substantially the reasons stated in the district court’s order

of summary judgment, dated October 10, 2007.




                                          -4-
      The judgment of the district court is AFFIRMED. The defendants’ motion

to dismiss the appeal is denied.


                                                ENTERED FOR THE COURT

                                                PER CURIAM




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