Dever v. Kelly

• Decision Date: 02 July 2008
• Docket Number: No. 3:06-CV-392.,3:06-CV-392.
• Citation: 566 F.Supp.2d 703
• Parties: Fred DEVER, et al., Plaintiffs, v. Hon. Gene KELLY, Sheriff, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

566 F.Supp.2d 703

Fred DEVER, et al., Plaintiffs, v. Hon. Gene KELLY, Sheriff, et al., Defendants.

No. 3:06-CV-392.

United States District Court, S.D. Ohio, Western Division at Dayton.

July 2, 2008.

COPYRIGHT MATERIAL OMITTED

Daniel C. Harkins, Mark De Castro, Harkins & Associates, Mark D. Decastro, Springfield, OH, for Plaintiffs.

Mark David Landes, Brandi L. Dorgan, Isaac Brant Ledman & Teetor, Columbus, OH, for Defendants.

Glenn Clark Xenia, OH, pro se.

ENTRY AND ORDER ADOPTING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (DOC. 81) AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 83), GRANTING MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS SHERIFF KELLY, AND DEPUTIES CRAMBLETT, TILLMAN AND REED (DOC. 51) AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 37) AND DISMISSING WITH PREJUDICE THE CLAIMS AGAINST MR. CLARK.

THOMAS M. ROSE, District Judge.

As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Plaintiff's objections (Docs. 82 & 84) to the Magistrate Judge's Report and Recommendations (Doc. 81) and Supplemental Report and Recommendations (Doc. 83) are not well taken and they are hereby OVERRULED. Accordingly, the Court GRANTS Motion for Summary Judgment of Defendants Sheriff Kelly, and Deputies Cramblett, Tillman and Reed (Doc. 51) and DENIES Plaintiffs' Motion for Partial Summary Judgement (Doc. 37) and, as recommended by the magistrate, DISMISSES WITH PREJUDICE the Claims Against Mr. Clark. The captioned cause is hereby TERMINATED upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

DONE and ORDERED.

REPORT AND RECOMMENDATIONS ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT

MICHAEL R. MERZ, United States Chief Magistrate Judge.

This case is before the Court on Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 37) which Defendants Kelly, Cramblett, Tillman, and Reed oppose (Doc. No. 52); Plaintiffs have filed a Reply Memorandum in support (Doc. No. 54). Defendant Glenn Clark, who is now proceeding pro se, has not opposed the Motion. The case is also before the Court on Motion for Summary Judgment of Defendants Sheriff Kelly, and Deputies Cramblett, Tillman, and Reed (Doc. No. 51). Plaintiffs oppose that Motion (Doc. No. 55) and the moving Defendants have filed a Reply in support (Doc. No. 80).

Although the order of general reference in this case embodied in the Preliminary Pretrial Order (Doc. No. 12) expired with the discovery cut-off on December 14, 2007, these two Motions have been specially referred (Doc. Nos. 48, 56).¹

The Complaint

Plaintiffs Fred and Bobbie Dever and American Powder Coating and Manufacturing, Inc., brought this action against Defendant Gene Kelly, the Sheriff of Clark County, Ohio, and his Deputies, Sergeant Terry Reed, Deputy Dustin Cramblett, and Deputy Bradley Tillman (collectively, the "Clark County Defendants"), and Mr. Glenn Clark under 42 U.S.C. § 1983 and Ohio common law (Complaint, Doc. No. 2). Subject matter jurisdiction is premised on 28 U.S.C. §§ 1343(a)(3) and 1367, is not contested, and is appropriate.

Count One of the Complaint alleges that Defendants unlawfully searched Plaintiffs' business property and seized both the real estate and some personal property in violation of the Fourth Amendment to the United States Constitution (Complaint, Doc. No. 2, at ¶ 36). The same acts by Defendants are alleged to have deprived Plaintiffs of their substantive and procedural due process rights in violation of the Fourteenth Amendment. Id. at ¶¶ 37-38. Count Two re-avers violation of Plaintiffs' Fourth Amendment rights. Id. at ¶¶ 42-45. Count Three re-avers deprivation of procedural due process rights. Id. at ¶¶ 47-51. Count Four avers that the unlawful search and seizure resulted in a deprivation of Plaintiffs' substantive due process right to privacy. Count Five appears intended to allege a common law count of trespass and that Ohio Revised Code § 2744.02 is unconstitutional under the Ohio Constitution. Id. at ¶¶ 58-64. Count Six purports to state a common law claim for conversion. Id. at ¶¶ 65-68.

Plaintiffs seek summary judgment as to liability on all of their claims against all of the Defendants, asking that the case be tried only on damages.² The Clark County Defendants oppose the Motion in its entirety and reciprocally seek summary judgment on all claims; Defendant Clark has not responded to Plaintiffs' Motion.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law.) Fed.R.Civ.P. 50. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiffs evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F.3d 795 (6th Cir.1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510.

The moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (citation omitted). If the moving party meets this burden, the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Martin v. Ohio Turnpike Comm'n, 968 F.2d 606 (6th Cir.1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993).

In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

The facts set forth in this Report are admitted or established by evidence competent under Fed.R.Civ.P. 56(e) and not controverted by opposing competent evidence. Having compared the competing statements of fact in the two Motions, the Court concludes that these are effectively true cross-motions for summary judgment in that there are really no contested material facts and few if any contested historical or evidentiary facts. Compare 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2720 (1998), on the situation where parties make cross-motions for summary judgment, but do not concede the...