Mallory v. City of Riverside

• Decision Date: 04 August 2014
• Docket Number: Case No. 3:13–cv–220.
• Court: U.S. District Court — Southern District of Ohio
• Parties: Marisol MALLORY, Plaintiff, v. CITY OF RIVERSIDE, et al, Defendants.

35 F.Supp.3d 910

Marisol MALLORY, Plaintiff

v.CITY OF RIVERSIDE, et al, Defendants.

Case No. 3:13–cv–220.

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

Filed Aug. 4, 2014.

William T. Daly, Dayton, OH, for Plaintiff.

Dawn M. Frick, Jeffrey Charles Turner, Kevin A. Lantz, Surdyk Dowd & Turner Co. LPA, Miamisburg, OH, for Defendants.

DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND AMENDED MOTION TO STRIKE

MICHAEL R. MERZ, United States Magistrate Judge.

This case is before the Court on Defendants' Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. (Doc. No. 23). Plaintiff filed a Memorandum in Opposition (Doc. No. 30) and Defendants filed a Reply (Doc. No. 31). In addition, Defendants moved that this Court admonish Plaintiff's counsel for ethical violations arising out of alleged racial allegations. See Reply, Doc. No. 31. In response Plaintiff filed an Amended Motion to Strike the portion of Defendant's Reply alleging the ethical violations (Doc. No. 35), Defendants filed a Reply to that Motion on June 13, 2014 (Doc. No. 36).

The parties unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) in their Rule 26(f) Report (Doc. No. 12) and Judge Rice has referred the case on that basis. (Doc. No. 13).

This Court has subject matter jurisdiction under Title 28 of the USC Section 1331, 1343, and 1367. (Complaint, Doc. No. 1, PageID 3.)

Applicable General 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 249–250, 106 S.Ct. 2505 (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 plaintiff's 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, 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. 2505.

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). The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Alexander v. CareSource, 576 F.3d 551 (6th Cir.2009), citing Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc.,

276 F.3d 845, 848 (6th Cir.2002). 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).

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.

A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir.2001). “Materiality is determined by the substantive law claim.” Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir.2000). An issue is genuine if a “reasonable jury could return a verdict for the nonmoving party.” Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir.2008) ; Henson v. Nat'l Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir.1994), quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir.2000). When the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact. Simmons–Harris v. Zelman, 234 F.3d 945, 951 (6th Cir.2000), rev'd on other grounds, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). Thus, a factual dispute which is merely colorable or is not significantly probative will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.), cert. denied 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993) ; see also, Int'l Union United Auto., Aerospace & Agriculture Implement Workers of America v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir.1999), cert. denied 529 U.S. 1067, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000).

The party opposing the motion may not “rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact” but must make an affirmative showing with proper evidence in order to defeat the motion. Street, 886 F.2d at 1479. A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the [non-moving party].” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. If, after sufficient opportunity for discovery, the non-moving party is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322–23, 106 S.Ct. 2548.

Facts of the case

This case arises from an encounter between Plaintiff, Marisol Mallory, and Defendants, Sergeant Harold Jones and Officer Matthew Jackson, when Defendants cited Plaintiff for keeping hens and roosters on her property in violation of city ordinance, and seized the animals from Plaintiff.

The situation originated when an employee for the United States Postal Service, Sandy Valenzuela, notice several shipments of live animals, specifically roosters and hens, being shipped to the residential address of 2603 Rondowa Avenue, Riverside, Ohio. (Aff. of Valenzuela at Motion for Summary Judgment, Doc. No. 23–1, PageID 366, ¶¶ 5–7.) Concerned that the roosters may have been shipped for the purposes of cockfighting, she contacted the Humane Society of Greater Dayton. Id. at ¶¶ 8–10.

A Humane Agent for the Humane Society of Greater Dayton, Sheila Marquis, collected the information from Ms. Valenzuela about the initial shipments of chickens to Ms. Mallory's residence. (Aff. of Marquis at Motion for Summary Judgment, Doc. No. 23–2, PageID 368, ¶ 4.) She was then informed of additional shipments arriving a few days later. Id. at ¶ 5. In addition to the information from Valenzuela, the Humane Society received two other phone calls complaining of cockfighting at 2603...