Ridenour v. Collins

• Decision Date: 10 February 2010
• Docket Number: Case No. 2:08-cv-682.
• Citation: 692 F. Supp.2d 827
• Parties: William L. RIDENOUR, Plaintiff, v. Terry COLLINS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

692 F. Supp.2d 827

William L. RIDENOUR, Plaintiff, v. Terry COLLINS, et al., Defendants.

Case No. 2:08-cv-682.

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

February 10, 2010.

William L. Ridenour, Chillicothe, OH, pro se.

J. Eric Holloway, Ohio Attorney General's Office, Ryan G. Dolan, Attorney General of Ohio, Columbus, OH, for Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court to consider the Report and Recommendation issued by the Magistrate Judge on December 2, 2009(# 78). The Magistrate Judge recommended that the defendants' motion for summary judgment (# 54) be granted and that this action be dismissed. The Magistrate Judge, in connection with this recommendation, also ruled on several nondispositive motions. The motions of plaintiff William Ridenour for extension of time for completion of discovery (# 44), for judicial notice (## 47, 48), to compel discovery (# 53), to provide a copy of his memorandum with attachments (# 63), for leave to file an amended complaint (# 64), and to strike the affidavit of Cynthia Mausser (# 69) were denied. The defendants' motion in limine (# 66) was also denied. Mr. Ridenour's motion to supplement the summary judgment record (# 72) was granted.

On December 15, 2009, Mr. Ridenour filed an objection (# 81) to the Report and Recommendation. He asks this Court to reject the recommended disposition of the defendants' summary judgment motion and to reconsider the Magistrate Judge's denial of his various motions. On January 15, 2010, the defendants filed their response to Mr. Ridenour's objection. For the following reasons, the Court overrules Mr. Ridenour's objection and adopts the Report and Recommendation in its entirety.

I. STANDARD OF REVIEW

When objections are received to a report and recommendation on a dispositive matter, the District Judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). After review, the District Judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C. § 636(b) (1)(C).

In reviewing a magistrate judge's ruling on a nondispositive matter, the District Judge "must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Under the "clearly erroneous" standard, the district court must affirm the magistrate judge's order unless it has a definite and firm conviction that a mistake has occurred. In re Search Warrants Issued Aug. 29, 1994, 889 F.Supp. 296, 298 (S.D.Ohio 1995). A district court's review under the "contrary to law" standard is plenary, and the court may set aside any legal conclusions that "contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent." Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D.Ohio 1992).

II. OBJECTIONS TO NONDISPOSITIVE MOTIONS

A. Plaintiff's Motion to Extend Pretrial Deadlines

Mr. Ridenour argues that he never had an opportunity to complete adequate discovery because the defendants refused to provide sufficient answers to his interrogatories, requests for admission, and requests for production. He specifically objects to the defendants' redaction of information based on their alleged security and privacy concerns. In his view, the defendants should have been required to seek a protective order rather than redacting such information on their own. Mr. Ridenour asserts that had the defendants moved for a protective order, the Magistrate Judge could have made an in camera inspection of the documents to determine whether he was entitled to the information in unredacted form. Mr. Ridenour also contends that the Magistrate Judge should have granted him a continuance pursuant to Fed.R.Civ.P. 56(f) to conduct further discovery prior to issuing a Report and Recommendation on the defendants' summary judgment motion.

The burden lies on the party seeking discovery to proffer facts demonstrating that the evidence sought actually exists and is sufficient to preclude summary judgment. Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir. 2001). The Court concludes that Mr. Ridenour has not satisfied that burden. In his affidavit, he claims that it is absolutely essential that he receive the statistics for prisoners paroled in 1972. Not only has he failed to establish a reasonable likelihood that these statistics exist, he has also failed to show how they might preclude summary judgment in light of the fact that he did not become eligible for parole until 1982. Whether Mr. Ridenour is entitled to the redacted materials will be addressed in the context of his second motion to compel.

B. Plaintiff's Motions to Take Judicial Notice

Mr. Ridenour acknowledges that the Magistrate Judge correctly outlined the facts which were the subject of his requests for judicial notice. He contends, however, that the Magistrate Judge misconstrued his request that the Court take judicial notice of the fact that the defendants misapplied Ohio Rev.Code §§ 2903.02 and 2967.13 to increase, or even eliminate, his minimum parole eligibility. Mr. Ridenour also maintains that the Court should take judicial notice of the testimony of Beverly Seymour and John Gerhart before the Senate Finance & Financial Committee because their testimony is in the public record and is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

The Magistrate Judge determined that it is inappropriate to take judicial notice of the Ohio statutes Mr. Ridenour believes the defendants misapplied, and that Ohio law is simply a matter for the Court to interpret. See United States v. Dedman, 527 F.3d 577, 586 (6th Cir.2008). Mr. Ridenour has not shown that this determination is contrary to law. The question of whether the defendants misapplied the law and thereby violated his rights under the Ex Post Facto Clause is the central issue in this lawsuit and is clearly disputed. Thus, the statutes at issue do not fall within the framework of Fed.R.Evid. 201(b) for taking judicial notice.

The Court also is not required to take judicial notice of the testimony of Ms. Seymour and Mr. Gerhart. While the fact that they testified before the Ohio Senate committee may not be open to dispute, the contents of their testimony, particularly when offered for the truth of the matters asserted, evince considerable dispute. See United States v. Bonds, 12 F.3d 540, 553 (6th Cir.1993) (court not required to take judicial notice of National Research Committee report where significance of its contents was disputed); Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 852-53 (6th Cir.2004) (district court did not abuse its discretion in refusing to take judicial notice of declarations filed by school system expert in unrelated case).

Lastly, Mr. Ridenour claims that a newspaper article he submitted should not be excluded because it allegedly shows that the time served for two counts of first degree murder was on average fourteen years, even where one of the victims was a police officer. He asserts that the Court should take judicial notice of this "fact" and draw any inferences in his favor.

Mr. Ridenour did not, however, ask the Court to take judicial notice of this newspaper article. In his second motion for judicial notice, the only newspaper article to which he referred was an item by Dawson Bell in the Free Press about Michigan parolees who had turned their lives around. The article he describes in his objection appears to be the one in the Dayton Daily News which was attached as Exhibit M to his memorandum opposing summary judgment. Regardless of whether Mr. Ridenour originally sought judicial notice of the article, it cannot be used for the purpose of showing that the average time served by an inmate for two counts of first degree murder was fourteen years. See Cofield v. Alabama Public Service Comm'n, 936 F.2d 512, 517 (11th Cir.1991) (that a statement appears in a newspaper does not establish that the statement is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).

C. Plaintiff's Second Motion to Compel

Mr. Ridenour observes that the Magistrate Judge denied his second motion to compel production of parole statistics from 1972 to 1976 on the ground that the defendants cannot be compelled to produce documents that do not exist or which they do not possess or control. He contends, however, that the defendants never denied that they possessed the raw data to compile those statistics, but maintained only that they had not yet done so. Mr. Ridenour also objects to the Magistrate Judge's finding that certain redacted information is not relevant without first conducting an in camera inspection. In his view, the Magistrate Judge's purported reliance on the defendants' self-serving statements regarding the redacted information was contrary to the standard for summary judgment.

Before the movant is entitled to an in camera inspection of documents, he must show a reasonable probability that they contain relevant evidence. Brown v. Sheets, No. 2:06-cv-448, 2007 WL 3024456 at *21 (S.D.Ohio Oct. 15, 2007). Again, Mr. Ridenour has not done so. Accordingly, the Magistrate Judge could rule on the second motion to compel without first conducting an in camera inspection. See Wolfel v. United States, 711 F.2d 66, 67 (6th Cir.1983) (district court did not err in reaching conclusion about documents requested under the Freedom of Information Act without utilizing an in camera inspection).

D. Plaintiff's Motion for Copy of Document 57 and Attachments

Mr. Ridenour claims that he needs a copy of his memorandum in opposition to the...