U.S. v. Operation Rescue Nat., C-3-98-113.

• Decision Date: 27 August 1999
• Docket Number: No. C-3-98-113.,C-3-98-113.
• Parties: UNITED STATES of America, Plaintiff, v. OPERATION RESCUE NATIONAL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 948

111 F.Supp.2d 948

UNITED STATES of America, Plaintiff, v. OPERATION RESCUE NATIONAL, et al., Defendants.

No. C-3-98-113.

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

August 27, 1999.

COPYRIGHT MATERIAL OMITTED

Dale Ann Goldberg, U.S. Attorney's Office, Dayton, OH, Bill Lann Lee, Steven H. Rosenbaum, Mellie H. Nelson, Pamela K. Chen, Rebecca E. Epstein, Shelley R. Jackson, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for U.S.

Frederick H Nelson, American Liberties Institute, Orlando, FL, for Operation Rescue Nat. Philip Benham, Rusty L. Thomas, James F. Anderson, defendants.

Philip Benham, Garland, TX, pro se.

Rusty L Thomas, Waco, TX, pro se.

Christopher Paul Finney, Finney Bacon & Muehlenkamp Co., Cincinnati, OH, David R Langdon, Cincinnati, OH, for David Mehaffie, defendant.

David R Langdon, Cincinnati, OH, for Heather F. Mechanic, defendant.

Thomas W Condit, Condit & Dressing, Cincinnati, OH, for Olivia A Alaw, defendant.

David Carr Greer, Bieser, Greer & Landis — 3, Dayton, OH, Alphonse Adam Gerhardstein, Laufman & Gerhardstein, Cincinnati, OH, for Women's Medical Center of Cincinnati, Women's Medical Center of Kettering, Dayton Women's Services, Julie Goodchild, Charles Weaver, Victoria Tepe, Deborah Crouch, Kristie Kissell, Antonio Green, Martin Haskell, movants.

David M Kreeger, Wilmer, Cutler & Pickering, Washington, DC, for National Abortion Federation, movant.

Ann Wightman, Faruki Gilliam & Ireland — 3, Dayton, OH, for Patricia K Chapman, movant.

DECISION AND ENTRY OVERRULING MOTION FOR RECONSIDERATION OF DEFENDANTS PHILIP BENHAM, RUSTY THOMAS AND JAMES ANDERSON (DOC. # 106); DECISION AND ENTRY OVERRULING IN PART AND OVERRULING, AS MOOT IN PART, MOTION FOR SUMMARY JUDGMENT OF DEFENDANT OLIVIA ALAW (DOC. # 127); DECISION AND ENTRY OVERRULING MOTION FOR ADMISSIONS OF DEFENDANT OLIVIA ALAW (DOC. # 128); DECISION AND ENTRY OVERRULING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT (DOC. # 130); DECISION AND ENTRY SUSTAINING GOVERNMENT'S MOTION FOR LEAVE TO AMEND (DOC. # 135)

RICE, Chief Judge.

The Government brings this litigation under the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, seeking injunctive relief, statutory damages and the imposition of civil penalties against the Defendants. The genesis of this lawsuit is the Return to Truth Campaign, conducted in Southwest Ohio during mid-July, 1997. During that campaign, the Defendants and numerous other individuals conducted protests at the Women's Medical Center of Cincinnati, Ohio ("Cincinnati Clinic"), on July 14, 1997; at the Women's Medical Center of Kettering, Ohio ("Kettering Clinic"), on July 15, 1997; and at the Dayton Women's Services in Dayton, Ohio ("Dayton Clinic"), on July 16 and 18, 1997. The Government contends that Defendants Operation Rescue National ("ORN"), Philip Benham ("Benham"), Rusty Thomas ("Thomas"), David Mehaffie ("Mehaffie") and James Anderson ("Anderson") violated FACE by obstructing the relevant clinic on each of those four days. In addition, the Government asserts that Defendants Olivia Alaw ("Alaw") and Heather Mechanic ("Mechanic") violated that statute with respect to the protests at the Cincinnati and Kettering Clinics.

This case is now before the Court on interrelated Motions for Summary Judgment filed by Alaw (Doc. # 127) and the Government (Doc. # 130). In addition to those motions, the Court will rule upon two other motions herein, to wit: the Motion of Benham, Thomas and Anderson for Reconsideration (Doc. # 106) and Alaw's Motion for Admissions (Doc. # 128). As a means of analysis, the Court will initially rule upon the summary judgment motions, beginning by setting forth the standards which are applicable to all such motions. The Court will then address the other two motions in the above order.

I. Alaw's Motion for Summary Judgment (Doc. # 127) and the Government's Motion for Summary Judgment (Doc. # 130)

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always 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.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating 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).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the factfinder. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in 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). See also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment...."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, 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 Government seeks summary judgment, as to liability, on its claim that Defendants ORN, Benham, Thomas, Mehaffie and Anderson violated FACE on all four days in question and that Alaw and Mechanic violated that statute with respect to the protests at the Cincinnati and Kettering Clinics. In addition to seeking summary judgment as to liability, the Government also requests same as to the relief it has requested in this litigation. Alaw seeks summary judgment on the Government's claim against her.¹ As well as arguing that they did not violate FACE, the Defendants, including Alaw, challenge the constitutionality of that statute. As a means of analysis, the Court will initially consider issues of the Defendants' liability (i.e., the parties' arguments as to whether the evidence raises a genuine issue of material fact, concerning the Defendants' alleged violations of the...