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Iacovone v. Wilkinson

February 8, 2007

ORSINO IACOVONE, PLAINTIFF,
v.
REGINALD A. WILKINSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

JUDGE GEORGE C. SMITH

REPORT AND RECOMMENDATION

Plaintiff, a state inmate, brings this action under 42 U.S.C. §1983 ("Section 1983") alleging that he has been denied his rights under the Constitution of the United States and under state and federal law during the course of his incarceration at the Southern Ohio Correctional Facility ("SOCF") and the Ohio State Penitentiary ("OSP"). This matter is before the Court on Defendants' Motion for Summary Judgment. Doc. No. 69. For the reasons set forth below, it is RECOMMENDED that Defendants' Motion for Summary Judgment be GRANTED.

I. FACTS

Plaintiff was incarcerated at OSP on December 21, 2000, and was transferred to SOCF on September 13, 2002, where he is currently incarcerated. Amended Complaint at 3. On July 23, 2003, plaintiff filed a verified complaint ("Complaint") in this action naming thirty defendants and presenting eight claims. Doc. No. 2. Subsequently, this Court conducted the initial screen of the complaint required by 28 U.S.C. §1915A, and dismissed plaintiff's sixth claim for failure to state a claim upon which relief can be granted. Doc. No. 23. Further, in that same Order, the Court granted plaintiff's motion to amend the complaint, Doc. No. 21, with regard to the remaining causes of action.

On October 22, 2004, the Amended Complaint was filed. Doc. No. 24. The Amended Complaint added no new claims, but rather withdrew plaintiff's fourth claim, withdrew his claims against thirteen of the thirty originally named defendants and incorporated the verified statements of facts from the Complaint. Id. In an Order dated June 14, 2005, two more defendants were dismissed. Doc. No. 52. Thus, remaining as named defendants in this action are the former Director of the Ohio Department of Rehabilitation and Correction ("ODRC") Reginald A. Wilkinson, SOCF Administrative Assistant Larry Green, SOCF Corrections Lieutenant Wayne Fout, OSP Warden Todd Ishee, OSP Administrative Assistant Mr. Fletcher, OSP employee David Ritz, OSP employee Robert Wolfe, OSP employee Gina Nail, OSP Corrections Officer R. Klienknecka, OSP Corrections Officer R. Cuevas, OSP Corrections Officer Mike Henyard, OSP Corrections Lieutenant Evans and SOCF Chief Cashier Roger Weaks. Amended Complaint at 1-2. Plaintiff's remaining causes of action allege violations of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, excessive force in violation of the Eighth Amendment to the United States Constitution and violations of federal and state laws regarding "accounting practices." See Amended Complaint (Counts One, Two, Three, Five, Seven and Eight).

On April 7, 2006, defendants filed Defendants' Motion for Summary Judgment. Doc. No. 69. On May 11, 2006, Cheryl A. Alikhan moved to appear, pro hac vice, on behalf of plaintiff. Doc. No. 71. This Court granted that motion on May 23, 2006. Doc. No. 74.

A status conference was held on June 8, 2006. Doc. No. 78. All parties were represented at the conference and plaintiff was granted until August 1, 2006, to respond to Defendants' Motion for Summary Judgment. Id.

On August 2, 2006, plaintiff moved to amend the Amended Complaint. Doc. No. 81. After full briefing and review, this Court denied plaintiff's motion to amend and gave plaintiff two weeks to file a memorandum contra Defendants' Motion for Summary Judgment. Doc. No. 84. On December 19, 2006, plaintiff filed Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Memorandum in Opposition") and, on December 29, 2006, defendants filed their reply in support of their motion for summary judgment, Doc. No. 88.

II. STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "there is no genuine issue as to any material fact . . . ." Fed. R. Civ. P. 56(c).In making this determination, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

However, summary judgment is appropriate if the opposing party 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 (1986). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251. The Court, however, may not make credibility determinations or weigh the evidence. Anderson, 477 U.S. at 255.

The party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Catrett, 477 U.S. at 323. Once the moving party has met its initial burden, the burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995) ("nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial"). "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.'" Glover v. Speedway Super Am. LLC,284 F. Supp.2d 858, 862 (S.D. Ohio 2003) (J. Rice) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Additionally, in ruling on a motion for summary judgment "[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." Id. (citing InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)). Instead, 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." Id.; Fed. R. Civ. P. 56(c).

III. ANALYSIS

Plaintiff asserts all six of his remaining claims for relief under Section 1983, which in ...


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