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Rittner v. Thrower

April 4, 2007


The opinion of the court was delivered by: Judge Sargus


This prisoner civil rights case is before the Court on defendant Jeffery Wolfe's motion for summary judgment and plaintiff Daniel Rittner's request for the Magistrate Judge's recusal due to alleged prejudice. For the following reasons, the Court recommends that the request for recusal be denied. Additionally, the Court recommends that the motion for summary judgment be granted and the entire case be dismissed.


Preliminarily, the Court will address the apparent request for the Magistrate Judge's recusal. Mr. Rittner alleges that the Magistrate is demonstrating "nepotism" to the defendants in violation of his constitutional rights. (Notice of Obj. to Prejudice by Mag. Kemp (doc. #187) at p. 1). Specifically, Mr. Rittner requests the Court to "investigate" the alleged favoritism in this case, which the Court construes as a motion for recusal. (Id. at p. 2).

A judge may not be removed from a case on grounds of bias simply because a party is dissatisfied with rulings made by the judge during the course of the case. Rather, "the critical test is whether the alleged bias 'stem[s] from an extra-judicial source and result[s] in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir.1989), quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1965). Mr. Rittner has not alleged any extra-judicial source of bias, and his dissatisfaction with the Magistrate Judge's handling of the case is not an appropriate basis for recusal under this standard. Consequently, the Court recommends that this request be denied.


Mr. Rittner, is a prisoner proceeding pro se. Mr. Rittner originally filed suit (Case No. 2:05-cv-1041) against Mr. Wolfe and Sidney Thrower in this Court on November 17, 2005, claiming a litany of alleged civil rights violations. That case was subsequently dismissed on May 24, 2006 for failure to exhaust administrative remedies.

On June 19, 2006, Mr. Rittner refiled a complaint in this Court against both Messrs. Wolfe and Thrower. The other defendant, Sidney Thrower, has not been severed in this case. In this complaint, Mr. Rittner specifies, among other things:

As in the first filing in cause titled Rittner v. Thrower, 2:05 CV 1041 Plaintiff did exhaust his administrative remedies. This Court failed to construe the pleadings as the Plaintiff met the pleadings to be construed. Plaintiff ONLY complains of the acts of the Defendants Sidney Thrower ["Defendant" or "Thrower"] and Jeffery Wolfe ["Defendant" or "Wolfe"] of placing Plaintiff in segreation at Noble Correctiona Institution without justiciable cause, excuse or priviledge to do so and without due process in violation of Plaintiff's Constitutional rights which are clearly established under the FIRST AND FOURTEENTH Amendments.

(Compl. ¶4 (reproduced verbatim)). Despite this statement, which appears to limit the cause of action to Mr. Rittner's placement in segregation at Noble Correctional Institution ("NCI"), Mr. Rittner also claims that he was transferred to the Allen County Correctional ("ACI") Institution and placed in the "Maximum Security Mental Health Unit" in violation of the First and Fourteenth Amendments.

Mr. Wolfe filed a motion for summary judgment arguing, inter alia, that due process was not required prior to placing Mr. Rittner in segregation or the mental health unit; there was no First Amendment retaliation in this case; Mr. Rittner's claims are barred by the statute of limitations; Mr. Rittner suffered no physical injury as required by the PLRA; and that Mr. Wolfe is entitled to qualified immunity. The motion is fully briefed and ripe for adjudication.


Fed. R. Civ. P. 56(c) provides:

The judgment sought shall be rendered forthwith 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 that the moving party is entitled to judgment as a matter of law.

"[T]his standard provides that 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, 247-48 (1986)(emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).

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, 477 U.S. at 248. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). Therefore, summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is,...[and where] no genuine issue remains for trial,...[for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 467 (1962); accord, County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984).

In making this inquiry, the standard to be applied by the Court mirrors the standard for a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477 U.S. at 250. The primary difference between the two motions is procedural: summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

In a motion for summary judgment the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970) (footnote omitted); accord, Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.1984), cert. denied, 469 U.S. 1062 (1985). Inferences to be drawn from the underlying facts contained in such materials must be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Watkins v. Northwestern Ohio Tractor Pullers Association, Inc., 630 F.2d 1155, 1158 (6th Cir.1980). Additionally, "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60; Smith v. Hudson, 600 F.2d 60, 65 (6th Cir.1979).

If the moving party meets its burden and adequate time for discovery has been provided, 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, 477 U.S. at 322. 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. As is provided in Fed. R. Civ. P. 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Thus, "a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him." First National Bank of Arizona v. Cities ...

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