United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion for Summary Judgment
of Defendants. (ECF #92). Plaintiff filed a Response in
opposition to the Defendants' motion. (ECF #128).
Defendants filed a Reply in support of their motion for
summary judgment. (ECF #134). Also pending before the Court
is a fully briefed Motion to Strike Declaration of Thomas
Adgate. (ECF #135, 139, 140). Having considered all of the
submissions, and having reviewed the undisputed facts and
applicable law, this Court finds that Mr. Adgate's
Declaration should be stricken, and Defendants' Motion
for Summary Judgment should be GRANTED.
and Procedural History
Dewey Amos Jones filed a Complaint under 42 U.S.C. §
1983 and Ohio law. Plaintiff voluntarily abandoned certain
claims set forth in the Complaint. The remaining pending
claims under §1983 are: (1) Suppression of Exculpatory
Material; (2) Suggestive Identification; (3) Fabricated
Evidence; (4) Malicious Prosecution; and, (5) Conspiracy. He
also has pending claims for Malicious Prosecution, Infliction
of Emotional Distress, and Indemnification under Ohio state
law. (ECF #1). Defendants filed an Answer on March 13, 2015.
(ECF #13), and filed an Amended Answer on May 5, 2017. (ECF
February 27, 2017, Plaintiff voluntarily dismissed Defendants
Robert Hamas, Ronald Clark, and Bruce Van Horn,
pursuant to Fed.R.Civ.P. 41(a)(1). Defendants Charles Snyder
and George Reuscher were also voluntarily dismissed on
November 1st and 2nd of 2017,
respectively. (ECF #110, 111). The remaining Defendants are
the City of Akron, Robert McFarland, and Charles Parke.
Court will not include an exhaustive recitation of the facts
and evidence presented during Plaintiff's criminal trial,
but will address only those facts relied on by the parties or
otherwise relevant to the issues presented for analysis in
this case. Neil Rankin was murdered in his home between 4:00
and 8:00 p.m. on February 13, 1993. (ECF #105 at 114-115).
One wrist had been tied, and he had been shot twice in the
head. There was no sign of forced entry. Mr. Rankin's car
was missing, along with several other items that were taken
from the house. Plaintiff's wife, Lori Jones, and a
friend, Gary Rusu, found the body on February 14, when Ms.
Jones claims to have gone to his house to check on him after
being unable to reach him the day before. (ECF #101 at 32).
An investigation ensued.
the body was discovered, police interviewed a neighbor, Mr.
Strittmater, who lived directly across the street. According
to Detective Lacy's Report of Investigation, Mr.
Strittmater recalled seeing a white male, mid-30s, with brown
or dark neck length hair, and “beer belly” inside
the breezeway of the victim's house around 4:00 pm on
February 13, 1993. He indicated that he had not seen the man
before, and described him as wearing a 3/4 length dark
burgundy jacket, with black pants, black leather shoes, and
very noticeable glasses. (ECF # 92-2 at 2). A Report of
Investigation filed by Sgt. Arnette the next day indicated
that Mr. Strittmater estimated the man's height to be
5'9." (ECF #101 at 35).
Rankin's car was found the day after the murder. Two
witnesses, Mr. Fisher, a teenage boy, and his soon to be
stepfather, Mr. Hughey, both saw a man next to Mr.
Rankin's car where it had been left after the murder.
According to Detective Lacy's Report of Investigation,
Mr. Fisher saw a man that afternoon/evening around 4:45 -5:30
p.m., and Mr. Hughey saw “the guy with glasses”
on Wednesday, several days prior to the murder. (ECF # 92-2
at 3; ECF #119 at 27). The man was described by Mr. Fisher as
white, 28-32 years old, approximately 6'1" and 185
lbs. He was said to have brown, neck length hair, and was
wearing a dark leather coat, dark pants, and old style
on the night of February 14th, Sgt. Arnette showed
Mr. Strittmater a photo array from which he identified Terry
Bowers as the person “who looked most like” the
man he had seen in the breezeway. (ECF #101 at 549). The same
photo array was shown to Mr. Fisher and Mr. Hughey, the two
men who had seen an individual by the victim's car. (ECF
#101 at 35). Both of these witnesses selected a photo of
Larry Hayes as matching the person they had seen. (ECF #101
at 35). In their briefing, the parties do not clearly
indicate whether Plaintiff's picture was contained in
this original photo array, however a later statement by Mr.
Hughey, and Detective McFarland's testimony at the first
suppression hearing suggest that it was not. (ECF #92-2, at
58; ECF #104 at 60, lines 23-25). This photo array was lost
sometime before Plaintiff was indicted for the murder,
robbery, and kidnaping of Mr. Rankin.
December of 1993, the police re-visited Mr. Strittmater and
showed him another photo array containing sixteen Polaroids.
According to Detective McFarland's field notes of this
interview, Mr. Strittmater identified Mr. Rusu and Mr. Courie
as people he'd seen at the victims house before. He also
identified pictures of two women who used to come over to the
victim's house. He identified Billy Wilson as someone he
had seen coming to the victim's house in an old Chevy
pick up, and stated that he was a mechanic. Mr. Strittmater
said that if Billy Wilson had been dressed up in a black
leather jacket and shaved, “it would look like
him” (presumably referring to the person in the
breezeway on the day of the murder). (ECF #101 at 145).
According to the Reports of Investigation, when questioned
whether he had previously identified a different person, Mr.
Strittmater indicated he had previously picked Larry Hayes
because his was “the only one of the pictures I saw
that I recognized as being over at Neal's. Now that I see
both together, I feel that it was this guy (Wilson) that I
saw leave the breezeway that night with something under his
jacket.” (ECF #101 at 145). Detective McFarland's
notes from that day, as well as the prior Report of
Investigation, shows that Mr. Strittmater never identified
Larry Hayes as the possible suspect, but rather had
previously identified Terry Bowers. (ECF #102 at 304-306).
to the Reports of Investigation, Mr. Strittmater identified
Plaintiff's photo and one other as people who had been to
the victim's house and helped move his car. He also noted
that had seen Plaintiff there frequently to clean up the
victim's garage. Although it was not mentioned in the
Report of Investigation, Detective McFarland's field
notes indicated that the Detective then pulled five of the
pictures out and told him “if you were shown these five
pictures (not knowing the five in the array other than Larry
Hayes), what would you say?” From the five photos, Mr.
Strittmater “immediately selected Billy Wilson.”
He said it could also have been a Harold but only if he had
shorter hair and was clean shaven at the time. It is unknown
whether Plaintiff's picture was one of the five photos
pulled out. The police then expanded the array to thirty
photos, but the notes do not indicate whether Mr. Strittmater
identified any of the individuals in the added photos. (ECF
#92-2 at 60-66).
same thirty photographs provided to Mr. Strittmater were
shown to Mr. Hughey and Mr. Fisher, the witnesses who saw a
man near Mr. Rankin's car. (ECF #92-57-58). Having seen
these new photographs, Mr. Fisher affirmed his original
identification of Larry Hayes, while Mr. Hughey selected
Plaintiff's picture and reportedly stated that he would
have picked that photo earlier if it had been in the original
array. (ECF #92-2, at 58).
March 8, 1994, Detective McFarland took Mr. Strittmater to a
tow yard to identify the orange truck he had seen around Mr.
Rankin's house, prior to and on the night of the murder.
(ECF #101 at 171). Mr. Strittmater identified the truck as
the one he had seen, and stated that he had seen George
Courie drive the truck to Mr. Rankin's house a number of
times in January and February of 1993. (ECF #101 at 172).
According to the Report of Investigation, Mr. Strittmater
again stated that Plaintiff was the person he has most often
seen at Mr. Rankin's house, but that Billy Wilson was the
person he saw in the breezeway the night of the murder. (ECF
#101, at 172-173).
3, 1994, Detectives Parke and McFarland visited Mr.
Strittmater yet again, and showed him another six picture
array. (ECF #100 at 198, 201-202). According to Detective
McFarland the purpose of showing the array at this visit was
to confirm that Plaintiff was the person who was at Mr.
Rankin's house the most often, even though he had already
identified him as the most frequent visitor during the prior
interviews in December of 1993 and February of 1994. (ECF
#100 at 202-203). Mr. Strittmater again identified Plaintiff
as “probably the most frequent visitor to Rankin's
house, ” and the signed the back of the picture. (ECF
#100 at 205-206).
Strittmater was then shown a single photo of Plaintiff with
glasses on. This photograph was actually a Christmas
photo showing Plaintiff with his wife and children. (ECF #104
at 75; ECF #100 at 206). According to the Report of
Investigation, Mr. Strittmater said “Wow, that really
looks like the guy I saw coming out the front door of
Neal's house when he walked over towards the
truck.” (ECF #101 at 217). According to the
reports and Detective McFarland's Deposition testimony in
this case, this was the first time that Mr. Strittmater made
any connection between Plaintiff and the man in the breezeway
on the night of the murder. (ECF # 100 at 199-
209). Previously, Mr. Strittmater had repeatedly
stated that he had seen Plaintiff at Mr. Rankin's house
on frequent occasions but that the person in the breezeway
was someone he had never seen before and was a stranger to
him. (ECF #100 at 170, 186, 205). The Christmas picture of
Plaintiff and his family was the only picture ever shown to
the witness in which any subject was wearing glasses. (ECF
#104 at 77; ECF #100 at 206). On May 3, 1994, the Detectives
also revisited Mr. Hughey. Mr. Hughey reiterated his belief
that Plaintiff was the person seen in and around Mr.
Rankin's car the day after the murder. (ECF #101 at 217).
Jones, and Virginia Jones, Plaintiff's wife and sister,
respectively, were indicted for the Aggravated Murder,
Aggravated Robbery, and Kidnaping of Mr. Rankin on June 3,
1994. (ECF #93-4; 93-5). Gary Rusu was indicted on the same
charges on July 18. (ECF #93-6). Plaintiff was charged with
tampering with evidence and obstructing an investigation. He
was arrested on those charges on August 2, 1994. (ECF #92-7).
in October, William Caton, an individual who was incarcerated
with the Plaintiff, talked to Detective Parke. Mr. Caton
informed Detective Parke that Plaintiff had said that a gun
recovered by the police “wasn't the gun” and
“that they would never find the gun.” (ECF #105
at 258). This was corroborated to some degree by information
received from another inmate, Michael Higgins, who reported
that Plaintiff told him that he and Gary Rusu had thrown the
murder weapon into Blue Pond and the police will never find
it there. (ECF #95 at 127). Mr. Caton refused to say anything
more about Plaintiff or the murder of Mr. Rankin during that
meeting. (ECF #38-2 at 5; ECF #95 at 123).
October 21, 1994, a suppression hearing was held challenging
the identifications of Plaintiff by Mr. Strittmater and Mr.
Hughey. (ECF #104). Exhibit 1 at the hearing was the six
person photographic array shown to Mr. Strittmater and Mr.
Hughey in May of 1994. (ECF #104 at 13-14). The parties have not
provided a copy of Exhibit 1a, however, the testimony at the
suppression hearing indicates that Exhibit 1a was a picture
of Plaintiff. (ECF #104 at 37-38, 66-67). Mr. Strittmater
testified that this photograph (1a) was the person he saw at
Mr. Rankin's house. (ECF #104 at 14-15). He also
testified that this was the same person he identified in
December. (ECF #104 at 15). Exhibit 3 was the thirty person
array shown to the witnesses in December. Exhibit 3a was
picture of Plaintiff, with a mustache but no beard, that was
contained in the thirty person array. (ECF #104
at63- 46; ECF #93-1 at 8-9). Billy Wilson's picture was
also in the thirty person array. (ECF #104 at 65).
Immediately following, Mr. Strittmater testified that the
person he saw at the house on February 13th was
the Plaintiff, and he identified him in the courtroom. (ECF
#104 at 15).
to the Report of Investigations, as outlined above, Mr.
Strittmater identified Mr. Wilson, not Plaintiff, as the
person he saw (or who looked like he saw) in the breezeway on
multiple occasions, including at the December and May photo
arrays. However, at the suppression hearing, when questioned
about his identification of who was at the house on the night
of the murder, Mr. Strittmater testified that he picked
Exhibit 1a (Plaintiff's photo) as “the man [he] saw
at Neal Rankin's house.” (ECF #104 at 14, 62). He
also testified that this picture was the same photo that he
picked from “that large group of photographs.”
This would appear to reference the prior thirty photo array.
Plaintiff's lawyer on cross-examination did try to point
out that Mr. Strittmater previously chose Mr. Wilson's
photo on several occasions but did not clarify that,
according to the Reports of Investigation, there was no
record that Mr. Strittmater identified the Plaintiff as
looking like the person in the breezeway until he was shown
the single family Christmas photo in which Plaintiff was
wearing glasses. (ECF #104 at 25-26).
suppression hearing, Detective McFarland testified that Mr.
Strittmater “zeroed in on” Plaintiff's
picture when he was asked who the “person was he saw
around Mr. Rankin's house on February
13th.” (ECF #104 at 63). He also testified
that neither Mr. Strittmater nor Mr. Hughey were shown the
family Christmas photo of Plaintiff wearing glasses until
after they had already identified and signed the picture of
Plaintiff from the six picture array in May of 1994. (ECF
#104 at 76). The prosecutor focused in closing not on the
Christmas photo identification, but on the alleged
identification of Plaintiff by both witnesses from the May,
six picture array. In closing, he stated that Mr. Strittmater
“fairly certainly, picked Dewey Jones” from this
array.” (ECF #104 at 101).
to the Reports of Investigation, and Detective
McFarland's deposition testimony for this case, Mr.
Strittmater did not pick Plaintiff out of the thirty person
array. (ECF #101 at 145). Detective McFarland confirmed, in
his deposition, that Mr. Strittmater had never identified
Plaintiff as the man in the breezeway and never stated that
he looked like that man until he was shown the Christmas
photo of Plaintiff. (ECF #100 at 213-214). Specifically he
testified that as of May 3, 1994, “as far as my
investigation of Robert Strittmater was, he identified Bill
Wilson associated with the breezeway, never identified Dewey
at that point being at the breezeway and only identified
Dewey at that point being the one most often there.”
(ECF #100 at 199).
Hughey testified at the hearing, attesting that he
immediately identified Plaintiff as the person he saw with
the victim's car following the murder when he was shown
Plaintiff's picture in December and in May, both prior to
viewing the Christmas photo with glasses. (ECF #104 at 39,
56). He told the investigators that he would have chosen
Plaintiff's picture in February if it had been included
in the original array that he had been shown. (ECF #92-2 at
58). This is corroborated by the Reports of Investigation.
Mr. Hughey also identified Plaintiff in court at the
suppression hearing and at trial as the man he saw at the
car. According to his tesimony in the deposition for this
case, he remains steadfast in belief that the Plaintiff was
the person he saw with the victim's car on the day after
the murder. (ECF #99).
conclusion of the suppression hearing, the court held as
The Court has had the opportunity to look at the State's
Exhibit Number 1 as well as the other multitude of
photographs in this case. I am not convinced that the
out-of-court identification in this case was in any way
suggested by or unduly influenced by the photo array process
that was conducted in this case ... In any event, the Court
does not find the process unduly suggestive in any way,
particularly in examining State's Exhibit Number 1... I
do not find that that procedure in any way contributed to the
identification by Mr. Strittmater or Mr. Hughey. I feel that
they had sufficient opportunity to observe the individual the
day in question, so the motion to suppress is hereby
(ECF #104 at 97-98).
on the testimony provided at the suppression hearing, the
identifications by Mr. Strittmater and Mr. Hughey, and other
background information, the Prosecutor decided that he would
seek an indictment against Plaintiff on the charges of
Aggravated Murder, Aggravated Robbery, and Kidnaping, and
would dismiss the indictments against the other suspects,
Gary Rusu, Lori Jones, and Virginia Jones. (ECF # 34-7; ECF #
96 at 19-22, 77). The detectives did not request these
additional charges and Detective McFarland, in particular,
did not support pursuing murder charges against Plaintiff at
that time. (ECF #55 at 55-57). Plaintiff was indicted for
Aggravated Murder, Aggravated Robbery and Kidnaping with
firearm specifications on November 22, 1994. (ECF # 93-8).
December 10, 1994, Mr. Caton sent Detective Parke a letter
that talked about Plaintiff having a part in Mr. Rankin's
murder. (ECF #38-2 at 6-10; ECF #105 at 262). He was
interviewed by Detective Parke and told the detective that
Plaintiff had confessed to murdering Neal Rankin. (ECF # 95
at 144-145). Later that month, Mr. Caton sent a letter to the
prosecutor stating that he did not want to testify against
Plaintiff if he was going to be in a correction facility
because he was afraid of retribution. The letter asked the
prosecutor for help being placed into treatment and help
finding a job. (ECF #38-2 at 10-12; ECF #105 at 263-265). Mr.
Caton testified at Plaintiff's trial that no one,
including the prosecutor, promised to help him in any way,
although he hoped that they would. (ECF #38-2 at 14).
trial began on February 21, 1995. (ECF #105). A mistrial was
declared the same day because one of the prosecution
witnesses, the daughter of the victim, Mr. Rankin, disclosed
the Plaintiff's prior criminal history in front of the
jury, despite having being counseled by the Prosecutor and by
the Court not to do so. (ECF #105 at 27-29). A new jury was
empaneled the next day and trial proceeded. (ECF #105). Among
the evidence presented at trial were the identifications by
Mr. Strittmater and Mr. Hughey, and the testimony of Mr.
Caton. (ECF #105 at 149). The victim's daughter also
testified that her father had asked her for a gun shortly
before his death because he was afraid of the
Plaintiff. Another witness testified that Plaintiff
had previously said he was upset that Mr. Rankin gave
Virginia Jones more money than he gave to Plaintiff's
wife, Lori, and that “he wouldn't mind putting a
gun to [Mr. Rankin's] head one day and pulling the
trigger.” State v. Jones, 1996 Ohio App. LEXIS
289, *7. An additional witness tied Plaintiff to the truck
parked near Mr. Rankin's house on the day of the murder.
Id. at *21.
was convicted of Aggravated Murder, Aggravated Robbery, and
Kidnaping with firearm specifications. He was sentenced on
March 1, 1995 to life imprisonment for the Aggravated Murder,
and to ten to twenty-five years each on the Aggravated
Robbery and Kidnaping charges. All of the charges were
sentenced to run consecutively. He was also sentenced to a
mandatory three years to be served first and consecutively to
the others for the firearm specification. (ECF #105 at
direct appeal, Plaintiff raised several assignments of error
relating to evidentiary rulings, prosecutorial statements in
closing, and sufficiency of the evidence. State v.
Jones, 1996 Ohio App. LEXIS 289 at *1-2. He did not
appeal the trial court's ruling denying his motion to
suppress Mr. Strittmater's and Mr. Hughey's
identifications. Id. The Ninth District Court of
Appeals overturned the kidnaping conviction for insufficiency
of the evidence. All other aspects of the jury verdict and
sentencing were affirmed. (ECF #96 at 91; State v.
Jones, 1996 Ohio App. LEXIS 289). The trial court
vacated the kidnaping sentence and issues a new journal entry
reimposing the remaining sentences. Plaintiff filed a notice
of appeal to the Ohio Supreme Court, which was dismissed as
not involving any substantial constitutional question.
See Jones v. Mitchell, Case No. 4:97 CV 989, April
21, 1997, ECF #13 at p. 2.
then filed a habeas corpus petition with the
Northern District of Ohio, challenging his convictions on the
grounds that he was denied his right to confront a witness
and present a defense when his counsel was prevented from
asking Detective McFarland if the victim's daughter had
ever mentioned her father's fear of Plaintiff prior to
trial. Jones v. Mitchell, Case No. 4:97 CV 989. The
district court held that even if she had not previously
mentioned her father's alleged fear of Plaintiff, this
would not demonstrate witness bias and would not have
affected the fundamental fairness of his trial. The petition
was, therefore, denied. Jones v. Mitchell, Case No.
4:97 CV 989, Docket No. 13, 16, January 9, 1998. The denial
was appealed to the Sixth Circuit Court of Appeals, and was
affirmed. Jones v. Mitchell, Case No. 98-3130,
February 23, 1999.
time of Plaintiff's trial the available DNA testing was
not able to provide any results. Plaintiff sought permission
to have the DNA evidence tested after his conviction when the
testing technology improved to the point where a successful
test was possible. Some of the DNA results affirmatively
excluded the Plaintiff, and some were inconclusive. The
Common Pleas Court of Summit County, Ohio granted Mr.
Jones' Motion for New Trial in July 2012, based on the
new DNA evidence, which it determined could be exculpatory,
but did not conclusively show innocence. The government
appealed this decision, and the Ninth District Court of
Appeals upheld the ruling. State v. Jones, 2013 Ohio
App. LEXIS 3029 (9th App. Dist., July 10, 2013).
August 8, 2013, the state filed a notice of intent to retry
Plaintiff. (ECF #43-1 at 4). Plaintiff filed several
pre-trial motions, including motions attacking the
indictment, the admissibility of Mr. Caton's testimony,
the admissibility of Mr. Strittmater and Mr. Hughey's
identifications, and addressing other potential evidentiary
issues. (ECF #93-13). The Court of Common Pleas denied the
motion to dismiss indictment, the motions to suppress the
identifications of Plaintiff, and the motion to suppress Mr.
Caton's testimony. (ECF #93-13).
January 30, 2014, the State filed a Motion to Dismiss the
charges against Plaintiff. The Court granted that motion,
dismissing the case without prejudice. Consequently, Mr.
Jones was set free after serving more than nineteen years in
prison. Plaintiff's defense counsel filed a Motion for
Dismissal with Prejudice which was denied on February 6,
2015. In its decision the court noted that there was no
statute of limitations on murder, and declared that it could
not make a presumptive finding that any future prosecution
would violate Plaintiff's speedy trial rights. (ECF #
case was filed on December 1, 2014, seeking damages for
alleged violations of his right to fair trial under 42 U.S.C.
§ 1983, and for Malicious Prosecution, Infliction of
Emotional Distress, Spoilation, and Indemnification under
Ohio state law.
judgment is appropriate when the court is satisfied
“that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). The burden of
showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment 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 affidavits, if any, '
which it believes demonstrates the absence of a genuine issue
of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(citing Fed.R.Civ.P. 56©). A fact is
“material” only if its resolution will affect the
outcome of the lawsuit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Determination of whether
a factual issue is “genuine” requires
consideration of the applicable evidentiary standards. The
court will view the summary judgment motion in the light most
favorable to the party opposing the motion. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
judgment should be granted if a party who bears the burden of
proof at trial does not establish an essential element of
their case. Tolton v. American Biodyne, Inc., 48
F.3d 937, 941 (6th Cir. 1995) (citing
Celotex, 477 U.S. at 322). Accordingly, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Copeland v. Machulis, 57 F.3d 476,
479 (6th Cir. 1995) (citing Anderson, 477
U.S. at 252). Moreover, if the evidence presented is
“merely colorable” and not “significantly
probative, ” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50
(citations omitted). In most civil cases involving summary
judgment, the court must decide “whether reasonable
jurors could find by a preponderance of the evidence that the
[non-moving party] is entitled to a verdict.”
Id. at 252. However, if the non-moving party faces a
heightened burden of proof, such as clear and convincing
evidence, it must show that it can produce evidence which, if
believed, will meet the higher standard. Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th
the moving party has satisfied its burden of proof, the
burden then shifts to the non-mover. The non-moving party may
not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be
solved by a jury.” Cox v. Kentucky Dep't of
Transp., 53 F.3d 146, 149 (6th Cir. 1995).
Fed.R.Civ.P. 56(e) states:
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 the adverse party's
pleading, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
Federal Rules identify the penalty for the lack of such a
response by the nonmoving party as an automatic grant of
summary judgment, where otherwise appropriate. Id.
Conclusory, factually unsupported allegations are
insufficient to withstand a motion for summary judgment.
Gagne v. Northwestern National Ins. Co., 881 F.2d
309, 315-16 (6th Cir. 1989).
parties must produce evidence in support of and in opposition
to a motion for summary judgment, not all types of evidence
are permissible. The Sixth Circuit has concurred with the
Ninth Circuit that “‘it is well settled that only
admissible evidence may be considered by the trial court in
ruling on a motion for summary judgment.'”
Wiley v. United States, 20 F.3d 222, 225-26
(6th Cir. 1994) (quoting Beyene v. Coleman
Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th
Cir. 1988)). Fed.R.Civ.P. 56(e) also has certain, more
[Rule 56(e)] requires that affidavits used for summary
judgment purposes be made on the basis of personal knowledge,
set forth admissible evidence, and show that the affiant is
competent to testify. Rule 56(e) further requires the party
to attach sworn or certified copies to all documents referred
to in the affidavit. Furthermore, hearsay evidence cannot be
considered on a motion for summary judgment.
Wiley, 20 F.3d at 225-26 (citations omitted).
However, evidence not meeting this standard may be considered
by the district court unless the opposing party affirmatively
raises the issue of the defect.
If a party fails to object before the district court to the
affidavits or evidentiary materials submitted by the other
party in support of its position on summary judgment, any
objections to the district court's consideration of such
materials are deemed to have been waived, and [the Sixth
Circuit] will review such objections only to avoid a gross
miscarriage of justice.
Id. at 226 (citations omitted).
general matter, the district judge considering a motion for
summary judgment is to examine “[o]nly disputes over
facts that might affect the outcome of the suit under
governing law.” Anderson, 477 U.S. at 248. The
court will not consider non-material facts, nor will it weigh
material evidence to determine the truth of the matter.
Id. at 249. The judge's sole function is to
determine whether there is a genuine factual issue for trial;
this does not exist unless “there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Id.
proper summary judgment analysis entails “the threshold
inquiry of determining whether there is the need for a
trial--whether, in other words, there are any 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.” Anderson, 477 U.S. at 250.
42 U.S.C. § 1983/Due Process Clause
Suppression of Exculpatory Material
originally claimed that the prosecution destroyed and/or
failed to turn over several items of exculpatory evidence. He
has since abandoned his claim for destruction of evidence, so
the Court will consider only those items claimed to have been
in the Defendants' possession and allegedly withheld from
the Plaintiff prior to his criminal trial. (ECF #128 at 24,
fn. 10). The information Plaintiff claims was suppressed
includes: (1) Detective McFarland's personal file
(consisting primarily of his field notes),  as well the
field notes of Detective Parke; (2) letters written to
suspect Gary Rusu; (3) alleged promises made to William
Caton, Michael Higgins, Albert Frank Butler, and Juliet
DeRita; (4) photo arrays shown to Mr. Hughey and Mr.
Strittmater; (5) a photograph of Plaintiff taken on February
15, 1993; (6) audio recordings of interviews; and, (7)
information relating to the murder weapon. Defendants claim