The Sixth Circuit again, for the second time in five months, has turned back a strong defensive attempt to have a collateral procedural argument become the basis for the Circuit to not hear nor actually construe the arguments on appeal as presented inside the Scipio briefs before the Sixth Circuit.
The Court recognized certain procedural irregularities existed on the briefing aspects of the Scipio appeal due to the pro se nature of the appellate process on the Scipio party side of the case, nonetheless, the Circuit refused to grant for that reason alone, a dismissal of the entire appeal or on its major arguments as requested in a second attempt by the City of Steubenville's lawyers to do so.
The Sixth Circuit has ruled that the pro se nature of the appeal and the fact that the Sixth Circuit has the view that such appeals are normally decided not on purely procedural grounds or pro forma compliance with the FRAP rules, but rather on "the merits of the appeal itself." With this noted, the Sixth Circuit stated clearly it is rejecting this collateral attack on the pending appeal on purely those grounds alone and that it will allow the substantive arguments and claims on appeal to be heard due to the fact they believe the pro se attempts of Mr. Sean Scipio have clarified for the court, the various issues and appellate arguments which the plaintiff has made inside the same sufficiently so that this case can be decided
on the merits at the Sixth.
This is significant in that both the recent ADA amendments signed into law by the President recently, just after Congressional approval passed for the same, this fall and the original policy claims of the case brought against the City and the original false arrest claim which was first allowed then oddly rejected by the lower district court, were going to be considered actively within the present pending appeal.
This means the case will continue on at the Sixth Circuit as the parties await for the next direction from the court as to what is to occur with the appeal, which has been subjected to complete briefings by both sides at this time.
So, next up, is for the court to set down either an oral argument date and/or make a ruling that it will simply make its decision and give an opinion on the merits of the briefs submitted by the parties to date. All this gives a reserved but strong sign which is encouraging for the plaintiff, is so far the Court today believes that the plaintiff's briefs do sufficiently clarify for the Court's purpose those issues which have been engaged on appeal by the plaintiff, well enough in order for the court to decide the same.
Thus, the Scipio family awaits anxiously the final outcome on a years long litigation effort at the Sixth which has now turned back once more, the final procedural collateral attack of the City defendants to not have these issues actually decided on their merits.
Thursday, December 4, 2008
Sixth Circuit Again Turns Down Several Defense Procedural Motions to Dismiss or Deny Scipio's Appeal
Sunday, June 22, 2008
Sixth Circuit Grants Steubenville Plaintiff Civil Rights Claim Procedural Right of Appeal on All Relevant Issues Including City Policy and ADA Claims
The Sixth Circuit has decided an important procedural matter in favor of Plaintiff
Sean Scipio Sr in relation to his pending appeal of his Steubenville related civil rights
police misconduct case.
Sean Scipio had filed a complaint against the city of Steubenville in 2005 through
Attorney Richard Olivito. The case was managed thru discovery and until summary
Judgment briefs by Mr. Olivito until his license went under Ohio Supreme Court
Review in late 2006. The case was tried on one claim only, w/three other claims withheld
from the jury late last year. The verdict was a defense favorable verdict on the excessive
force claim but there were a number of remaining issues and various serious deficiencies
which produced a timely filed notice of appeal of both the verdict and the outstanding
claims that were not litigated at trial.
The defense lawyers then filed a motion to dismiss the appeal this past Spring as one not proper and incomplete and as not granting jurisdiction to the remaining claims of the
case.
The underlying procedural history of the district court level case had a series of very odd occurances and in court related decisions that do not appear to meet the demands of basic due process and fairness as well as incorporating the sense of broad liberal interpretation that is supposed to follow such Section 1983 litigation claims.
Thus, after these several unique decisions by the district court in Columbus and after his subsitute counsel filed a responsive summary judgment brief but also made a mistake in terms of the false arrest claim, incorrectly misfiling a pre trial motion that stated that there was no false arrest claim despite the fact the responsive brief contained an argument in favor of one and also the complaint mentions four separate times the nature of one of the claims being based on the Fourth Amendment
improper search and seizure, the plaintiff based his notice of appeal as one inclusive of all the remaining claims, not just the one excessive force claim that was tried to a jury last November, including a very strong false arrest related claim that the lower court had months prior to the trial, taken away from the jury, on procedural related grounds.
The district court had held upon the original responsive brief filing of the plaintiffs, that there was a sufficient evidence to overcome summary judgment on the false arrest claim. Then, two weeks later, in a very odd reversal, the court after the misnomer was pointed out to the court by the defendant's reply brief, it changed its mind and issued an order recinding its earlier decision stating that the case contained no false arrest claim.
This irony was very obvious and it led to more irregularities in the case
Now, the sixth circuit has granted now the plaintiffs the right to appeal over the objection of the defense lawyer procedural motion to dismiss the plaintiff's appeal, the right to appeal the false arrest claim, as well as several critical claims that were also dismissed by the district court against the manifest weight of the evidence.
The decision represents a victory on procedural grounds for Scipio at this time and represents a critical allowance for the three year old litigation effort to continue and for the plaintiffs to have a true independent chance to present their substantive varied claims before a truly independent judicial review perhaps for the first time since the case was actually filed in 2005 by Attorney
Richard Olivito.
It also produces a great deal of torque on the local system from the City of
Steubenville who has had the longest consecutive police misconduct Federal
DOJ consent decree in the United States history which was at the time of the incident
complained of in this and related cases still operative and supposedly being enforced
at the time of the alleged Scipio constitutional violations and events.
The fact that the Sixth Circuit will be hearing various claims including the critical
pattern and practice Section 1983 'policy' claim from inside the City of Steubenville represents a major milestone in these various related civil rights police cases and present circumstances facing the plaintiffs in this very timely high federal court decision.
The plaintiff and Midwest Center Director Richard Olivito will anxiously await the final briefing schedule and outcomes on this closely watched interested legal theory case containing several novel approaches to police misconduct and citizen police encounters including a claim which
raises the issue of whether or not the American w/Disabilities Act applies to police
citizen arrest encounters, an issue which several Circuits have spoken to in the past
but one that needs further clarification from the Sixth Circuit going forward.
Sean Scipio Sr in relation to his pending appeal of his Steubenville related civil rights
police misconduct case.
Sean Scipio had filed a complaint against the city of Steubenville in 2005 through
Attorney Richard Olivito. The case was managed thru discovery and until summary
Judgment briefs by Mr. Olivito until his license went under Ohio Supreme Court
Review in late 2006. The case was tried on one claim only, w/three other claims withheld
from the jury late last year. The verdict was a defense favorable verdict on the excessive
force claim but there were a number of remaining issues and various serious deficiencies
which produced a timely filed notice of appeal of both the verdict and the outstanding
claims that were not litigated at trial.
The defense lawyers then filed a motion to dismiss the appeal this past Spring as one not proper and incomplete and as not granting jurisdiction to the remaining claims of the
case.
The underlying procedural history of the district court level case had a series of very odd occurances and in court related decisions that do not appear to meet the demands of basic due process and fairness as well as incorporating the sense of broad liberal interpretation that is supposed to follow such Section 1983 litigation claims.
Thus, after these several unique decisions by the district court in Columbus and after his subsitute counsel filed a responsive summary judgment brief but also made a mistake in terms of the false arrest claim, incorrectly misfiling a pre trial motion that stated that there was no false arrest claim despite the fact the responsive brief contained an argument in favor of one and also the complaint mentions four separate times the nature of one of the claims being based on the Fourth Amendment
improper search and seizure, the plaintiff based his notice of appeal as one inclusive of all the remaining claims, not just the one excessive force claim that was tried to a jury last November, including a very strong false arrest related claim that the lower court had months prior to the trial, taken away from the jury, on procedural related grounds.
The district court had held upon the original responsive brief filing of the plaintiffs, that there was a sufficient evidence to overcome summary judgment on the false arrest claim. Then, two weeks later, in a very odd reversal, the court after the misnomer was pointed out to the court by the defendant's reply brief, it changed its mind and issued an order recinding its earlier decision stating that the case contained no false arrest claim.
This irony was very obvious and it led to more irregularities in the case
Now, the sixth circuit has granted now the plaintiffs the right to appeal over the objection of the defense lawyer procedural motion to dismiss the plaintiff's appeal, the right to appeal the false arrest claim, as well as several critical claims that were also dismissed by the district court against the manifest weight of the evidence.
The decision represents a victory on procedural grounds for Scipio at this time and represents a critical allowance for the three year old litigation effort to continue and for the plaintiffs to have a true independent chance to present their substantive varied claims before a truly independent judicial review perhaps for the first time since the case was actually filed in 2005 by Attorney
Richard Olivito.
It also produces a great deal of torque on the local system from the City of
Steubenville who has had the longest consecutive police misconduct Federal
DOJ consent decree in the United States history which was at the time of the incident
complained of in this and related cases still operative and supposedly being enforced
at the time of the alleged Scipio constitutional violations and events.
The fact that the Sixth Circuit will be hearing various claims including the critical
pattern and practice Section 1983 'policy' claim from inside the City of Steubenville represents a major milestone in these various related civil rights police cases and present circumstances facing the plaintiffs in this very timely high federal court decision.
The plaintiff and Midwest Center Director Richard Olivito will anxiously await the final briefing schedule and outcomes on this closely watched interested legal theory case containing several novel approaches to police misconduct and citizen police encounters including a claim which
raises the issue of whether or not the American w/Disabilities Act applies to police
citizen arrest encounters, an issue which several Circuits have spoken to in the past
but one that needs further clarification from the Sixth Circuit going forward.
Friday, September 28, 2007
Sixth Circuit Grants Plaintiffs A Clean Sweep Victory on Thorne's Appeal
The Sixth Circuit Court of Appeals in Cincinnati this past week affirmed the lower district court opinion of Judge Algenon Marbley [see below] denying summary judgment to the City of
Steubenville on two Fourth Amendment related constitutional claims arising from a warrantless search of their residence and the resulting misdemeanor arrest of the Thorne teen aged son, thereby clearing the Thorne family civil rights police misconduct main excessive force case and these related constitutional claims against the city officers for remand and trial.
This decision represents a major legal victory for the plaintiffs and their lawyers. Noting that the opinion is an unpublished opinion, the sixth Circuit granted the plaintiffs a favorable decision in an extremely short period of time following the mid- September oral arguments on the case, which speaks of just how unamious and serious the Cincinnati federal Court of Appeals was quick to affirm the otherwise clearly detailed opinion of Judge Marbley in favor of the plaintiff's original pleadings and constitutional claims which were originally brought and prosecuted by attorney Richard Olivito on behalf of the Thorne family against the City of Steubenville and the two offending officers named as defendants in the federal lawsuit.
"This simply is an astounding and very strong but briefly stated appellate federal court opinion and one that has great impact on both this case and as important, all related issues which demonstrates the particular nuances and clear necessity that all potential civil rights litigants including cities and their police officers ought to pay very careful and serious attention to;
The federal three judge panel' ---a very conservative panel---quick willingness to decide a case on its merits in favor of the plaintiff civil rights litigant, well distinct and apart from any often perceived 'conservative' bias against such plaintiffs inside related civil rights constitutional claims when over zealous officers clearly violate well established fourth amendment standards and related laws," Olivito remarked.
"This case's outcome at the Sixth Circuit is so unique, so special and especially meaningful because," as Olivito adds, 'it was the first case brought against the City of Steubenville with the background of the historical Steubenville DOJ consent decree still pending. Soon after this case was filed, the same original and often referenced consent decree, the nation's longest such decree in history of such police pattern and practice issues, was terminated by the Justice Department under former Attorney General Gonzales.
Again, Olivito states, "while we were confident of the case's merits and the original distirct court opinion and the efforts of Attorney James McNamara, who worked on the appellate briefing stage of this case, we were somewhat concerned in part, at the Sixth because of some of the putative very serious conservative leaning judicial officers of the Sixth Circuit who were to hear the oral argument."
"That worry proved to be completely misplaced and unfounded; if any such concerns existed prior to the case's arguments, on our side, one can only imagine our solid relief and mild surprise at the same very common but strong misperception of any such thing ever affecting this case's outcome afterwards."
Olivito continues, "In fact, we would like to see more judging --and there ought to be more such judicial concern expressed across the entire spectrum of the region's judiciary as the kind we witnessed at the oral arguments on this case, since it affirmed not only the centrality of the fundamental civil rights of every American citizen in this midwest bell weather region, but it also affirms the best of the american legal system itself."
"Such strong judicial reasoning restores confidence for plaintiffs within the law and to the notion simple fairness and due process of law both is alive and well at the Sixth Circuit.
This decision also demonstrates the strong judicial independence of the Sixth Circuit justices, so that this case clearly demonstrates that, if and when the right kind of unique facts present themselves inside a constitutional claim of this measure and proportion as the Thorne family case did, the nation's highest courts will not sit idly by and allow the constitutional violations of the citizens and individual as are contained in this case's record.
"We learned from this Sixth Circuit decision today that inside this particular Circuit, the fundamental Constitutional rights of the people, if properly framed, presented and developed during the important discovery phase of such a Section 1983 claim, will be both respected and completely protected...
Again, this is quite separate and distinct from oftentimes misperceived partisian political and/or economic special interests who may have contributed years ago to the appointment
of any one or group of the federal judiciary.
"This is exactly why when this kind of special litigation and law works, inside these appellate and district federal courts, these courts in combination with the powerful civil rights cases themselves, if properly done, often demonstrate the majesty of the real constitution, the Bill of Rights and the related Fourteenth Amendment provisions...
....its truly an experience of a life time for all involved to witness how such heavy excercises in this type of complex civil litigation can make at times, these fundamental documents of our nation shine the brightest....."
Steubenville on two Fourth Amendment related constitutional claims arising from a warrantless search of their residence and the resulting misdemeanor arrest of the Thorne teen aged son, thereby clearing the Thorne family civil rights police misconduct main excessive force case and these related constitutional claims against the city officers for remand and trial.
This decision represents a major legal victory for the plaintiffs and their lawyers. Noting that the opinion is an unpublished opinion, the sixth Circuit granted the plaintiffs a favorable decision in an extremely short period of time following the mid- September oral arguments on the case, which speaks of just how unamious and serious the Cincinnati federal Court of Appeals was quick to affirm the otherwise clearly detailed opinion of Judge Marbley in favor of the plaintiff's original pleadings and constitutional claims which were originally brought and prosecuted by attorney Richard Olivito on behalf of the Thorne family against the City of Steubenville and the two offending officers named as defendants in the federal lawsuit.
"This simply is an astounding and very strong but briefly stated appellate federal court opinion and one that has great impact on both this case and as important, all related issues which demonstrates the particular nuances and clear necessity that all potential civil rights litigants including cities and their police officers ought to pay very careful and serious attention to;
The federal three judge panel' ---a very conservative panel---quick willingness to decide a case on its merits in favor of the plaintiff civil rights litigant, well distinct and apart from any often perceived 'conservative' bias against such plaintiffs inside related civil rights constitutional claims when over zealous officers clearly violate well established fourth amendment standards and related laws," Olivito remarked.
"This case's outcome at the Sixth Circuit is so unique, so special and especially meaningful because," as Olivito adds, 'it was the first case brought against the City of Steubenville with the background of the historical Steubenville DOJ consent decree still pending. Soon after this case was filed, the same original and often referenced consent decree, the nation's longest such decree in history of such police pattern and practice issues, was terminated by the Justice Department under former Attorney General Gonzales.
Again, Olivito states, "while we were confident of the case's merits and the original distirct court opinion and the efforts of Attorney James McNamara, who worked on the appellate briefing stage of this case, we were somewhat concerned in part, at the Sixth because of some of the putative very serious conservative leaning judicial officers of the Sixth Circuit who were to hear the oral argument."
"That worry proved to be completely misplaced and unfounded; if any such concerns existed prior to the case's arguments, on our side, one can only imagine our solid relief and mild surprise at the same very common but strong misperception of any such thing ever affecting this case's outcome afterwards."
Olivito continues, "In fact, we would like to see more judging --and there ought to be more such judicial concern expressed across the entire spectrum of the region's judiciary as the kind we witnessed at the oral arguments on this case, since it affirmed not only the centrality of the fundamental civil rights of every American citizen in this midwest bell weather region, but it also affirms the best of the american legal system itself."
"Such strong judicial reasoning restores confidence for plaintiffs within the law and to the notion simple fairness and due process of law both is alive and well at the Sixth Circuit.
This decision also demonstrates the strong judicial independence of the Sixth Circuit justices, so that this case clearly demonstrates that, if and when the right kind of unique facts present themselves inside a constitutional claim of this measure and proportion as the Thorne family case did, the nation's highest courts will not sit idly by and allow the constitutional violations of the citizens and individual as are contained in this case's record.
"We learned from this Sixth Circuit decision today that inside this particular Circuit, the fundamental Constitutional rights of the people, if properly framed, presented and developed during the important discovery phase of such a Section 1983 claim, will be both respected and completely protected...
Again, this is quite separate and distinct from oftentimes misperceived partisian political and/or economic special interests who may have contributed years ago to the appointment
of any one or group of the federal judiciary.
"This is exactly why when this kind of special litigation and law works, inside these appellate and district federal courts, these courts in combination with the powerful civil rights cases themselves, if properly done, often demonstrate the majesty of the real constitution, the Bill of Rights and the related Fourteenth Amendment provisions...
....its truly an experience of a life time for all involved to witness how such heavy excercises in this type of complex civil litigation can make at times, these fundamental documents of our nation shine the brightest....."
Thursday, August 23, 2007
A Second Win for A Section 1983 Plaintiff Claim in Southern District of Ohio: Attorney Rich Olivito Takes A Victory Lap
A Second Section 1983 excessive force claim brought against the city of Steubenville and several police officers overcame summary judgment on behalf of Sean Scipio Sr. in March of this year. (2007)
Mr. Sean Scipio had been alleging false arrest and an excessive claim in connections with
a police arrest arising out of a odd set of circumstances occuring during the federal Dept
of Justice consent decree [See Consent Decree Link left box] when he went to the local Steubenville High School and attempted pick up his son after a disciplinary action.
When the senior Scipio was leaving the school, a set of police officers came up to him and
told him he was under arrest for striking his 16 year old son, in the head. Sean denied the charges and verbally stated he was not going along with them. Within a minute, he settled down and simply cooperated and then "allowed" the arresting officers to handcuff him.
When this occured, the officer responding to the original scene then walked away, without incident. After this, two other steubenville police then began to become forceful and over bearing against sean as they attempted to place him in a cruiser to take him to jail. Sean is a large size individual and was handcuffed behind his back and was unable to move freely and easily fit into the squad.
He became upset because of his inablity to enter the vehicle without significant risk of injury and repeatedly asked the officers if they could merely accommodate him and his size and escort him to the local jail. This was in the middle of the morning and sean has no criminal record whatsoever and has been a lifelong resident of the City of Steubenville.
The officers refused and while he was in handcuffs, simply maced him and then began to strike him behind the knee with a baton like object. The police deny striking him.
However, an eye witness, from within the high school, a high school senior has testified she saw the instrument and she saw the police striking sean behind the knees.
Sean's domestic violence charge was dismissed by the local municipal court after Sean retained significant criminal defense counsel and after a brief local independent mental health exam demonstrated he had no such problem whatsoever.
Sean treated for his injuries to his leg and back and knees.
After attempting unsuccessfully to find counsel to file a claim against the police, the Scipio's heard of Mr. Olivito's background from the Thorne case [see below] and contacted him and asked for his representation. Their case was filed in August of 2005 and was litigated throughout 2006.
The district court of Columbus Ohio held that because there are twin accounts and there are material differences, the police are not entitled to qualified immunity on the excessive force claim.
Originally, the court also held that Scipio had overcome the summary judgment motion of the city's defense on the false arrest claim also. However, less than two weeks later the same court then oddly reversed itself on this sole single false arrest claim.
Such a rare reversal by the same district court on an issue that just two weeks prior had itself found as a valid constitutional claim, citing strong factual recorded evidence, creates a strong basis for a later appeal on the same issue for the Sixth Circuit.
Nonetheless, the plaintiff's officer excessive force claim survived the motion to dismiss on summary judgment and the case now heads to trial later this year. It is presently scheduled for trial this November before the Southern District Court.
[The plaintiff as stated, had won the false arrest issues as well but had this ironically reversed in an highly unusual manner. This false arrest claim will be appealed by Sean after the underlying excessive force claim goes to trial. He is confident that he will prevail at the sixth circuit on what can be said to be a hypertechnical, if not, arcane "notice" pleading issue. ]
But in the meantime, this decision demonstrates two separate Section 1983 claims have survived strong large firm legal challenges on summary judgment grounds from the defendant's city efforts to quash and stop the litigation from moving forward at this juncture on two separate cases/cleints represented by Attorney Richard Olivito in 2005 and 2006.
This serious legal challenge and subsequent victory is particulary significant in so far the plaintiff's original lead attorney, Richard A. Olivito who not only investigated but plead and did most of the original discovery on these important constitutional federal claims, has been recently singled out for subsequent lawyer disciplinary action by the all republican State of Ohio Supreme Court officials, and a local bar association out of Youngstown, since bringing such federal claims both within Ohio and out of state within the past two years.
However, with these two southern federal district court significant but separate major case legal victories, the respective plaintiffs' cases will be now prepared for trial and /or for appeal to the Sixth Circuit by the defense on the Thorne case. [See Below]
Mr. Olivito now enjoys the distinction of being the only plaintiff's lead trial lawyer in Ohio who has successfully initiated such constitutional claims arising out of a city where the nation's historical DOJ civil rights division federal consent decree first went into effect in September, 1997 . These cases represent two critical federal police misconduct civil rights cases which have been litigated to this point inside the United States District Court's Southern District in Columbus, Ohio.
"I am very proud to have been a part of this signficant legal victory and effort on behalf of both of these very strong and courageous clients", says Mr. Olivito in view of the second significant federal court legal victory, coming on the heals immediately having won such a similar case just 60 days prior to the Scipio case decision being issued in march of 2007. [See blog post below re: Thorne Case.]
"We are looking forward to having the clients cases' heard in open court and allowing for the opportunity to have their constitutional right to a 'day in court' within such signficant
and complex litigation as any police misconduct cases are today."
Olivito adds, "I believe this also clearly settles any question that some seriously motived, inexperienced [in this field of law] official distractors are raising about my ability to function as a lawyer on behalf of litigants anywhere at any time in recent months and years.
Perhaps, even more important, it helps to put an important present tense coda on the years of effort and sacrifice that went into the creation of one of the nation's first DOJ pattern and practice consent decree's which we [James McNamara, Edward Skip Nixon ,Joyce Iott, myself, the DOJ, et. al] accomplished back in the Clinton administration for which many have paid an important heavy price...both then and now."
Mr. Sean Scipio had been alleging false arrest and an excessive claim in connections with
a police arrest arising out of a odd set of circumstances occuring during the federal Dept
of Justice consent decree [See Consent Decree Link left box] when he went to the local Steubenville High School and attempted pick up his son after a disciplinary action.
When the senior Scipio was leaving the school, a set of police officers came up to him and
told him he was under arrest for striking his 16 year old son, in the head. Sean denied the charges and verbally stated he was not going along with them. Within a minute, he settled down and simply cooperated and then "allowed" the arresting officers to handcuff him.
When this occured, the officer responding to the original scene then walked away, without incident. After this, two other steubenville police then began to become forceful and over bearing against sean as they attempted to place him in a cruiser to take him to jail. Sean is a large size individual and was handcuffed behind his back and was unable to move freely and easily fit into the squad.
He became upset because of his inablity to enter the vehicle without significant risk of injury and repeatedly asked the officers if they could merely accommodate him and his size and escort him to the local jail. This was in the middle of the morning and sean has no criminal record whatsoever and has been a lifelong resident of the City of Steubenville.
The officers refused and while he was in handcuffs, simply maced him and then began to strike him behind the knee with a baton like object. The police deny striking him.
However, an eye witness, from within the high school, a high school senior has testified she saw the instrument and she saw the police striking sean behind the knees.
Sean's domestic violence charge was dismissed by the local municipal court after Sean retained significant criminal defense counsel and after a brief local independent mental health exam demonstrated he had no such problem whatsoever.
Sean treated for his injuries to his leg and back and knees.
After attempting unsuccessfully to find counsel to file a claim against the police, the Scipio's heard of Mr. Olivito's background from the Thorne case [see below] and contacted him and asked for his representation. Their case was filed in August of 2005 and was litigated throughout 2006.
The district court of Columbus Ohio held that because there are twin accounts and there are material differences, the police are not entitled to qualified immunity on the excessive force claim.
Originally, the court also held that Scipio had overcome the summary judgment motion of the city's defense on the false arrest claim also. However, less than two weeks later the same court then oddly reversed itself on this sole single false arrest claim.
Such a rare reversal by the same district court on an issue that just two weeks prior had itself found as a valid constitutional claim, citing strong factual recorded evidence, creates a strong basis for a later appeal on the same issue for the Sixth Circuit.
Nonetheless, the plaintiff's officer excessive force claim survived the motion to dismiss on summary judgment and the case now heads to trial later this year. It is presently scheduled for trial this November before the Southern District Court.
[The plaintiff as stated, had won the false arrest issues as well but had this ironically reversed in an highly unusual manner. This false arrest claim will be appealed by Sean after the underlying excessive force claim goes to trial. He is confident that he will prevail at the sixth circuit on what can be said to be a hypertechnical, if not, arcane "notice" pleading issue. ]
But in the meantime, this decision demonstrates two separate Section 1983 claims have survived strong large firm legal challenges on summary judgment grounds from the defendant's city efforts to quash and stop the litigation from moving forward at this juncture on two separate cases/cleints represented by Attorney Richard Olivito in 2005 and 2006.
This serious legal challenge and subsequent victory is particulary significant in so far the plaintiff's original lead attorney, Richard A. Olivito who not only investigated but plead and did most of the original discovery on these important constitutional federal claims, has been recently singled out for subsequent lawyer disciplinary action by the all republican State of Ohio Supreme Court officials, and a local bar association out of Youngstown, since bringing such federal claims both within Ohio and out of state within the past two years.
However, with these two southern federal district court significant but separate major case legal victories, the respective plaintiffs' cases will be now prepared for trial and /or for appeal to the Sixth Circuit by the defense on the Thorne case. [See Below]
Mr. Olivito now enjoys the distinction of being the only plaintiff's lead trial lawyer in Ohio who has successfully initiated such constitutional claims arising out of a city where the nation's historical DOJ civil rights division federal consent decree first went into effect in September, 1997 . These cases represent two critical federal police misconduct civil rights cases which have been litigated to this point inside the United States District Court's Southern District in Columbus, Ohio.
"I am very proud to have been a part of this signficant legal victory and effort on behalf of both of these very strong and courageous clients", says Mr. Olivito in view of the second significant federal court legal victory, coming on the heals immediately having won such a similar case just 60 days prior to the Scipio case decision being issued in march of 2007. [See blog post below re: Thorne Case.]
"We are looking forward to having the clients cases' heard in open court and allowing for the opportunity to have their constitutional right to a 'day in court' within such signficant
and complex litigation as any police misconduct cases are today."
Olivito adds, "I believe this also clearly settles any question that some seriously motived, inexperienced [in this field of law] official distractors are raising about my ability to function as a lawyer on behalf of litigants anywhere at any time in recent months and years.
Perhaps, even more important, it helps to put an important present tense coda on the years of effort and sacrifice that went into the creation of one of the nation's first DOJ pattern and practice consent decree's which we [James McNamara, Edward Skip Nixon ,Joyce Iott, myself, the DOJ, et. al] accomplished back in the Clinton administration for which many have paid an important heavy price...both then and now."
Subscribe to:
Posts (Atom)
Posts
