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."