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."

Olivito Wins Once Again in the Southern District of Ohio

After nearly a decade and the first fully investigated nationally recognized DOJ consent
decree later, [see Consent Decree link @ left box] attorney richard olivito took a case from Steubenville, Ohio, his ground zero with the issue of police and prosecutor misconduct.

In doing so, this case, Dan Thorne Jr. vs. John Lelles, et. al. was the first federal
case filed in 2005 in Columbus' southern district court. It was Attorney Olivito's 'return'
case to the very ground zero of his initial groundbreaking work on police misconduct
inside his hometown where his father was a highly respected veteran senior trial judge.

Judge Marbley was assigned to hear the case and the case proceeded thru
an almost two period where the parties litigated the case intensely thru

In December of 2006, Judge Marbley issued his opinion on the summary judgment
motion that the city had filed against the plaintiffs seeking to obtain a complete
dismissal of this lawsuit on federal legal grounds which provide official immunity
for defendants in such cases.

As a result of the ruling, the plaintiff came out a clear winner, by wining both of the
excessive force claims and the false arrest claims which were first plead and then developed by Attorney Richard A. Olivito.

The judge wrote a 36 page opinion in this ruling, at the district court level, somewhat
unusual in the sense most of these types of rulings do not extend beyond 15 or 20 pages.

Most of the opinion, which is a published opinion and can be found on lexis , is clearly and strongly worded in the plaintiff's favor over and against that of the defendants and their Columbus insurance defense counsel, Maznec, Raskin and Ryder.

This case represents the strongest indication to date, that Attorney Richard A. Olivito
has done recent solid legal work for his clients and despite many false and misleading comments posted on the net and in public about his work by those in high places who oppose him and his
legal advocacy for those who have been clearly abused by their local police and governments.

Nonetheless, Judge Algenon Marbley's opinion clearly supports Richard Olivito's arguments and briefing on the official immunity claims and also pays a tribute to his hard fought efforts by listing his name on the published opinion of the Southern District Court of Ohio.

It is clearly a victory for the Thorne family and the historical efforts of Mr. Olivito in bringing to light serious police and human rights violations which are occuring right inside of Southern Ohio again it appears.

The case has been partially appealed by Maznec and the City of Steubenville, but ONLY on the false arrest claim. Experienced Columbus civil rights Attorney James McNamara who is now on the case, has written the appeals briefs and within his own public, various in court statements has clearly given credit to the hard work and detemination of Mr. Olivito in getting the case to the point it is today, before the both the U.S. Southern District Court and before the Sixth Circuit, in Cincinnati.

The case will heard on oral argument on September 14, 2007 in Cincinnati, at the Sixth Circuit
Court of Appeals on the false arrest claim appeal filed by the City in light of the clear win afforded to both the Thorne family plaintiffs and for Mr. Olivito as their original lead counsel

The exceesive force claim was NOT appealed by the City and thus, this claim was basically "admitted" or "acknowledged" by the city as not only being a valid one, but one of a constitutional level violation which needs to be either settled or further litigated into trial. By NOT appealing this issue, at this stage, the City clearly demonstrated the validity of both the lawsuit, and the truth behind the excessive force claim which the family brought with the sole legal assistance and professional acumen of Attorney Richard A. Olivito.

The results are to follow here, once this case concludes later this year. This was the second major civil rights case Mr. Olivito has won before the southern district of columbus; the first
Hython v. City of Steubenville et. al. including Raymond Terry and Steve Stern, helped to set the stage for one of the most important consent decrees in U.S. History, a case over a decade old but still causing an impact in the region and upon the way policing is performed in this southeastern Ohio region.

This article is placed here with the aim to counter some of more blatant false light descriptions of Mr. Olivito's law practice and professional constitrubtions to both citizens of Ohio and elsewhere and to his clients, and to the profession and communities he worked within, itself.

Prologue: Update on the Efforts of the Disciplinary Counsel of the Ohio Supreme Court: Taped Conversations reveal illegal and highly unethical conduct between high ranking Supreme Court lawyers and their "inside" highly placed republican friends regarding the person of Attorney Richard A. Olivito {This will be subjected to further blogging here and on related site links see link to 'Supreme Lies'}

What also is interesting, is the Ohio Supreme Court's disciplinary counsel Lori Brown and its investigators within 30 days after this opinion was written, committed a highly unethical if not illegal act by performing an ex parte communication with a judicial officer inside an official proceeding in which Ms. Brown, the ODC first assitant prosecutor and the former panel chair, a corporate insurance defense counsel and key republican party and close friend of Tom Moyer's together conspired to seek to have Mr. Olivito submit to a 'mentally evaluation' by judicial fiat, without any medical basis to do so, just on Ms. Brown's own determination and whims...

This move against Mr. Olivito was brought on the basis that Mr. Olivito was
supposedly, "not able to function as a lawyer" as per the Supreme Court's Ms. Brown and her numerous republican and large firm allies inside their twisted and distorted disciplinary attack on

This bizarre allegation was brought against him in early 2007, within one month immediately after the United State's Southern District of Ohio Thorne opinion was formally published by Judge Marbley of the United States Southern District Court in Columbus, Ohio granting Olivito's clients a clear legal victory on this complex federal civil rights claims.

This very opinion clearly indicates, contra those at the Ohio Supreme Court's disciplinary office, working for an all republican supreme court, that Mr. Olivito is not only competent to manage and achieve a very serious victory over great odds for his civil rights clients, from within a very rarified enviroment but that he is also very capable of doing the kind of serious litigation that most lawyers in a solo practice would not even begin to attempt; much less succeed within;

[As indicated on the record and above, Attorney McNamara acknowledged Mr. Olivito did all of the initial heavy work on the Thorne case; investigating the claim, creating and filing the pleadings, doing all the discovery and then did all of the heavy lifting in written and deposition phases of the case on up to the initial critical briefing of the serious legal issues on summary judgment implicated in this Section1983 litigation case; once again, taking on considerable burderns and related risks just in doing the same again in a case arising out of his hometown area, Steubenville. ]

For his legal career, this was yet another case which simply once again, demonstrated his unique ability and committment to the fundamental civil rights of every individual american citizen, white or black or yellow or red.

Olivito's ability to create the type of litigation which results in serious favorable consequences inside the federal courts of the United States [both in Ohio and elsewhere] is clearly both supported and demonstrated, and contra to a few opinions published on google and those done in a very falsely derived and extremely infirm, if not, false light, if not wholly defamatory conclusory manner drawn by the current heavily insurance driven Ohio Supreme Court
and its "official findings and records".

{See Supreme Lies link here inside the link box for the New York Times 10/1/06 article on the Ohio Supreme Court and its Serious Major Donor Money Trail and Ohio Municipal chamber of commerce and major insurer's Donors who put this present Supreme Court's campaign funding together like it was a jigsaw puzzle]

Mr. Richard Olivito's work remains unique, to those who are famililar with the same and in this decades old tradition, inside the Thorne case, by doing the courageous thing and taking a case many declined and did not wish to touch, even where a federal consent decree had been in existence for over 7 years, we [the Thorne family, & particularly Dan Sr. ] were making the concept of american human rights and the ideal of freedom for all mean something other than nice a historical sentiment and empty phrase inside America's important jurisprudence, right here in the heart of it all.

Olivito says of this important case:

"Without any kind of the funds or resources that these stubborn officials have had at their finger tips to both oppose my efforts and that of my client's cases, both at the supreme court -ODC- office investigation level and/or at the litigation site of large municipal insurer defense law firms and their deep pocket city clients, with this win, we have overcome...."

he also adds, "Dan Thorne Sr. is also to be given strong recognition here for his critical ability, insight and action taken early in defending his son's civil rights, as well as his courageous standing up for his family and for 'simply' enduring some of the most intense kind of litigation possible today in America."

Dan now understands just how complex and how difficult it is for an American citizen to vindicate his important fundamental Bill of Rights based constitutional claims inside a federal court of law today in America in Ohio.

Together, the plaintiffs and their counsel have already overcome...despite the next moves by either the city of Steubenville, their lawyers, and/or the ODC Supreme Court. The public awaits this case's important outcome despite the best efforts of the insurance industry's and their corporate lawyers corrupt ties to the present state system of judicial elections.

The influence peddling inside the State of Ohio's ODC lawyer disciplinary office is obviously a problem in this state.

Yet, this case, demonstrates that even when a lawyer and his modest clients are willing to go up against very heavy monetary and political odds and influences, the individual with the right case, can, if willing to suffer and endure much, still make a difference in enforcing his contitutional rights inside the USA today.