Thursday, December 4, 2008

Sixth Circuit Again Turns Down Several Defense Procedural Motions to Dismiss or Deny Scipio's Appeal

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.

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

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.