The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL D. BROWN, Case No. 1:22-cv-239
Plaintiff, Marbley, C.J.
Litkovitz, M.J.
v.
ORDER AND REPORT
LINNEA MAHLMAN, et al., AND RECOMMENDATION
Defendants.
Plaintiff Michael D. Brown initiated this civil rights action under 42 U.S.C. § 1983
challenging various aspects of his incarceration at the Southern Ohio Correctional Facility
(SOCF). This matter is before the Court on plaintiff’s motion for summary judgment (Doc. 37)
and motion for disposition (Doc. 38). Defendants have not responded to either motion.
I. Background
Brown, proceeding without the assistance of counsel, filed a complaint, a supplemental
complaint, and a combined complaint in this case (Docs. 4, 8, and 11). For varying reasons, the
claims against all defendants have been dismissed, except for Brown’s excessive force claim
against corrections officer Jewell and his retaliation claim against corrections officer Deemer.
(Doc. 22).
Brown then moved for summary judgment (Doc. 23). The Court determined that Brown
had failed to offer sufficient evidence to warrant summary judgment and recommended that
plaintiff’s motion for summary judgment (Doc. 23) be denied. (Doc. 30). Plaintiff filed
objections (Doc. 31) to the Court’s Report and Recommendation, but those objections have not
yet been resolved by the district judge.
On April 24, 2023, Brown mailed to the Clerk of Courts a document entitled “ReMotion
for Summary Judgment” (Doc. 37) which the Clerk docketed as a motion for summary judgment.
Plaintiff’s motion states in its entirety:
I, Michael Brown, acting pro se file (refile) this motion for summary judgment due
to after my objection an extension of time was granted to the defence [sic] . . . I
humbley [sic] ask the court that my objections (Doc. #31) be the memorandum of
facts for this re filing – I don’t have a copy to send –
(Doc. 37 at PAGEID 520). The extension to which Brown refers requested only that the
discovery deadline be extended until April 13, 2023 and the dispositive motion deadline be
extended until May 13, 2023. (Doc. 34). The Court notationally granted the extension
requested. (Doc. 35).
On May 8, 2023, Brown filed a document entitled “Motion for Disposition” (Doc. 38).
The motion for disposition requests that the Court ask defendants a series of specific questions
related to the underlying facts in this case. (Doc. 38 at PAGEID 525 and 527).
II. Summary Judgment Standard
A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of
summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Satterfield v.
Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all
inferences drawn therefrom, in the light most favorable to the non-moving party. Id.; Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v.
OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).
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The trial judge’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
249. The trial court need not search the entire record for material issues of fact, Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
“Where the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587.
“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S.
372, 380 (2007). However, “[f]acts that are not blatantly contradicted by [the evidence] remain
entitled to an interpretation most favorable to the non-moving party.” Coble v. City of White
House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011). “In response to a properly supported summary
judgment motion, the non-moving party ‘is required to present some significant probative
evidence which makes it necessary to resolve the parties’ differing versions of the dispute at
trial.” Maston v. Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio
2011) (quoting Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).
A fact is “material” if its resolution will affect the outcome of the lawsuit. Beans v. City
of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff’d, No.
17-3088, 2017 WL 3726755 (6th Cir. 2017) (citing Anderson, 477 U.S. at 248). The party who
seeks summary judgment “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
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the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322. To make its
determination, the court “need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The party opposing a properly supported
motion for summary judgment “may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”
First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288 (1968).
Because plaintiff is a pro se litigant, his filings are liberally construed. Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Spotts v. United States, 429 F.3d 248, 250 (6th Cir.
2005). However, a party’s status as a pro se litigant does not alter the party’s duty on a summary
judgment motion to support his factual assertions with admissible evidence. Maston, 832 F.
Supp. 2d at 851-52 (citing Viergutz v. Lucent Techs., Inc., 375 F. App’x 482, 485 (6th Cir.
2010)).
III. Plaintiff’s Motion for Summary Judgment (Doc. 37) Should Be Denied at this Time
Plaintiff’s motion for summary judgment (Doc. 37) appears to be merely a request that
the District Court grant his earlier motion for summary judgment (Doc. 23). For the same
reasons that the Court recommended denying the previous motion for summary judgment, the
Court recommends that the (re)motion for summary judgment be denied. (Doc. 30).
IV. Plaintiff’s Motion for Disposition (Doc. 38) Should Be Denied at this Time
Plaintiff’s motion for disposition (Doc. 38) seeks discovery from defendants. The Court
is unable to discern whether plaintiff’s motion contains his interrogatories (formal questions put
to an opposing party to be answered under oath for use in litigation) or is intended to be a motion
to compel defendants to answer interrogatories previously served on them. Either way, the
motion for disposition must be denied at this time.
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Pursuant to Rules 26 and 33, a party may ask up to 25 questions “regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . ." Fed. R. Civ. P. 33(a)
and Fed. R. Civ. P. 26(b)(1). Such questions are called “interrogatories” and must be served on
defendants’ counsel rather than submitted to the Court. Fed. R. Civ. P. 33(a)(1).
If, however, Brown has already served the interrogatories on defendants’ counsel, and he
intends his “motion for disposition” as a motion to compel, he has failed to satisfy Federal Rule
of Civil Procedure and S.D. Ohio Civil Rule 37.1. Pursuant to Fed. R. Civ. P. 37, motions to
compel discovery must include a certification that extrajudicial attempts have been made to
secure responses to discovery requests. Rule 37(a)(1) provides, in relevant part:
On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that
the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court
action.
Fed. R. Civ. P. 37(a)(1) (emphasis added). Similarly, S.D. Ohio Civ. R. 37.1 provides that
motions relating to discovery “shall not be filed in this Court under any provision in Fed. R. Civ.
P. 26 or 37 unless the parties have first exhausted among themselves all extrajudicial means for
resolving their differences.”
There is no indication from plaintiff’s motion that he first served his discovery requests
on defendants’ counsel, that defendants refused to comply with such requests, or that the parties
attempted to resolve any dispute prior to filing the motion. Before plaintiff may file a motion
seeking to compel discovery, he must contact defendants’ counsel to attempt to resolve the
disputed discovery items. Plaintiff must make at least one good faith attempt to resolve
discovery disputes with defendants’ counsel (such as writing a letter to defendants’ counsel) after
he fails to receive an initial response to his discovery requests. Plaintiff must include in any
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motion to compel discovery a certification setting forth the efforts he took to resolve the dispute
before filing a motion.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff's motion for summary judgment (Doc. 37) be DENIED.
IT IS THEREFORE ORDERED THAT:
Plaintiff's motion for disposition (Doc. 38) is DENIED.
Date: 5/12/2023 Henn Ki Rethor2
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL BROWN, Case No. 1:22-cv-239
Plaintiff,
Marbley, C.J.
vs. Litkovitz, M.J.
LINEA MAHLMAN, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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