Whiteside v. Collins et al

Filing 177

OPINION AND ORDER Plaintiffs Motion for Order to Show Cause, Doc. No. 153 , is DENIED. Plaintiff is ORDERED to respond to defendants motion for summary judgment, Doc. No. 157 , no later than July 9, 2012. Defendants shall repl y, if at all, no later than July 18, 2012. Plaintiff has recently expressed an intention to file a motion for summary judgment. Doc. Nos. 153 , 158 , 168 . If plaintiff intends to file such a motion, he must do so no later than July 16, 2012. Defendant response to summary judgment due 7/30/12. Signed by Magistrate Judge Norah McCann King on 6/25/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NORMAN V. WHITESIDE,
Plaintiff,
vs.

Civil Action 2:08-CV-875
Judge Graham
Magistrate Judge King

TERRY COLLINS, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, who is currently incarcerated at the Warren
Correctional Institution (“WCI”), previously filed a Motion for Order
to Show Cause, Doc. No. 153 (“Motion for Order to Show Cause”),
representing that defendants “and or their agents” at WCI “are
unlawfully withholding Plaintiff’s mail which contains, inter alia,
declarations he needs to effectively prosecute his case.”

Id. at 1.

Plaintiff further represented that WCI staff or “Defendants’ agents”
retaliated against plaintiff by searching his cell on March 28, 2012,
and, inter alia, confiscating certain materials.

Doc. No. 158, pp. 1-

3.
On May 18, 2012, after the Motion for Order to Show Cause was
fully briefed, this Court concluded that plaintiff’s request as it
related to a declaration signed by inmate Michael Johnson and his
request for an order as to documents, issues and claims unrelated to
his ability to oppose defendants’ motion for summary judgment or to
the filing of his own motion for summary judgment were without merit.

Opinion and Order, Doc. No. 164, pp. 5-6.

The Court directed

plaintiff “to identify under oath as specifically as possible, i.e.,
by description, date, author, etc., any and all documents that are
necessary to oppose defendants’ motion for summary judgment and/or
necessary to file his own motion for summary judgment that are being
withheld by defendants.”

Id. at 6 (emphasis in original).

The Court

ordered that “the named defendants. . . [thereafter] respond, under
penalty of perjury, indicating whether or not the named defendants
have withheld such documents and, if so, to explain the basis for
withholding them.”

Id. (emphasis in original).

On May 31, 2012, plaintiff responded to the Opinion and Order,
identifying, under oath, three categories of documents: (1) a
declaration sent by William Rankin to plaintiff in or around September
2011; (2) various documents from inmate Gudonovan Taylor; and (3) a
declaration signed by Stephan Howard.

Doc. No. 168, pp. 1-3.

In response, defendants offered the unsworn declarations of the
remaining named defendants.

See Declaration of Terry Collins, Doc.

No. 174-1 (“Collins Declaration”), Declaration of Trevor Clark, Doc.
No. 174-2 (“Clark Declaration”), Declaration of Alan Lazaroff, Doc.
No. 174–3 (“Lazaroff Declaration”), Declaration of Melody Haskins,
Doc. No. 174-4 (“Haskins Declaration”), Declaration of Virginia
Workman, 174-5 (“Workman Declaration”), Declaration of Deborah
Lambert, Doc. No. 174-6 (“Lambert Declaration”), Declaration of Julius
Willingham, Doc. No. 174-7 (“Willingham Declaration”), Declaration of
Brian Terrill, Doc. No. 174-8 (“Terrill Declaration”), Declaration of
Steve Perry, Doc. No. 174-9 (“Perry Declaration”), Declaration of Marc

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Stanley, Doc. No. 174-10 (“Stanley Declaration”), and Declaration of
Jimmy Gossard, Doc. No. 174-11 (“Gossard Declaration”).1

Defendants

aver that they do not possess nor have they confiscated from plaintiff
any of the documents he identifies in Doc. No. 168, i.e., a
declaration from Mr. Rankin, various documents from Mr. Taylor and/or
a declaration signed by Mr. Howard.

See Collins Declaration, ¶ 4;

Clark Declaration, ¶ 4; Lazaroff Declaration, ¶ 4; Haskins
Declaration, ¶ 4; Workman Declaration, ¶ 4;

Lambert Declaration, ¶ 4;

Willingham Declaration, ¶ 4; Terrill Declaration, ¶ 4; Perry
Declaration, ¶ 4; Stanley Declaration, ¶ 4; Gossard Declaration, ¶ 3.
Based on this record, there is no evidence establishing that
defendants are withholding information that plaintiff identifies as
necessary to oppose defendants’ motion for summary judgment and/or to
support his own motion for summary judgment that he represents that he
plans to file.
WHEREUPON, plaintiff’s Motion for Order to Show Cause, Doc. No.
153, is DENIED.

Plaintiff is ORDERED to respond to defendants’ motion

for summary judgment, Doc. No. 157, no later than July 9, 2012.
Defendants shall reply, if at all, no later than July 18, 2012.
Plaintiff has recently expressed an intention to file a motion
for summary judgment.

Doc. Nos. 153, 158, 168.

If plaintiff intends

to file such a motion, he must do so no later than July 16, 2012.

1

If

Defendants initially offered the declaration of Marty E. Jones, a
lieutenant and supervisor of the mail room at WCI. Declaration of Marty E.
Jones, ¶ 2 (“Jones Declaration”), attached as Exhibit A to Doc. No. 169. The
Court noted that, although helpful, this declaration was not in strict
compliance with the Court’s order that the named defendants respond under
penalty of perjury. Order, Doc. No. 170. Defendants’ declarations followed.
Doc. No. 174.

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plaintiff files a motion for summary judgment, defendants’ response,
if any, is due no later than July 30, 2012.

Plaintiff shall reply, if

at all, within rule.
Finally, plaintiff is REMINDED that Rule 56 of the Federal Rules
of Civil Procedure provides as follows:
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c).

This means that the facts stated in the

declarations or other papers submitted in support of the defendants’
motion will be accepted as true by the Court unless plaintiff submits
other evidence showing that there is a genuine conflict of fact.

If

plaintiff has personal knowledge of facts that are different from
those set out in defendants’ supporting documents, he should submit an
affidavit2 stating those contrary facts.

He should also submit the

affidavits of such other persons having knowledge of the facts and any
documents he has relating to the facts.

2

The affidavit need not be notarized. It is sufficient if the affiant
makes an unsworn declaration under penalty of perjury in the following form:
"I declare (or certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is true and correct.
Executed on (date). (Signature)”. See 28 U.S.C. § 1746.

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June 25, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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