Washington v. Community Services Real Estate, LLC et al

Filing 18

REPORT AND RECOMMENDATIONS - Plaintiff's Motion for Summary Judgment 17 should be denied. Objections to R&R due by 5/23/2022. Signed by Magistrate Judge Michael R. Merz on 5/6/2022. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 3:21-cv-00268-TMR-MRM Doc #: 18 Filed: 05/09/22 Page: 1 of 4 PAGEID #: 92

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES E. WASHINGTON,
Plaintiff,

:

- vs -

Case No. 3-21-cv-268
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

COMMUNITY SERVICES REAL
ESTATE, LLC., et al.,
:
Defendants.

REPORT AND RECOMMENDATION

This civil action, brought pro se by Plaintiff James E. Washington under The Klu Klux
Klan Act of 1871, is before the Court on Plaintiff’s Motion for Summary Judgment (ECF No. 17).
A motion for summary judgment is classified as dispositive by Fed.R.Civ.P. 72 and thus requires
a recommended disposition by an assigned Magistrate Judge.
Fed.R.Civ.P. 56 provides in pertinent part
(a) Motion for Summary Judgment or Partial Summary Judgment.
A party may move for summary judgment, identifying each claim
or defense — or the part of each claim or defense — on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter
of law. The court should state on the record the reasons for granting
or denying the motion.

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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 as to
any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56. On a motion for summary judgment, the movant has the burden of showing that there exists
no genuine issue of material fact, and the evidence, together with all inferences that can reasonably
be drawn therefrom, must be read in the light most favorable to the party opposing the motion.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970); Bethel v. Jenkins, 988 F.3d 931*9-10
(6th Cir. 2021), citing Rafferty v. Trumbull County, 915 F.3d 1087, 1093 (6th Cir. 2019). All
reasonable inferences will be drawn in favor of the non-moving party. Bethel, citing Mutchler v.
Dunlap Mem'l Hosp., 485 F.3d 854, 857 (6th Cir. 2007). Nevertheless, "the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (emphasis in original). Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive
determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move
for summary judgment asserting that the opposing party will not be able to produce sufficient
evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a
matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.
1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he
or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The
opposing party must "do more than simply show that there is some metaphysical doubt as to the

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material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted." Liberty Lobby, 477 U.S. at 249-250 (citations omitted). "The mere possibility of
a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th

Cir.

1992),quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986). Therefore a court
must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's
evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F.3d 795 (6th
Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying
facts ... must be viewed in the light most favorable to the party opposing the motion." United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Thus, "the judge's function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial." Liberty Lobby, 477 U.S. at 249.
The moving party
[A]lways bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," which it
believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (citation
omitted). The party bringing the summary judgment motion has the initial burden of informing
the district court of the basis for its motion and identifying portions of the record that demonstrate
the absence of a genuine dispute over material facts. Alexander v. Caresource, 576 F.3d 551 (6th
Cir. 2009), citing Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d
845, 848 (6th Cir. 2002). If the moving party meets this burden, the nonmoving party must go

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beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587;
Martin v. Ohio Turnpike Comm'n., 968 F.2d 606 (6th Cir. 1992).
Upon examination, Plaintiff’s summary judgment motion is completely unsupported by
reference to any admissible evidence of record. Moreover, it contains assertions of fact which are
untrue: Defendant Community Services is not in default but has answered the Complaint (ECF
No. 14); Defendant Latria Robison has not yet been served with process and thus cannot be in
default.1
A motion for summary judgment must be supported by admissible evidence, and no
evidence at all has been submitted in support of this Motion. Plaintiff’s Motion for Summary
Judgment should therefore be denied.

May 6, 2022.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal.

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Alternatively, it may be the case that Defendant Robinson has been served and the Marshal has not yet filed proof
of service.

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