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Olivier v. Hicks

United States District Court, M.D. Tennessee, Nashville Division

May 14, 2018

MARDOCHE OLIVIER, Plaintiff,
v.
ROSS H. HICKS, CITY OF CLARKSVILLE, and LEIGH BLACK, Defendants.

          Crenshaw, Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE

         I. Introduction and Background

         This matter is before the Court upon a Motion for Summary Judgment filed by Defendant City of Clarksville. Docket No. 12. The City of Clarksville has also filed a Supporting Memorandum of Law and a Statement of Undisputed Material Facts. Docket Nos. 13, 14. The pro se Plaintiff, Mardoche Olivier, has not filed a response.

         Mr. Olivier filed this action against Judge Ross H. Hicks, the City of Clarksville, and Leigh Black on September 22, 1017, alleging violations of 42 U.S.C. §§ 1981, 1982, and 1983 related to the alleged seizure of Mr. Oliver's property. Docket No. 1. Mr. Olivier contends that the City of Clarksville used its power of eminent domain to take possession of eight cars and two trailers belonging to him, and later allowed Defendant Leigh Black, owner of Transport Auto, to sell them. Id. at 2-4. He further contends that when he subsequently filed an action to recover personal property under Tenn. Code Ann. § 29-30-104, Judge Hicks denied his petition for a hearing, telling him that he “must first pay a bond the value of [his] property of 250, 000.” Id. at 4.

         In its initial review pursuant to 28 U.S.C. § 1915(e)(2), the Court (Judge Crenshaw) found that Mr. Olivier's Complaint failed to state a claim under either 42 U.S.C. § 1981 or § 1982, and thus dismissed those claims. Docket No. 3, p. 3-4. The Court further held that all claims against Judge Hicks are subject to dismissal because of his absolute judicial immunity. Id. at 4. The Court allowed Mr. Olivier's § 1983 claim against the City of Clarksville to proceed, finding that “Plaintiff's allegations, if true, suggest that the City of Clarksville countenanced the taking of Plaintiff's property solely for the purpose of transferring it to another private party, without just compensation and without the prospect of future use by the public.” Id. at 5 (internal quotation marks and citation omitted). The Court also maintained the § 1983 claim against Defendant Black, finding that the allegations in the Complaint, “accepted as true and viewed in the light most favorable to Plaintiff, are sufficient to establish that Black acted under color of state law or that his conduct was otherwise chargeable to the state.” Id. at 6-7.

         II. Law and Analysis

         A. Motions for Summary Judgment

         Under Fed.R.Civ.P. 56(a), summary judgment is appropriate only “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 party bringing the motion has the burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute of material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the nonmoving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id. A dispute is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).

         In deciding a motion for summary judgment, the Court must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986); Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249. The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to allow the nonmoving party's claims to survive summary judgment; rather, the nonmoving party must convince the Court that there is sufficient evidence for a juror to return a verdict in its favor. Id.

         “Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937 (2009) (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Further, “a Court cannot create a claim which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011). See also Payne v. Sec'y of Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's claim for her.”

         B. Local Rules 7.01(b) and 56.01(c) and (g)

         Local Rule 7.01(b) states, in pertinent part:

b. Response. Each party opposing a motion shall serve and file a response, memorandum, affidavits and other responsive material not later than fourteen (14) days after service of the motion, except, that in cases of a motion for summary judgment, that time shall be twenty-one (21) days after the service of the motion, unless otherwise ordered by the Court. Failure to file a timely response shall indicate that there is no opposition to the motion.

         The City of Clarksville filed the instant Motion on February 20, 2018. Docket No. 12. Mr. Olivier has failed to respond to the City of Clarksville's Motion.

         Additionally, with respect to Motions for Summary Judgment specifically, Local Rules 56.01(c) and (g) state, in pertinent part:

c. Response to Statement of Facts. Any party opposing the motion for summary judgment must respond to each fact set forth by the movant by either (i) agreeing that the fact is undisputed; (ii) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by a citation to the record . . . .
g. Failure to Respond. Failure to respond to a moving party's statement of material facts, or a non-moving party's statement of additional facts, within the time periods provided by these Rules shall indicate that the asserted facts are not disputed for the purposes of summary judgment.

         Mr. Olivier has failed to respond to the City of Clarksville's Statement of Undisputed Material Facts or to file his own Statement of Undisputed Material Facts. Pursuant to Local Rule 56.01(g), Mr. Olivier's failure to respond indicates “that the asserted facts are not disputed for the purposes of summary judgment.” Accordingly, there are no genuine issues as to any material fact, and all that remains to be determined is whether the City of Clarksville is entitled to a judgment as a matter of law.

         It would be inappropriate to grant the City of Clarksville's Motion solely on the ground that Mr. Olivier has failed to respond. See Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir. 1998). As the Court of Appeals for the Sixth Circuit has stated:

[A] district court cannot grant summary judgment in favor of the movant simply because the adverse party has not responded. The Court is required, at a minimum, to examine the movant's Motion for Summary Judgment to ensure that he has discharged [his initial] burden . . . . The federal rules require that the party filing a Motion for Summary Judgment “always ...

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