Schorn v. Switalski

897 F. Supp. 339, 1995 U.S. Dist. LEXIS 13723, 1995 WL 552059
CourtDistrict Court, E.D. Michigan
DecidedSeptember 6, 1995
DocketCiv. A. No. 94-74585
StatusPublished

This text of 897 F. Supp. 339 (Schorn v. Switalski) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schorn v. Switalski, 897 F. Supp. 339, 1995 U.S. Dist. LEXIS 13723, 1995 WL 552059 (E.D. Mich. 1995).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT SWITAL-SKI’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

GADOLA, District Judge.

Plaintiff Schorn filed this action against defendant Judge Mark Switalski and John Doe and/or Jane Roe alleging that defendants violated plaintiffs First, Fifth and Fourteenth Amendment rights.1 Before the court is Judge Switalski’s motion for summary judgment. Also before the court is plaintiffs motion for sanctions and to strike portions of defendant’s brief in support of motion for summary judgment. Pursuant to Local Rule 7.1(e)(2) (E.D.Mich. Jan. 1,1992), the court shall decide the motions -without entertaining oral argument. For the reasons discussed below, the court will grant Judge Switalski’s motion and deny plaintiff Schorn’s motion.

I. Facts

On May 18, 1994, plaintiff was sentenced by the 39th District Court, Visiting Judge Garian, for telephone harassment. The sentence included one year of probation, 30 days of community service, and $500.00 in fines and costs. Under Michigan Court Rule [340]*3407.101(B)(1)(a), plaintiff has 21 days to appeal as of right.

On May 28, 1994, plaintiff wrote to Ms. Edye LaBarge, a secretary and court recorder with the 39th District Court, requesting a copy of the transcript of the sentencing hearing and copies of the cassette tapes of the trial. Ms. LaBarge responded on June 3, 1994 by advising plaintiff that she had forwarded his transcript request to the court recorder. Ms. LaBarge also informed plaintiff that the court rules do not provide for supplying copies of the original tapes.

On June 9, 1994, plaintiff again wrote to Ms. LaBarge renewing his request for the trial cassette tapes. Ms. LaBarge responded on June 20, 1994 again informing plaintiff that it was not the policy of the 39th District Court to provide copies of the taped proceedings.

On July 13, 1994, plaintiff filed a claim of appeal with the Macomb County Circuit Court Clerk’s office. In his letter accompanying his appeal papers, plaintiff stated that he “was never informed, at the trial court level of any right of appeal.” He also stated that he did not know that he could appeal his conviction. On July 18, 1994, the Macomb County Circuit Court Clerk returned plaintiffs appeal papers advising that plaintiff must comply with Michigan Court Rule 7.103. According to plaintiffs complaint, on July 18, 1994, plaintiff wrote to the Clerk of the 39th District Court requesting copies of the trial transcript, appointment of appellate counsel, and copies of the court’s entire file. Plaintiff stated that he had not been informed of his appellate rights at sentencing and could not afford the transcript or appellate counsel.

On September 21, 1994, Judge Switalski, the Chief Judge of the 39th Judicial District Court in the State of Michigan, wrote to the plaintiff and advised plaintiff that if he wished appointed counsel, transcripts and waiver of costs and fees he would need follow the appropriate court rules and file the appropriate documents. According to Judge Switalski, plaintiff never followed those rules and did not file the appropriate documents. In his complaint, plaintiff admits that he has secured the sentencing transcripts and various motion transcripts. However, at the time he filed the complaint plaintiff had not been provided the transcripts or tapes of the trial. In his complaint, plaintiff also discusses his correspondence with other members of court personnel.

Plaintiff filed this action against Judge Switalski, alleging that Judge Switalski failed to allow plaintiff to review or receive copies of his trial court records and failed to respond or timely respond to plaintiffs requests for an opportunity to review his records. Plaintiff alleged that Judge Switalski informed the court reporter not to provide the plaintiff with copies of tapes of his trial and sentencing. Plaintiff also alleged that Judge Switalski had a duty to issue an order directing the Court Reporter to provide the plaintiff with transcripts or an opportunity to review the transcripts and that Judge Swital-ski refused to issue such an order.

Plaintiff requests a declaratory order that defendants violated his constitutional rights. Plaintiffs complaint also seeks a temporary restraining order prohibiting defendants from refusing to allow plaintiff access to the files of the 39th District Court. Plaintiffs complaint also seeks an order directing defendants to provide plaintiff with papers required by Michigan law to file an appeal and an order allowing plaintiff to file papers as if they were timely filed.

II. Motion for Summary Judgment

A. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted “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 that the moving party is entitled to judgment as a matter of law.” “A fact is ‘material’ and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle^] of law to the rights and obligations of the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) [341]*341(citation omitted) (quoting Black’s Law Dictionary 881 (6th ed. 1979)). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant’s favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.CivJ?. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue.

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Cite This Page — Counsel Stack

Bluebook (online)
897 F. Supp. 339, 1995 U.S. Dist. LEXIS 13723, 1995 WL 552059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schorn-v-switalski-mied-1995.