815 F. 2d 704 - Kimsey v. Garsailli

The plaintiff moves for counsel on appeal from the district court's grant of summary judgment to the defendant in this prisoner's civil rights case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and plaintiff's informal brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The plaintiff is a prisoner at the Lima Correctional Institute in Lima Ohio. The defendant is a captain in the police department in New Philadelphia, Ohio. The complaint alleges that the medicine the plaintiff was receiving while in prison was poisoned by someone at the prison. The plaintiff sent samples of his medicine to his niece outside the prison so that she could send those samples to the FBI crime laboratory for analysis. The plaintiff alleges that the defendant illegally seized this medicine, failed to forward it to the FBI crime laboratory, and conspired with the prison officials to continue the cover-up of the plaintiff's poisoning.

The defendant filed a motion to dismiss stating that the plaintiff's niece voluntarily gave him the medicine, that he forwarded the medicine to the state crime laboratory, and that the results of the analysis showed that the pills had not been contaminated. Based on this affidavit, the district court granted summary judgment to the defendant.

Summary judgment is proper where there is no genuine issue of material fact. Rule 56(c), Federal Rules of Civil Procedure. Under Rule 56(e), affidavits must be based on personal knowledge. Affidavits composed of hearsay and opinion must be disregarded. State Mutual Life Assurance Co. v. Deer Creek Park, 612 F.2d 259, 264-65 (6th Cir.1979). The defendant's affidavit was clearly based on personal knowledge of the facts. It was proper for the district court to grant summary judgment based on this affidavit, when the plaintiff's opposing affidavit merely contained conclusory allegations that the defendant had engaged in a conspiracy with the prison officials.

The district court was correct to note that the state crime laboratory should have tested the brown substance in the bag accompanying the pills. However, the plaintiff has not been able to state any individual defendant who would be liable for the alleged contempt to poison him. Therefore, the district court was correct to grant summary judgment in favor of the only defendant named in this case.

The motion for counsel is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.