Warren's appeal sent back to district court

The trial judge's extension of document filing time wasn't deemed unreasonable.
By PETER H. MILLIKEN
VINDICATOR TRUMBULL STAFF
A three-judge panel of the U.S. Sixth Circuit Court of Appeals has dismissed Warren's appeal in a federal civil rights case involving Lyndal Kimble.
Saying it lacks jurisdiction in the matter, the circuit court in Cincinnati is sending the case back to federal district court in Youngstown.
Kimble and his wife, Melanise, had sued the city, Police Chief John Mandopoulos and police officers Greg Hoso, Frank Tempesta and Michael Stabile on the grounds that the officers used excessive force while arresting Lyndal Kimble on June 28, 2003.
Richard Olivito, Kimble's lawyer, said the city was trying to have the case dismissed on technicalities.
"We take this as a nice victory," he said. "We feel pretty confident we'll be able to litigate the civil rights issues."
Kimble is black, and the officers are white.
The city had sought to have U.S. District Judge Peter C. Economus, the trial judge in Youngstown, dismiss the suit by summary judgment based on what the city said was its qualified immunity from such suits.
Extension allowed
Judge Economus granted Kimble's lawyers, Olivito and Clair Carlin, 31/2 months of extensions to file a response to the city's motion for summary judgment, with the final extension ending June 30, 2004.
Meanwhile, the city filed its appeal to the U.S. circuit court June 8, 2004, alleging that Judge Economus erred in failing to rule on the city's motion for summary judgment.
In general, the appellate court said it lacks jurisdiction to rule on procedural decisions by a trial judge, such as this extension of filing time, when they aren't conclusive decisions affecting the outcome of the case.
"It seems to us to be reasonable that the district judge was attempting to ensure that the Kimbles' case was not erroneously dismissed," wrote appellate Judge Boyce F. Martin Jr. "The time delay [31/2 months] does not appear egregiously long given the circumstances of the case," he added.
Warren police said Kimble swallowed a small amount of suspected drugs before resisting the officers, who were trying to get him to spit out the evidence. Kimble's arrest was videotaped by a bystander and shown on local and national TV.
City Law Director Greg Hicks did not return a call from The Vindicator seeking comment on whether the city would appeal the Sixth Circuit decision to U.S. Supreme Court if it could do so.