Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 8 of 54 SUMMARY OF ARGUMENT Defendant John Freshwater has failed to present any evidence showing disputed issues of material fact as to his counterclaims for defamation and intentional infliction of emotional distress, or as to Plaintiffs’ battery and Establishment Clause claims. Plaintiffs are entitled to summary judgment on Defendant’s defamation counterclaim because many of the statements that he alleges are defamatory were either made by parties other than the Dennises or are protected by an absolute or qualified privilege. Even if the statements are not privileged, they were not published with actual malice. Defendant also has offered no evidence to defeat summary judgment on his counterclaim for intentional infliction of emotional distress. He has not demonstrated that Plaintiffs intended to cause him emotional distress, that Plaintiffs acted in an outrageous or extreme manner, or that he suffered a severe or debilitating injury as a result of Plaintiffs’ alleged actions. Plaintiffs also should be granted summary judgment on their battery claim, as they have made out a prima facie case for this tort and Defendant has countered with nothing more than disputes over immaterial facts supported only by his own contradictory testimony, self-serving affidavits, and nonsensical arguments that lack legal grounding. Additionally, summary judgment is proper on Plaintiffs’ Establishment Clause claim. Freshwater’s attempt to shift liability for his own constitutional violations to school officials is wholly unsupported in law or fact, and he provides no evidence to justify his display of various Bibles and multiple copies of the Ten Commandments in his public school classroom. Lastly, the exhibits that Defendant untimely filed on January 7, 2010 are improper summary-judgment evidence and he should not be permitted to rely on them in opposing Plaintiffs’ motion for summary judgment.
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 9 of 54 JOHN DOE, et al., v. Plaintiffs, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION MOUNT VERNON CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants. 2 Case No. 2:08 CV 575 Judge Frost Magistrate Judge King I. INTRODUCTION In opposing the Dennises’ motion for partial summary judgment, Freshwater is so busy creating a sideshow that he misses the main event. He fixates on disputes over immaterial facts, but fails to point to a single shred of evidence—other than inconsistencies in his own prior testimony and denials in his own self-serving affidavits—that gives rise to a material fact dispute as to any of the central issues of this case. As a result, he has produced no evidence establishing that the Dennises defamed him or that he suffered from emotional distress, and he has offered nothing to refute the Dennises’ claims that he committed battery when he applied the Tesla coil to Zach Dennis’s arm or that he violated the Establishment Clause by displaying various Bibles and several copies of the Ten Commandments in his public school classroom. To support his defamation counterclaim, Freshwater provides only a laundry list of allegedly defamatory statements made by unknown speakers to unknown parties in unknown contexts. Freshwater does not cite the record for these statements, but after tracking down this missing-yet-critical information, the Dennises have found that more than a third of the statements in question were made by other individuals and entities, not by them. The Dennises cannot be
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Plaintiffs' reply in support of their motion for partial summary judgment

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