USDC Cr. No. 84-3552
THOMAS v. REAGAN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al
Plaintiff Pro Se
versus CA 84-3552
Judge Louis Oberdorfer
UNITED STATES, et al
NOTICE OF APPEAL FROM MAGISTRATE'S ORDER
OF OCTOBER 8, 1986
On September 30, 1986 Magistrate Burnett held a status
hearing, at which time he orally relieved all defendants of their
obligations to file timely responses to a number of Motions and
submissions filed by plaintiffs on September 22, 1986.
A trifle prematurely, perhaps, on October 2, 1986 plaintiffs
filed an Appeal from the Magistrate's oral rulings.
On October 7, 1986 the federal defendants filed an Opposition
to Plaintiffs' October 2nd Appeal (Opp.App.).
On October 8, 1986, Magistrate Burnett filed an Order which
itemized relief he granted all defendants in this action, thus
denying plaintiffs' efforts to present the facts for the record in
a relevant, effective, and civilized manner, pursuant to the
Federal Rules, the interests of justice, and plaintiffs' inter-
pretation of Magistrate Burnett's instructions during discovery
(see "Unofficial Transcripts" of August 21 and 22, 1986
depositions, colloquy during discussion of preliminary matters).
Additionally, the Magistrate's Order appeared to indicate that
Judge Oberdorfer has sanctioned the cancellation of the October 20,
1986 trial date.
While it seems events, and assumedly Judge Oberdorfer's
approval, have mooted plaintiffs' Appeal against postponment of the
October 20, 1986 trial date, the federal defendants' Opposition of
October 7 and the Magistrate's Order of October 8 combine to create
a pattern which delineates even more clearly the crucial need for
intervention from this Court.
ISSUES APPEALED FROM MAGISTRATE'S OCTOBER 8TH ORDER
1. Whether the Magistrate erred in denying plaintiffs' Second
Motion for Judicial Review, filed August 27, 1986 (Magistrate's
Order para. 3; inter alia para. A.)
2. Whether the Magistrate erred in denying plaintiffs'
Motion for Joinder of Parties, Claims and Remedies, filed September
2, 1986 (Magistrate's Order para. 4; inter alia para. B.)
3. Whether the Magistrate erred in denying plaintiffs'
Motions for Review and Certification of Transcripts, filed
September 12 and 23, 1986, (Magistrate's Order para. 5 and 10;
inter alia para. C.)
4. Whether the Magistrate erred in denying plaintiffs' Motion
for Reconsideration of earlier Motions for Summary Judgment, filed
September 22, 1986, (Magistrate's Order para. 6; inter alia para.
5. Whether the Magistrate erred in denying plaintiffs'
Motion for Preliminary Injunction (Magistrate's Order para. 7;
inter alia para. E-I), Motion for Consolidation of Hearing with
Trial on the Merits (Magistrate's Order para. 7; inter alia para.
E-II), and Motion entitled "Re-application for Temporary
Restraining Order" (Magistrate's Order para. 7; inter alia para.
E-III), all filed September 22, 1986.
6. Whether the Magistrate erred in denying, without explanation, plaintiffs' Motion for Leave to File an Opposition to
Federal Defendants' Motion for Judgment on the Administrative
Record, (Magistrate's Order para. 9; inter alia para.F-I); Motion
for Leave to File an Amended Restatement of Claim (Magistrate's
Order para. 9; inter alia para. F-II); and Motion for Joinder of
Plaintiffs and Class Action Certification, filed September 22,
1986. (Magistrate's Order para. 8; inter alia para. F- III.)
7. Whether the Magistrate should be excused from further
participation in this case, in order that this Court should again
assume control. (Inter alia G.)
Voluminous? Sure ... including one 1800 page, self-serving,
defamatory, fact-bending "Administrative Record" (filed by federal
defendants). Prolix? Redundant? Well, maybe just a little once
in a while, here and there (see inter alia E-ll "VIRGIN QUESTION";
see also Motion for Consolidation of the Hearing with Trial on the
Merits of Plaintiff's Civil Rights Claim, filed March 10, 1986,
Memorandum in Support of Plaintiff's Motion For Summary Judgment,
filed September 22, 1986, etc., etc.).
A. First Mr. Bates and now Mr. Martinez have been, at best,
slothful in attempting to facilitate any logical documentation of
fact. It might even be argued they have made absolutely no such
attempts. Therefore it seems the epitome of irony that Mr.
Martinez should now lay claim to concern for a "logical and
efficient way" to resolve this litigation (Opp.App. at 1).
The Magistrate denied, ostensibly "without prejudice,"
plaintiffs' Second Motion for Judicial Notice. It seems rather odd
for the Magistrate to have added that the Motion for Judicial
Notice might be renewed "at such time as the matters referred to
may become relevant in these proceedings." (Order at para. 3.)
I. The "matters referred to" are certainly "relevant to these
proceedings," (SEE colloquy between Magistrate Burnett and
plaintiff Thomas during preliminary matters on August 21, nad 22,
1986 e.g. Inter alia at C.)
II. The Motion for Judicial Notice, as the Record indicates,
was prompted largely by Government Counsel's adamant refusal to
address the facts in this case as they have been presented, in good
faith, by plaintiffs. The bulk of the Motion comprised a detailed
list of attachments already part of the record from plaintiffs"
pleadings, and requested that defendants note any objections they
might have to those documents. (See Second Motion for Judicial
Review, filed August 27, 1986.)
"When mandatory-- A court shall take judicial notice if
requested by a party, and supplied with the necessary
information." Fed. R. of Evidence 201(d).
Plaintiffs submit that the Motion, unopposed by defendants,
was proper, would have contributed to a "logical and efficient"
resolution of this controversy, and that denial was unfounded,
causing plaintiffs to be unjustifiably hindered in their efforts to
bring this matter to issue by documenting their allegations.
B. PLAINTIFF'S MOTION FOR JOINDER OF PARTIES, CLAIMS AND REMEDIES.
(1) The notion of malicious prosecution is not novel to
this action, but has been a key issue, however inartfully framed,
since November 21, 1984. (See Original Complaint, para. 165, 166.)
(2) Plaintiffs initially sought to join certain U.S.
Attorneys as early as May, 1985. (See "Third Amended Complaint,"
dated May 1985.)
(3) Plaintiffs should not be expected to have known that
the U.S. Attorney's Office or other of its representatives would be
necessary as parties to this case in order to resolve issues
cognizably stated (e.g. Complaint para. 165, 166).
(4) The necessity of U.S. Attorney parties in this case
did not begin to dawn on plaintiffs prior to the deposition of
defendant Canfield on July 10, 1986, when the Magistrate refused to
allow Thomas to pursue a line of questioning related to malicious
prosecution, despite Thomas' objection. (See Transcript of
Canfield deposition at 100-107.)
"Rule 19 deals with compulsory joinder of parties - persons
needed for a just adjudication, i.e., necessary and indispensable
parties..." (Moore's Federal Practice, Rules Pamphlet, 1984 at
(5) There is at least prima facie evidence that U.S.
Attorney Office representatives (a) were involved in malicious
prosecution (Tr. Ex. 78); (b) would have liked to disrupt Thomas'
communicative activities in Washington, D.C., and particularly in
Lafayette Park (Tr. Ex. 52 at p. 12); (c) suppressed evidence which
indicated there was no probable cause for arrests of Thomas on
which he was prosecuted (e.g. Tr. Ex. 185(a)-(n); Tr. Ex.
186(a)-(tt); Tr. Ex. 187(a)-(llll)); (d) were involved in the
alleged plot to deceive the Federal District Court into believing
that an individual used a sign to scale the White House fence (Tr.
Ex. 100, 101, 102); (e) made false, defamatory statements to the
press concerning plaintiffs' expressive activities (Tr. Ex. 167);
(f) participated in an "old boy" campaign which involved elements
hostile to the nature of the message contained on plaintiffs'
signs, and was intended to build an "official record" adverse to
plaintiffs' signs (e.g. Administrative Record A.I.ll, III.A.1-78;
see also Plaintiffs' Memorandum of Law, filed September 22, 1986,
"Complaint alleging that defendant(s) made false
statements which provided basis for criminal process under which
plaintiff was arrested alleged malicious use of process only, but
where fair reading of complaint suggested that defendant(s) had
been member(s) of conspiracy to deprive plaintiff of his
constitutional rights ... plaintiff should be given opportunity to
prove that defendant(s) (were) part of such conspiracy to abuse
process ..." (Jennings v Shuman, 567 F2d 1214-1215.)
"And there is no fatal defect where the indictment charges
that the conspiracy was entered into 'unlawfully' instead of
'wrongfully'...." (16 American Jurisprudence 2d, 244.)
Clearly, it would appear, plaintiffs' Motion for Joinder was
not untimely, is supported by a factual basis in this case, and
should not have been denied by the Magistrate.
C. Plaintiffs filed two Motions for Review and Certification
of transcripts. None of the defendants opposed either of those
Motions, but the Magistrate denied both. A number of police
officers were deposed, and official transcripts of those
depositions are in the Record (e.g. Docket Number 217, 218, 232,
233). Official transcripts of defendants Bangert, Robbins, and
Fish depositions have not been made a part of the record (see
Magistrate's Order August 20, 1986).
The requests for Review and Certification of transcripts are
not unreasonable. Without these transcripts there is no written
record of what was testified to by the most significant characters
yet deposed. The Federal Defendants are referencing this testimony
in their pleadings (e.g. Motion for Summary Judgment, filed August
29, 1986), as are plaintiffs, and it would seem the Record should
not be deprived of the convenient verification of that referencing
which the transcripts in question would provide.
The reason the official transcripts are not in the Record is
because plaintiffs lack the money to pay for them. Federal
defendants have made a representation that they intend to have
copies produced for the Record (Motion for Summary Judgment, August
29, 1986 at 5). Although some official transcripts have been made
part of the record, those most crucial to plaintiffs' case have
not, and, frankly, plaintiffs do not wish to rely on the federal
defendants to fulfill their promises.
The Supreme Court has held that indigent litigants "have a
Constitutional right of access to the courts" (Brandeis v. Smith,
430 US 8l7 (1977)), "and that this access must be adequate,
effective, and meaningful." (Sills v. Bureau of Prisons, USApp DC
84-5844, filed May 14, 1985 at 7.)
D. Docket Number 237.
Plaintiff renewed his Motions for Summary Judgment, as a
cross-motion to defendants' Motions for Summary Judgment. The
Magistrate has denied plaintiff's motion with no explanation. He
is, of course, considering defendants' motions for Summary
Judgment. On its face this situation appears prejudicial to
E. Docket Numbers 238, 245, and 247.
The Magistrate has denied Motions by plaintiff entitled Motion
For Reconsideration Of Plaintiff's Motion Temporary Restraining
Order (Docket Number 238), Motion For Preliminary Injunction
(Docket Number 245), and Motion For Consolidation of Hearing With
Trial On The Merits (Docket Number 247). The Magistrate's only
explanation for these denials is "raising matters beyond the scope
of this case... and as previously decided adversely to the
plaintiff." (Magistrate's Order, para. 7.)
I. With respect to Docket Number 245 it is perplexing that
the Magistrate might now imagine the matters have been previously
decided, or are beyond the scope of this case.
"This raises the interesting legal question of whether a
regulation, valid on its face and adapted for generally valid
purposes, can be claimed to violate an individual's civil rights if
adopted ... to further a conspiracy." (Magistrate's Order August
18, 1986, ftn. 2, p. 3.)
II. Equally pertinent to this case, plaintiffs believe, is the
interesting legal question of whether 36 CFR 50.19(e)(11)(12) was
adapted for generally invalid, illegal, or totalitarian purposes
with the specific intent of violating an individual's civil rights
under color of regulation. This is the same old question which
plaintiffs have been trying to focus from at least an early date,
and sought to pinpoint in Docket Number 247.
"In the circumstances existing during the relevant time here
a strong argument could have been made that a regulation
(promulgated under a conspiracy with the intent of) banning all
(effective methods of expression open to plaintiffs, individuals,
or groups of 25 or less, in the Park) would have been
unconstitutional." (ERA v. Clark, U.S. App. 84-5283, Opinion filed
October 26, 1983, at 16 [parenthises added].)
"The Complaint contains numerous ... allegations of police
misconduct, and plaintiff further claims that those acts were the
produce of a conspiracy pursued by federal and local officials....
"Plaintiff's Complaint states a substantial federal claim.
The fact that the constitutionality of the DOI regulations is
well-settled does not prevent the plaintiff from claiming ... that
defendants have violated his constitutional rights in the course of
enforcing the regulations...." (Memorandum of this Court, June 3,
"The Secretary ... cannot by his regulations alter or amend a
law. All he can do is to regulate the mode of carrying into effect
what Congress has enacted." (Morill v. Jones, 106 U.S. 467 ;
see also, Opposition to Federal Defendants' (Second) Motion to
Dismiss, p. 23.)
"In light of these facts, plaintiffs' claim that a memo from
Secretary Watt, and subsequent contacts between (defendant)
Robbins, a principle drafter of the regulations, and the Secretary
and the White House take on added significance.... (A) memo from
Secretary ... Watt requested a 'briefing on the regulations that
allow demonstrations and protesters in Lafayette Park and in front
of the White House on Pennsylvania Avenue. My intention is to
prohibit such activities and require that they take place on the
"When (defendant) Robbins spoke to Secretary Watt about
development of the regulation in March of 1983 (just several days
prior to Thomas' arrest by defendant Canfield), the Secretary told
Mr. Robbins to 'keep up the good work.' There was also contact
with the White House counsel of the status of the regulations.
Additionally plaintiffs urge that the key fact that both versions
of the regulations just happened to proscribe all of the
plaintiffs' then current activities on the sidewalk cannot be
regarded as mere co-incidence.
"In the circumstances it would appear that plaintiffs' claim
in this regard can in no wise be characterized as frivolous.... "
(Memorandum Opinion, J. Bryant, REA v. Watt, USDC CA 83-1243, filed
April 26, 1984, Tr. Ex. 132 [parentheses added].)
THE VIRGIN QUESTION:
"When the socially harmless actions of a specific individual
are guaranteed by the Constitution as legal rights and privileges,
and a group of individuals sworn to uphold the Constitution enter
into consort, first under color of traditions, customs, and
rituals, and later with the introduction of additional
collaborators and the concoction of administrative policy,
(furthered by a co-ordinated scheme to fabricate and
disseminate falsehood with the intent) to color these socially
harmless and Constitutionally protected privileges as criminal
activity, enforced through force, violence, imprisonment,
confiscation, and destruction of property, under the guise of
'governmental interest' ... have the collaborators themselves
conspired in a redressable act?" (Opposition to Federal
Defendants' (Second) Motion to Dismiss, Memo, p. 14.)
"If the agreement contemplates the bringing to pass of a
continuous result that will not continue without the continued
cooperation of the conspirators to keep it up, and there is such a
continuous cooperation, there is a single conspiracy rather than a
series of distinct conspiracies. A propos of the foregoing is the
statement that the character and the effect of a conspiracy are not
to be judged by dismembering it and viewing its separate parts, but
only by looking at it as a whole." (16 American Jurisprudence
Second Edition, Section 11 [eleven]; see also Opposition to Federal
Defendants' (Second) Motion to Dismiss, filed January 17, 1986 at
5 - 7).
Therefore plaintiffs think it is self-evident that the Motion
for Consolidation is not only appropriate for effecting a logical
and efficient resolution of this matter, but that without it
plaintiffs will have been hideously prejudiced.
III. In reference to Docket Number 238, federal defendants had
proposed that "plaintiff cannot show any threat of immediate or
irreparable harm" (Defendants' Opposition to Motion for TRO, filed
June 20, 1986 at 2), and plaintiffs' Motion for a Temporary
Restraining Order was denied upon that proposal on July 9, 1986.
Further, plaintiffs recognize that on August 7, 1986 Judge
Oberdorfer upheld that denial. Nonetheless plaintiffs believe
that they are entitled to petition for reconsideration.
"If your government suppresses the kind of protest in
which you are involved it threatens the liberty of us all." (USA v.
Thomas, CR 83-196, Judge Oberdorfer December 21, 1983.)
While there contines to exist any hope that Judge Oberdorfer
is indeed committed to the beliefs he has articulated to Thomas in
the past (e.g.December 21, 1983, July 19, 1984, et. al.), then
Thomas will persevere in his attempts to achieve understanding.
"Assuming the validity of plaintiffs' allegations, as the
Court should at this juncture (Reuber v. USA, 750 F2d 1080, 1061),
the only question plaintiffs can perceive is whether the alleged
combination of 'mindless bureaucracy and totalitarian police state
tactics' (see Complaint, at 111) constitutes irreparable injury to
'individual freedom and personal excellence' (ibid).
"To plaintiffs the question is not whether this regulation
causes proximate harm to an individual, rather, they ask how a
nation conceived in liberty and dedicated to the proposition that
all men are created equal can conceivably endure under a mindless
scheme of administrative regulatory abuse cloaked under content
neutrality. This is all the clarification plaintiffs ask."
(Docket Number 238 Motion For Reconsideration at 6, and 7.)
Case Listing --- Proposition One ---- Peace Park