THOMAS v. REAGAN
USDC Cr. No. 84-3552
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
Defendants
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS'
MOTION TO CANCEL SUMMARY JUDGMENT HEARING
It is plaintiffs' position that, as the Magistrate has
structured this matter, the only purpose that a hearing on the
"motions for summary judgment" can serve is to prejudice
plaintiffs.
A. Fed.R.Civ.P.56(a) provides that:
"a party seeking to recover upon a claim... or to obtain
a declaratory judgment may, at any time... or after service of a
motion for summary judgment by the adverse party... move... for a
summary judgment in his favor..."
On September 22, 1986 plaintiffs filed such a Motion,
supported by several Declarations, a Memorandum of Law, the
Undisputed Facts contained in Plaintiffs' Trial Brief, and the
Trial Exhibits submitted by plaintiffs pursuant to Judge
Oberdorfer's Pre-trial Order, filed June 4, 1986. Without
explanation the Magistrate denied that motion.
Essentially the Magistrate has placed this matter in a posture
where he will be considering little more than defendants
predictable denials at their depositions.
"Complicated cases and cases involving constitutional or
other important issues are further examples where summary
adjudication may, as a general proposition, be undesirable... In a
civil rights action challenging a school board's removal of certain
allegedly offensive books from school liberies, the court of
appeals reversed a grant of summary judgment for the school board
and remanded for trial on whether the board's decision was
motivated by constitutionally permissable justifications or by an
impermissable desire to suppress ideas, violative of the First
Amentdment. In affirming, the Supreme Court held that, CONSTRUING
THE SUPPORTING EVIDENTARY MATERIAL MOST FAVORABLY TO THE NON-MOVING
PARTY, there was a genuine issue of material fact as to the board's
Motivation... " Board of Education, Island Trees Union Free School
District No. 26 v. Pico, 102 S. Ct. 2799 [1982], quoting Moore's
Federal Practice, 1984, at 507, emphasis added.)
B. Failure To Consider Relevant Material
I. The Magistrate has refused to consider facts which are
the subject of a request for judicial notice. (Moores's Federal
Practice, Rules Pamphlet, 1984, page 510 Para [7].)
II. In denying plaintiffs' motion for summary judgment
the Magistrate has refused to consider documentary and other
evidentary material; e.g. Plaintiffs' Trial Brief and Trial
Exhibits (ibid).
III. The Magistrate has refused to allow depositions on
written questions of Defendant United States Government (Moore's
Federal Practice, para [7], see also plaintiffs' Objections to
Magistrate's Discovery Decisions (Obj. Dis.), filed September 22,
1986.)
"In Yusuf Asad Madyan v. Thompson, 657 F2d 868, summary
judgment was granted for defendants when pro se prisoner plaintiffs
failed to file opposing affidavits as required by Rule 56(e).
Reversing, the court of appeals held that the district court erred
in granting the motion without first alerting plaintiffs to the
need for counter-affidavits. Adequate knowledge of the right and
the necessity of filing counter-affidavits under Rule 56(e) is
crucial to the pro se litigant's access to a just disposition on
the merits." (Moore's Federal Practice, at 511.)
Here plaintiffs have made every conceivable effort to have the
court consider necessary evidentiary material, and the Magistrate
has stymied each attempt. Plaintiffs have tried to insure that all
of their evidentiary material met procedural standards (e.g.
Plaintiffs' Second Motion for Judicial Notice, filed August 27,
1986). Madyan supports the position that the Magistrate, in the
interst of justice, should be assisting plaintiffs in assuring that
relevant documents that support their claims are introduced into
the record. It seems the Magistrate, from his denial of
plaintiffs' Motion for Summary Judgment (i.e. Trial Brief, Trial
Exhibits, Memorandum of Law) and Second Motion for Judicial Notice,
has assumed a position antithetical to Madyan.
C. Incomplete Discovery.
"...no serious claim can be made that respondent was
in nay sense 'railroaded' by a premature motion for summary
judgment. Any potential problem with such premature motions can be
adequately dealt with under Rule 56(f), which allows a summary
judgment motion to be denied, or the hearing on the motion to be
continued, if the nonmoving party has not had an opportunity to
make full discovery." (Celotex Corp. v. Catrett, Decided June 25,
1986, slip opinion at 8 and 9.)
Here, where the Magistrate has observed that the failure of
the Federal Defendants to make defendant Lindsey available for a
deposition would certainly allow for the claim that discovery had
not been complete, there would clearly be room for a claim that
plaintiffs have been 'railroaded' (see Obj. Dis.).
Moreover defendants Parr, and Bedell have not been deposed;
omissions which plaintiffs would also characterize as less than
full discovery (ibid).
Then too there are the questions of various documents which
are in the possession of defendants which bear directly on this
matter, and have not been produced despite plaintiffs' repeated
requests (ibid).
D. Federal Defendants Lack A Factual Basis For Their Summary
Judgment Motion, And their Procedural Basis is Backwards.
It would appear that counsel hangs his entire case on
plaintiffs' "telling ignorance" of two precedents.
In Celotex Corp. v. Catrett, the Court cited Adickes v. H.S.
Kress, 398 US 144, 159; "the party opposing the motion for summary
judgment bears the burden of responding only after the moving party
has met its burden of coming forward with proof of the absence of
any genuine issues of material fact." (Celotex v. Catrett, decided
June 25, 1986, Slip Opinion at 4, emphasis in the original.)
"Again in Adickes v. H.S. Kress, 398 US 144 (1970), the
Court emphasized that the availability of summary judgment turned
on whether a proper jury question was presented. There, one of the
issues was whether there was a conspiracy between private persons
and law enforcement officers. The District court granted summary
judgment for the defendants... We reversed, pointing out that the
moving parties' submissions had not foreclosed the possibility of
the existence of certain facts from which 'it would be open to a
jury... to infer from the circumstances' that there had been a
meeting of the minds. id at 158-159." (Anderson v. Liberty Lobby,
decided June 25, 1086, slip Opinion at 6.)
Adickes relied on one incident where a policeman was allegedly
in a store, and then arrested plaintiff. Neither Celotex nor
Anderson reversed Adickes. In the instant matter plaintiffs allege
dozens of such incidents (e.g. Amended Complaint para 130 (a)-(m)).
Surely if a jury may have inferred a "meeting of minds" from
Adickes' one incident, here there are dozens of times the likilhood
that such an inference might be drawn from plaintiffs' dozens of
allegations.
Adickes certainly makes plain that an arrest under color of
regulation is, in and of itself, an "unconstitutional excess."
ARGUMENT
In research of Section 1983 and 1985 cases plaintiffs have
been unable to discover an instance where any claimant alleged so
many wrongful actions as plaintiffs have in this complaint. The
depositions have shown that WITHOUT EXCEPTION in EVERY incident
chronicled by plaintiffs' pleadings 1) defendants have not disputed
that the incident occurred substantially as plaintiffs alleged, and
2) the individuals named in the pleadings participated in
substantially the manner alleged. The only question remaining...
a question upon which the Magistrate firmly precluded inquiry (see
Obj. Dis.)... was the motive(s) of the defendants or their agents
which, of course, is the question for a fact finder.
On October 24, 1986 plaintiffs filed a Supplement to their
Response to Federal Defendants Opposition to his Appeal from the
Magistrate's September 30, 1986 Hearing. In that document Thomas
figuratively likened Mr. Martinez's approach to this matter to the
excretory functions of the human body. Plaintiffs certainly hope
that this analogy did not offend the Court, but continue to believe
that counsel's approach offends logic, fair play, and the most
fundamental precepts of any conceivable civilized resolution of
conflict.
Plaintiffs feel it is self-evident that they have made
monumental efforts to arrive at an accurate understanding of the
facts of this matter, and that defendants have consistently sought
to avoid those issues, preferring to stubbornly rely on the
assertions of their pleadings, while ignoring plaintiffs' factual
allegations. Defendants' approach of steadfast ignorance of fact
denies reason and threatens the very fabric of meaningful dialogue
within the judicial system.
As is, perhaps, reflected by his written submissions in this
case, Thomas is notably idealistic. Ever since he could understand
them Thomas has been a devoted proponent of liberty, equality, and
justice. Thomas believes that the Founding Fathers of this country
enshrined those ideals in the Declaration of Independence, and,
more germainely, the Bill of Rights. Thomas also believes that
today those ideals may be entirely lost to a generation of
unsuspecting materialists. Largely these beliefs account for the
continuous "reproachful presence" (Court's Order, June 3, 1985)
which plaintiffs have sought to maintain in Lafayette Park, and
which defendants have allegedly sought to squelch under color of
regulation.
"I am sensitive, perhaps more sensitive then most, to the
fact that if your government suppresses the type of demonstration
in which you are engaged it would jeopardize the liberty of us
all..." (Court's observation upon sentencing Thomas [then
defendant], July 19, 1984.)
The Court might also recall having lectured Thomas with
respect to the "civilized manner" of resolving controversy which
this country allegedly provides.
Plaintiffs respectfully submit that Judge Oberdorfer bears a
heavy burden in this matter for at least three reasons. The
foremost, articulated above, is to insure the status quo, and such
liberty as existed prior to the implementation of the regulatory
scheme alleged by this litigation. Secondly, Thomas proffers, he'd
never have brought this suit had it not been for the Judge's lofty
professions, which, it seemed to Thomas, held out the hope that at
least one individual in the Federal District Court had some
appreciation of liberty and equal protection under the law.
Lastly, plaintiffs quite honestly believe that the Magistrate lacks
any meaningful sensitivity re the jeopardy of liberty. Not only do
the Magistrate's repeated orders barring plaintiffs from Lafayette
Park during certain hours (e.g. Trial Exhibit ___) seem to reflect
idealistic callousness; less graphically, comments made by the
Magistrate during discovery might arguably indicate that he begins
from the premise that the March 5, 1986 "sign-size regulation" must
be a "reasonable" time, place, and manner restriction, merely
because it did not facially ban plaintiffs from demonstrating in
the Park. Plaintiffs disagree strongly with that premise, and
believe Judge Oberdorfer has a responsibility to protect plaintiffs
from that premise by testing the "sign size regulation" against 42
USC 1983, 1985, and 1986.
CONCLUSION
Plaintiffs cannot concieve of litigating this matter further
under the circumstances without doing themselves a disservice.
Proceeding within the framework which the Magistrate has
engineered, plaintiffs would be placed at the distinct disadvantage
of trying to present a case from which hard facts have been
arbitrarily excluded to the accommodation of self-serving denials.
Therefore plaintiffs once again pray this Court to put this matter
on track by either explaining to them the error of their
perceptions, or by re-assuming control of this case from the
Magistrate.
Respectfully submitted this _____ day
of _________, 1986.
___________________________________
William Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
(202) 462-3542
___________________________________
Ellen Thomas, Plaintiff Pro Se
Peace Park Antinuclear Vigil
POB 27217, DC 20038
(202) 462-3542
Case Listing --- Proposition One ---- Peace Park