USDC Cr. No. 84-3552

     Plaintiff Pro Se    
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     


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.

" 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."


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.


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