Harlan L. Jacobsen v. Richard Filler ( 1986 )

RYMER, District Judge.

This case was brought by Harlan L. Jacobsen against the City of Scottsdale and six city council members as well as against Scottsdale’s Mayor, William Jenkins; the City Attorney, Richard Filler, and Donald Loeb, an Assistant City Attorney. The complaint, which alleges that the dismantling and confiscation of Jacobsen’s newspaper racks violates 42 U.S.C. § 1983, is only a single chapter in the parties’ protracted struggle over the marketing of the semimonthly tabloid newspaper “Single Scene.” During the course of the feud, Jacobsen has been represented by counsel on a number of occasions, and he retained legal counsel in the early stages of the present dispute. Jacobsen elected to represent himself at the time he filed the complaint, however, and he has continued to appear in propria persona throughout.

Jacobsen raises two issues on appeal. First, he contends that the district court committed error when it granted the city council members’ motion for partial summary judgment because of his failure to file any response to the motion. Second, he argues that granting Loeb’s motion for summary judgment was inappropriate in that the motion raises genuine issues of material fact not susceptible of resolution under Fed.R.Civ.P. 56. Because we believe that both summary judgement motions were properly granted, we affirm.

1. The City Council’s Motion

On July 3, 1980, the six Scottsdale city council members moved for partial summary judgment and noticed the motion for hearing under Arizona Local Rule 11(e).¹ In support of their motion, the defendants filed a “Rule 11(h) statement”² setting forth the specific facts upon which they intended to rely and the evidence in the record which supported their claim. Jacobsen did not respond to the motion with a written opposition, nor did he submit admissible evidence as required by Local Rule 11(h) and Fed.R.Civ.P. 56(e). However, he contends that he did not know that he had to do these things.³ Urging that rules applicable to pro se prisoners should be extended to all pro se litigants, see, e.g., Moore v. Florida, 703 F.2d 516 (11th Cir.1983); Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975); Hudson v. Hardy, 412 F.2d 1091 (D.C.Cir.1968), Jacobsen argues that it was the district court’s duty to advise him of the measures he should take to oppose the defendants’ motion; and that it was unfair to enter summary judgment without having done so.

We reject Jacobsen’s argument, for a number of reasons. First and foremost is that pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record. Trial courts generally do not intervene to save litigants from their choice of counsel, even when the lawyer loses the case because he fails to file opposing papers. A litigant who chooses⁴ himself as legal representative should be treated no differently.⁵ In both cases, the remedy to the party injured by his representative’s error is to move to reconsider or to set aside;⁶ it is not for the trial court to inject itself into the adversary process on behalf of one class of litigant.⁷

Imposing an obligation to give notice of Rule 56’s evidentiary standards would also invite an undesirable, open-ended participation by the court in the summary judgment process.⁸ It is not sensible for the court to tell laymen that they must file an “affidavit” without at the same time explaining what an affidavit is; that, in turn impels a rudimentary outline of the rules of evidence.⁹ Unlike the conversion of a 12(b)(6) motion into a motion for summary judgment, which only requires notice of what the motion now is,¹⁰ Jacobsen’s proposal requires advice as to what the motion must mean. To give that advice would entail the district court’s becoming a player in the adversary process rather than remaining its referee.

Finally, even if a substantive notice requirement were desirable, it should be enacted through formal amendment rather than piecemeal adjudication. Rule 56’s separate notice provision (compare Rule 56(c) with Rule 6(d)) and description of summary judgment (compare Rule 56(e)¹¹ with Rule 12(b)) indicate that the Supreme Court and its Advisory Committee have considered the special problems raised by the summary judgment procedure and, by failing to require specific notice of the nature of summary judgment, have concluded that the present federal rules (particularly when amplified by local rules such as Arizona Local Rule 11(h))¹² already apprise litigants of their summary judgment obligations. Requiring additional notice to pro se litigants would be an accretion onto Rule 56(c), not an interpretation of it;¹³ and as an ad hoc amendment it would not be standardized, codified, or subject to collective decision making.

For all of these reasons, we decline to extend the Hudson rule and conclude that the district court did not have to inform Jacobsen of the need to file affidavits or other responsive matter before granting summary judgment against him.

II. Loeb’s Motion

On September 8, 1983, defendant Donald Loeb moved for summary judgment and filed an affidavit stating that he had no prior knowledge of, nor did he order, authorize, or participate in the actions alleged in the complaint. Jacobsen responded with three affidavits, one his own and two from attorneys who had worked for him. The district court granted the motion in a minute order filed November 14, 1985; Jacob-sen appeals on the ground that his counter-affidavits create a genuine issue of triable fact as to Loeb’s participation in the alleged events.¹⁴

Summary judgment under Rule 56 is not appropriate where genuine issues of material fact remain to be tried. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir.1985); see generally Schwarzer, “Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact,” 99 F.R.D. 465 (1984). In this case, Jacobsen’s affidavits fail to raise such an issue. Jacobsen’s allegations that Loeb was involved in prior litigation with him and that Loeb threatened him with further action do not show that Loeb actually was involved in or knew about the confiscation of the newsracks. The same can be said for attorney Moen’s statement that he had negotiated with Loeb after the first and before the second incident; even if true, Loeb’s knowledge of Jacobsen’s complaint does not raise a genuine issue whether Loeb knew about the subsequent actions of other city employees. Finally, Jacobsen’s deposition testimony about what he read in a newspaper article (not introduced into evidence) and what his attorneys told him is not based on personal knowledge and is inadmissible hearsay. Therefore it fails to raise a genuine issue sufficient to withstand summary judgment.

Accordingly, the entry of summary judgment against Jacobsen and in favor of the city council members and Donald Loeb is AFFIRMED.

1 . Arizona Local Rule 11(e) [later redesignated as Local Rule 11(f)] provides in pertinent part:

Any party desiring oral argument shall file with his motion or response a notice to that effect setting forth therein the date, time, and courtroom for the hearing. The time of the hearing shall be such as to give each party sufficient time to comply with this Rule and to allow the Court at least five (5) days additional prior to such hearing.

2 . Arizona Local Rule 11(h) [now Local Rule ll(i) ] states in part:

Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which he relies in support of his motion. The specific facts shall be set forth in serial fashion and not in narrative form. As to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.). Any party opposing a motion for summary judgment must comply with the foregoing in setting forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.

3 . Jacobsen appears to make two separate arguments in defense of his failure to respond: first, that as a litigant in forma pauperis he should have been notified of Rule 56’s requirement that he file affidavits or other evidentiary matter; and second, that he reasonably relied upon the setting of oral argument in the case to conclude that he would be able to put on evidence at the time of the hearing.

4 . It is the element of “choice" which most clearly distinguishes the pro se prisoner cases from the suit at bar. The leading "fair notice” prisoner case, Hudson v. Hardy, first acknowledged that "in the ordinary civil case, appellant’s failure to respond by affidavit might have warranted the entry of summary judgment against him.” Hudson, 412 F.2d at 1094. However, Hudson concluded that an exception should be made for a prisoner unrepresented by counsel who, because of the “handicaps ... detention necessarily imposes upon a litigant,” probably would be unable to retain counsel even if he had the financial means to do so. See id. (quoting Phillips v. United States Board of Parole, 352 F.2d 711, 713 (D.C.Cir.1965)). The large numbers of published decisions involving prisoners appearing in forma pauperis support the conclusion that an inmate’s choice of self-representation is less than voluntary; and, when that unwilling self-representation is coupled with the further obstacles placed in a prisoner's path by his incarceration—for example, his limited access to legal materials, Moore, 703 F.2d at 520, and to sources of proof, Hudson, 412 F.2d at 1095—it seems appropriate to apply the requirements of the summary judgment rule with less than “strict literalness.” Hudson, 412 F.2d at 1094.

The dissent would extend Moore; Roseboro; Ham v. Smith, 653 F.2d 628 (D.C.Cir.1981); and Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982)— all cases involving pro se prisoner litigants — to ordinary civil actions and argues that those cases, with the possible exception of Ham, were not confined to pro se prisoner plaintiffs. The District of Columbia Circuit in Ham explicitly addressed itself to the unique problems of prisoner pro se litigants. "[A] pro se imprisoned litigant suffers handicaps that may impair the effective prosecution of his claim. A pro se plaintiff, upon his release from prison during the course of litigation, is likely to be saddled with similar handicaps and therefore should receive an explanation of the risks attending failure to respond to a summary judgment motion.” Ham, 653 F.2d at 630. Lewis and Moore also addressed these unique handicaps and premised their analyses on these handicaps. “Pro se prison inmates, with limited access to legal materials, occupy a position significantly different from that occupied by litigants represented by counsel.” Moore, 703 F.2d at 520; see also Hudson, 412 F.2d at 1094 (”[w]e have recognized ... that the requirements of the summary judgment rule may not fairly be applied 'with strict literalness’ to a prisoner unrepresented by counsel and subject to the handicaps * * * detention necessarily imposes upon a litigant.’” (quoting Phillips, 352 F.2d at 713)). In Lewis, 689 F.2d at 102, the Seventh Circuit noted:

It would not be realistic to impute to a prison inmate (unless, like the ‘former law professor’ of whom this court spoke in Maclin v. Freake, 650 F.2d 885, 888 (7th Cir.1981) (per curiam), the prisoner has legal training) an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature, on affadavits, so that not submitting counter affadavits is the equivalent of not presenting any evidence at trial.

While Roseboro did not explicitly address the peculiar problems faced by prisoner pro se litigants, that was a one-page, per curiam opinion that cited Hudson, 412 F.2d at 1094, which did address itself to these unique difficulties.

5 . As the court put it in United States v. Pinkey, 548 F.2d 305 (10th Cir.1977):

The hazards which beset a layman when he seeks to represent himself are obvious. He who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to become an "advocate" for or to assist and guide the pro se layman through the trial thicket.

548 F.2d at 311. See also Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir.1983); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981); Barnes v. United States, 241 F.2d 252 (9th Cir.1956).

6 . Outside the bounds of the lawsuit, parties with retained counsel also may have the remedy of a malpractice action. However, such a suit does not entirely compensate for loss of the opportunity to obtain redress on the merits, particularly where, as here, the pro se litigant seeks declaratory or injunctive relief.

7 . Besides favoring unrepresented litigants over badly represented ones, Jacobsen’s suggestion would require the trial court to help one side to a lawsuit rather than another solely because of the status of their legal representation. Doing so necessarily implicates the court’s impartiality and discriminates against opposing parties who do have counsel.

8 . This problem has not been addressed in the pro se prisoner cases. The most explicit description of what constitutes "sufficient" notice may be found in Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975), which states that the litigant should "be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.” However, it is not clear from the opinion whether the notice need consist of little more than that statement (e.g., "you are advised that Rule 56 requires you to file counter-affidavits or other admissible evidence if you wish to oppose the motion; and the failure to do so will result in the entry of summary judgment against you”); or whether it is necessary to give a somewhat fuller explanation of "counter-affidavits” and "other admissible material"; or whether the notice should vary depending upon the court’s assessment of the litigant’s knowledge and intelligence.

9 . For example, Jacobsen apparently intended to offer only his own testimony as evidence, and there is no showing that he had any personal knowledge of the city council members’ participation in the scheme (indeed, the later summary judgment motion involving Loeb suggests that he did not).

10 . Because the notice requirement found to be implicit in the last sentence of Fed.R.Civ.P. 12(b)(6) merely requires the court to "notice” the motion the way the parties usually do under Rule 56(c), and because Jacobsen was given specific notice that it was a summary judgment motion, cases such as Garaux v. Pulley, 739 F.2d 437 (9th Cir.1984) and Davis v. Zahradnick, 600 F.2d 458 (4th Cir.1979) do not apply to the present case. We note also that Garaux, who appeared in pro per, was at the time a prisoner at San Quentin Prison. To require that the notice of Rule 12(b) (which must be applied to all parties and which admittedly is a "highly technical requirement[ ]” of the federal rules, Garaux, 739 F.2d at 439) be even more stringently construed in the case of a pro se litigant who may be unschooled in law, does not implicate the court’s impartiality as would a requirement that the court school one side in the techniques for opposing a motion for summary judgment.

The dissent also cites Borzeka v. Heckler, 739 F.2d 444 (9th Cir.1984); Sherman v. Yakahi, 549 F.2d 1287 (9th Cir.1977); Hansen v. May, 502 F.2d 728 (9th Cir.1974); and DeWitt v. Pail, 366 F.2d 682 (9th Cir.1966) for the proposition that courts have a duty, recognized by this Circuit, to ensure that pro se litigants do not lose their right to a hearing due to their ignorance of technical procedural requirements. These cases are inapposite for similar reasons. In Borzeka, 739 F.2d at 447, we held that failure to comply with Fed.R.Civ.P. 4(d)(5)’s personal service requirement

does not require dismissal of the complaint if (a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed.

Regarding the third factor, it was noted that "appellant was proceeding pro se when the defective service was made. We are generally more solicitous of the rights of pro se litigants, particularly when technical jurisdictional requirements are involved.” Id. at 447 n. 2. Again, merely taking the pro se status of litigants into account in determining compliance with technical pleading or procedural rules does not require the district court to inform the litigant of how to comply with the federal rules rules regarding service. Sherman simply stated that the liberal pleading requirements set out in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) in a motion to dismiss for failure to state a claim apply with even greater force when the complaint is by a pro se litigant. Sherman, 549 F.2d at 1290, accord, Hansen, 502 F.2d at 730; DeWitt, 366 F.2d at 685. These holdings likewise do not require the district court to instruct litigants on proper pleading.

11 . Rule 56(e) states:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Sworn or certified copies of all papars or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

If he does not so respond, summary judgment, if appropriate, shall be entered against him.

This rule, which was referred to by the number in the council’s moving papers, makes it clear that (1) the failure to respond will result in the entry of summary judgment against the non-moving party; (2) the response must set forth specific facts, either by way of affidavit or by the other means specified in the rule (depositions, answers to interrogatories, sworn or certified copies of papers); and (3) the affidavits must be based on personal knowledge and be admissible in evidence.

12 . The provisions of Local Rule 11(h) make it impossible to conclude that Jacobsen reasonably believed that he did not need to file a written response. The rule states that any party moving for summary judgment "shall set forth separately from the memorandum of law, and in full, the specific facts on which he relies;" that “the specific facts shall be set forth in serial fashion and not in narrative form;” and that "as to each fact, the statement shall refer to a specific portion of the record where the fact may be found.” The rule then provides that “any party opposing a motion for summary judgment must comply with the foregoing.” Jacobsen was apprised of Local Rule 11(h) through the council’s filing of their “Rule 11(h) statement”; by its terms the rule makes it clear that he had to file a written statement of facts in opposition to the motion.

13 . This is another important way in which the present case differs from the cases construing the notice required by Rule 12(b)(6) and 56(c). Those decisions simply interpret the meaning of Rule 12(b)(6)'s requirement of “reasonable opportunity”; Jacobsen’s proposal has no basis in the language of any federal rule.

14 . Jacobsen also contends that summary judgment was inappropriate as a matter of law because (1) Loeb was part of a conspiracy to deprive Jacobsen of his constitutional rights, and (2) he had an affirmative duty to advise other city employees that they should not pursue their course of action. However, conspiracy is not alleged in the complaint, and Jacob-sen has not suggested that Loeb had any control or direction over the city employees involved in the confiscation or dismantling of the news-racks. Therefore neither argument supports reversal of the district court.