Schaefer v. Newton

• Decision Date: 11 July 1994
• Docket Number: No. IP 93-614-C.,IP 93-614-C.
• Citation: 868 F. Supp. 246
• Parties: Gerard SCHAEFER, Plaintiff, v. Michael NEWTON and Avon Books, Defendants.
• Court: U.S. District Court — Southern District of Indiana

868 F. Supp. 246

Gerard SCHAEFER, Plaintiff, v. Michael NEWTON and Avon Books, Defendants.

No. IP 93-614-C.

United States District Court, S.D. Indiana, Indianapolis Division.

July 11, 1994.

Gerard Schaefer, pro se.

Jan M. Carroll, Barnes & Thornburg, Indianapolis, IN, for defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND ANCILLARY MOTIONS AND DIRECTING ENTRY OF JUDGMENT

STECKLER, District Judge.

This cause is before the Court on the plaintiff's complaint and on the defendants' answer. Both the plaintiff and defendants seek the entry of summary judgment and those motions have been fully briefed. The defendants have also filed a motion to strike the evidentiary materials relied on by the plaintiff in opposing the motion for summary judgment. The motion to strike is also fully briefed. The plaintiff has also filed various other motions.

Whereupon the Court, having read and examined the motions for summary judgment, the ancillary motions and the responses to all such motions, and being duly advised, now makes its rulings.

For the purpose of organizing these rulings the Court will first summarize the complaint, identify the parties and the basis for jurisdiction over the claim, analyze the ancillary motions and then discuss the dispositive motions.

I. Introduction

A. Background

Gerard Schaefer is an inmate in a Florida prison serving two (2) concurrent life sentences for the murders of Susan Carole Place and Georgia Jessup. Defendant Michael Newton is the author of a book entitled Hunting Humans: The Encyclopedia of Serial Killers ("the book"). Defendant Avon Books is a division of The Hearst Corporation and published Newton's book in softcover.

Plaintiff Schaefer seeks compensation for the defamation he claims to have suffered through the defendants' actions in writing and publishing the book. He was mentioned in this book in an unflattering way. The action, therefore, is for defamation. Jurisdiction is invoked pursuant to the diversity statute, 28 U.S.C. § 1332(a)(1), with Schaefer being a citizen of Florida, Newton a citizen of Indiana and Avon Books a citizen of a state other than Florida. Schaefer seeks an injunction barring further publication and distribution of the book and five million dollars in compensatory and punitive damages from each defendant.

B. Procedural Posture and Pending Motions

Plaintiff Schaefer was granted leave to proceed in forma pauperis in this action. He is proceeding without counsel but has consistently displayed vigor and adeptness in pressing his claims in this action. The defendants have appeared by counsel and have answered the complaint.

The motions which now pend, and which are fully at issue, and the date on which each was filed are the following:

                Plaintiff's Motion for Summary    April 6, 1994
                Judgment
                Defendants' Cross Motion for      April 19, 1994
                Summary Judgment
                Defendants' Motion to Strike or   June 15, 1994
                Disregard
                Plaintiff's "Objection to Use of  June 24, 1994
                Materials"
                Plaintiff's Objection to Raising  June 24, 1994
                Issues
                

The latter three (3) of these motions are ancillary to the cross motions for summary judgment and must be ruled on before the dispositive motions can be decided.

II. The Ancillary Motions

A. Plaintiff's Objections to Use of Materials and to Raising Issues

The plaintiff filed two "objections" on June 24, 1994. The content of these objections is, to some extent, related. The Court will address the specifications within these objections rather than treat each document separately.

One point on which Schaefer denounces the defendants' arguments is that the defendants continue to describe this action as "frivolous." This warrants only the observation that the defendants have used the term in argument as argument. They are permitted to characterize the plaintiff's claims in this fashion and their doing so is not construed by the Court as a reference to an action which is frivolous within the meaning of 28 U.S.C. § 1915(d), for that question has already been answered.

The second element of the Shaefer's objections is his reply to the defendants' argument that he did not file a statement of genuine issues of facts — the reply being that since he is proceeding pro se he should not be held to a standard "for which he is not trained or familiar with sic." The problem with this reply is that Local Rule 56.1 does exist, that it serves an important purpose and, most important here, that Schaefer was notified by the defendants' attorney in plain English of the existence and requirements of Local Rule 56.1. There is little doubt of the plaintiff's knowledge of court proceedings in general, of the manner in which to oppose motions and requests of his adversaries and of comprehending through plain English a rule which imposes only a modest burden in this case.¹

Yet another theme of the objections is that the defendants are not entitled to prevail in this action. Schaefer asserts that there is no truth in what the defendants have written or published insofar as there is a link between himself and 20 murdered persons. This will be treated as further argument relative to the dispositive motions.

The main thrust of the objections, however, is to attack the defendants' use of materials which Schaefer claims (1) were ordered sealed by a Florida state court and (2) are used out of context. The materials are asserted to be used in the defendants' reply to Schaefer's response to the cross motion for summary judgment. The Court does not readily discern precisely what documents this objection refers to for the simple reason that the defendants' reply did not include any new documents and the documents of a nonpublic nature which are attached to the objection were not submitted with the defendants' materials opposing Schaefer's motion for summary judgment.

The Court surmises that Schaefer's own letter identified as Exhibit 25 to the "second verified declaration of Michael D. Newton" is the document (a letter written to Schaefer from Sondra London) to which the objections filed June 24, 1994 refer. Even if this is correct, however, the other document Schaefer attaches in one of those objections, a copy of the Circuit Court for the Eighth Judicial Circuit in Florida in No. 92-2036-CA, merely ordered a brief sealed in that case. That order does not describe the brief or the rationale warranting this action. More important here are the facts that the order (1) does not identify whose brief was sealed, (2) shows that of the parties to this action only Schaefer himself was a party to No. 92-2036-CA and (3) neither purported to nor could limit the transmission or use of information in the public arena. If Newton acquired this information in violation of a court order Schaefer may have a remedy in that forum for the vindication of that order against party(ies) bound by that order. This is not that forum and hence Schaefer can lodge no effective objection to the defendants' reliance on information obtained from Sondra London.

Thus, Schaefer's objections filed June 24, 1994 are denied to the extent that they can be construed to seek specific relief other than an outcome favorable to him.

B. Defendants' Motion to Strike or Disregard

The Motion. Schaefer has supported his own motion for summary judgment and opposed the defendants' cross motion for summary judgment with myriad evidentiary materials. The parties are in disagreement concerning whether much of these are proper.

Applicable Law. "Supporting materials designed to establish issues of fact in a summary judgment proceeding `must be established through one of the vehicles designed to ensure reliability and veracity — depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence.'" Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir.1987), quoting Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 139 (7th Cir.1985). Affidavits must 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. Fed.R.Civ.P. 56(e). This rule "demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted." Hadley v. County of DuPage, 715 F.2d 1238, 1243 (7th Cir.1983).

Inadmissible hearsay contained in affidavits may not be considered. Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986). Conclusory statements or indications of opinion or belief offered without any factual support are also insufficient to create a genuine issue of fact. Palucki v. Sears, Roebuck, & Co., 879 F.2d 1568, 1572 (7th Cir.1989).

Analysis. Schaefer has submitted his own verified declaration, to which many documents are attached. He has also submitted myriad other documents which ostensibly bear on his claim in this case (although many simply relate to problems he has had pursuing a literary career while in prison). The defendants list the exhibits and there is no purpose in repeating that list since they all suffer from the same defect.

The many documents Schaefer has submitted are unauthenticated and subject to being stricken on that basis. Even after the motion to strike was filed Schaefer sought to defend his submission of deficient materials rather than rehabilitate them through a process of identification.

The plaintiff's opposition to striking the foregoing misses the mark. The fact that he believes portions or all of the information intended to be conveyed in these materials is not the standard by which we must assess those materials under Rule 56(e). Nor is there a less formidable test for accepting the materials of pro...