Bryant v. O'CONNOR

• Decision Date: 02 December 1986
• Docket Number: No. 85-4348.,85-4348.
• Parties: Robert J. BRYANT, Plaintiff, v. Earl E. O'CONNOR and Perry D. Mathis, Defendants.
• Court: U.S. District Court — District of Kansas

671 F. Supp. 1279

Robert J. BRYANT, Plaintiff, v. Earl E. O'CONNOR and Perry D. Mathis, Defendants.

No. 85-4348.

United States District Court, D. Kansas.

December 2, 1986.

Fred W. Phelps, Sr., and Fred W. Phelps, Jr., Phelps, Chtd., Topeka, Kan., for plaintiff.

Benjamin L. Burgess, Jr., U.S. Atty., Alleen S. Castellani, Asst. U.S. Atty., Topeka, Kan., Marianne Finnerty/Timothy Garren, and Nicki L. Koutsis, Torts Branch, Civ. Div., Department of Justice, Washington, D.C., for defendants.

ORDER

BRIMMER, Chief Judge.

This matter came before the Court on defendants' motion to dismiss or for summary judgment. The Court, having reviewed the pleadings and being fully advised in the premises, FINDS and ORDERS as follows:

This is an action for damages and injunctive relief. Plaintiff, Robert Bryant, is a former probation officer for the United States District Court for the District of Kansas. Defendants are the Chief Judge and the Chief Probation Officer for the District of Kansas. Bryant alleges that the defendants terminated his employment and denied him equal employment opportunities because he is black, in violation of the first and fifth amendments to the United States Constitution and in violation of 42 U.S.C. § 1981. Bryant also alleges that he was discharged in retaliation for complaining about racial discrimination. Bryant further alleges that a decision by the judges of the District of Kansas to disqualify themselves from hearing this case constituted an unlawful conspiracy to interfere with his access to the courts, in violation of 42 U.S.C. § 1985(2), (3).

Defendant Mathis, Bryant's immediate supervisor, suspended Bryant for disciplinary reasons on October 26, 1984. Defendants' Exhibit A. Bryant wrote to Chief Judge O'Connor and requested a hearing. Defendants' Exhibit B. Mathis recommended to Chief Judge O'Connor that Bryant be discharged as a probation officer for gross negligence in carrying out his duties and for failing to maintain adequate records. The judges of the district convened en banc to consider the recommendation that Bryant be fired. The unusually full and complete hearing before all 9 senior and active judges of the district was held on December 28, 1984 in federal district court. Bryant was represented by counsel and a court reporter was present. The Court was very patient, but very thorough. Defendants' Exhibit E. After the hearing, the judges unanimously voted to discharge Bryant effective February 28, 1985. Defendants' Exhibit F. Bryant then requested an investigation by the district's equal employment opportunity coordinator. That investigation concluded that Bryant was discharged because of poor performance and not because of racial animus. Defendants' Exhibit G. Bryant's appeal from that decision was dismissed as untimely. Defendants' Exhibit J.

Bryant then filed this action. The case was assigned to one of the judges of the district court. However, all of the judges in the district (except Chief Judge O'Connor) recused themselves after a meeting on August 16, 1985. See Defendants' Exhibit N. Chief Judge O'Connor then issued an order disqualifying himself. Defendants' Exhibit O. Bryant then amended his complaint, alleging that the en banc decision of the judges of the District of Kansas to disqualify themselves from hearing this case constituted an unlawful conspiracy to interfere with his access to the courts, in violation of 42 U.S.C. § 1985(2), (3).

Defendants move to dismiss or for summary judgment. Defendants contend that Chief Judge O'Connor is entitled to judicial immunity, that Mathis is entitled to quasi-judicial immunity, that Bryant has neither a statutory nor an implied remedy, and that Bryant was discharged for legitimate, nondiscriminatory reasons. Oral argument of that motion has not been held, pursuant to Rule 15(d) of the Rules of Practice of the United States District Court for the District of Kansas. The motion raises matters beyond the pleadings and will therefore be treated as one for summary judgment. Fed.R.Civ.P. 12(b).

The Court, in an effort to resolve plaintiff's request for extensive discovery involving depositions of all of the Kansas judiciary, issued an "Order on Motions", dated February 27, 1986, ordering plaintiff to file a specific discovery plan, limited to responding to defendants' motion to dismiss or for summary judgment. On March 10, 1986 the plaintiff filed a proposed discovery plan, to which the defendants filed an objection. On March 28, 1986 the Court entered its "Order on Motions for Discovery", giving the plaintiff one more chance to comply with the order of February 27, 1986, by granting the plaintiff ten (10) additional days in which to file affidavits stating specific probative facts supporting the allegations of the complaint and which were necessary under Fed.R. Civ.P. 56(e), and staying discovery until such time as the Court rules on the motion to dismiss. From that order the plaintiff filed a Writ of Mandamus to the Court of Appeals for the Tenth Circuit which was denied on April 16, 1986. The plaintiff filed a motion for a rehearing thereof and reconsideration in en banc, which was denied on June 13, 1986. It was then on June 27, 1986 that the Court entered its "Order on Denial of Motions For Rehearing En Banc" in which it ordered the plaintiff to file within ten (10) days from the filing date of that order the plaintiff's response to the previous order of February 27, 1986 and to file affidavits required by Rule 56(e), F.R. C.P., in response to the defendants' motion to dismiss or for summary judgment. By the latter order the plaintiff was given a final third opportunity to show compliance with Rule 11, of Fed.R.Civ.P., and to file an appropriate response to defendants' motion for summary judgment. Again the plaintiff has failed to comply. The Court has examined the plaintiff's compliance filed July 11, 1986 and finds it unsatisfactory, conclusory, largely irrelevant, and inadequate. It fails also to comply with Local Rule 15(c) specifying the manner in which a party opposing summary judgment must respond. Nevertheless, the Court has considered it for whatever it is worth. The Court has concluded that no further discovery, before disposition of this case on summary judgment, should occur.

Bryant contends that summary judgment should be denied because defendants failed to comply with Local Rule 15(c) and because discovery is incomplete. Local Rule 15(c) provides that memoranda supporting motions for summary judgment must contain "a concise statement of material facts as to which movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies." Failure to comply with Local Rule 15(c) justifies denying a motion for summary judgment. Love v. Phillips, No. 83-4103, slip op. at 1 (D.Kan. Mar. 26, 1985)

Defendants' memorandum in support of the motion for summary judgment includes a section entitled "Statement of Facts" which concisely states the facts which defendants claim are undisputed. Defendants cite to the record with particularity. Defendants did fail to number each sentence in the statement. This omission, however, does not prejudice the plaintiff or hamper this Court. The purpose of Local Rule 15(c) is to enable opposing counsel to determine the facts relied upon by a movant for summary judgment. Powell v. United States Postal Serv., No. 81-1108, slip op. at 2 (D.Kan. Nov. 2, 1983). Here, defendants' statement of facts is sufficiently clear to enable counsel and this Court to determine defendants' factual contentions without sifting through the pleadings. Defendants' failure to number each sentence does not frustrate the purpose of Local Rule 15(c) and does not require denial of the motion for summary judgment.

Bryant also argues that summary judgment is inappropriate because discovery is incomplete. Discovery is strongly favored before summary judgment is granted. Miller v. United States, 710 F.2d 656, 666 (10th Cir.1983). A party who is unable to present specific facts in opposition to the motion may avoid summary judgment by filing an affidavit pursuant to Fed.R.Civ.P. 56(f). Weir v. Anaconda Co., 773 F.2d 1073, 1082 (10th Cir.1985). Rule 56 does not require, however, that summary judgment await the completion of discovery. Id. at 1081.

Bryant's counsel filed an affidavit pursuant to Fed.R.Civ.P. 56(f). The affidavit states that affiant is one of the plaintiff's attorneys, that the affidavit was filed in good faith and that the motion to dismiss should be treated as one for summary judgment. The affidavit further states that:

A barrier which has prevented plaintiff from discovering the factual information necessary to combat defendants' summary judgment motion is that the case has just recently been filed, that final service has more recently been made, and no discovery has been taken, although plaintiff has attempted to commence written discovery. Further, that plaintiff requires discovery, specifically the written discovery now pending, the deposition of the named defendants, the deposition of one or more federal judges in Kansas, the deposition of one or more federal court personnel in Kansas, the deposition of one or more employee sic of the United States Probation Office in Kansas, and otherwise, to fully respond to said summary judgment motion.

This averment does not justify postponing summary judgment. Bare assertions under Rule 56(f) may not forestall a motion for summary judgment. Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir.1984). The party filing the affidavit must show how additional time will permit rebuttal of a movant's assertions. Id. at 1265. The affidavit filed by plaintiff's counsel fails to show why additional time will enable the plaintiff to rebut defendants' arguments.

Other factors suggest that the affidavit is specious. An attorney's signature on a...