Gonzales v. North Tp. of Lake County, Civ. No. H83-402.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: LOZANO
• Citation: 800 F. Supp. 676
• Decision Date: 28 July 1992
• Docket Number: Civ. No. H83-402.
• Parties: Rosemary GONZALES, et al., Plaintiffs, v. NORTH TOWNSHIP OF LAKE COUNTY, an Indiana Municipal Entity, et al., Defendants.

800 F. Supp. 676

Rosemary GONZALES, et al., Plaintiffs,
v.
NORTH TOWNSHIP OF LAKE COUNTY, an Indiana Municipal Entity, et al., Defendants.

Civ. No. H83-402.

United States District Court, N.D. Indiana, Hammond Division.

July 28, 1992.

800 F. Supp. 677

COPYRIGHT MATERIAL OMITTED

800 F. Supp. 678

Ivan E. Bodensteiner, Valparaiso, Ind., Gregory R. Lyman, Munster, Ind., for plaintiffs

Anthony DeBonis, Jr., East Chicago, Ind., Deborah L. Szczepanski, Merrillville, Ind., for defendants.

MEMORANDUM OPINION AND ORDER

LOZANO, District Judge.

This matter is before the Court on the Plaintiffs' Motion for Partial Summary Judgment, filed January 31, 1985; the Defendants' Motion for Summary Judgment, filed April 4, 1985; and the Defendants' Motion to Strike, filed April 4, 1985. For the reasons set forth herein, the Plaintiffs' Motion for Partial Summary Judgment is DENIED; the Defendants' Motion for Summary Judgment is GRANTED; and the Defendants' Motion to Strike is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Wicker Memorial Park ("the Park") is a public park owned and maintained by North Township, Lake County, Indiana ("the Township").¹ A plaque on the wall of the clubhouse in the Park commemorates the Park's dedication in 1927, and bears the words of former President Calvin Coolidge:

As the inhabitants of North Township repair to this park in years to come, as they are reinvigorated in body and mind by its use, as they are moved by the memory of the heroic deeds of those to whom it is dedicated, may they become partakers and promoters of a more noble, more exalted, more inspired American life.

(See Defendants' answers to Interrogatories Nos. 2, 3, 13 of Plaintiffs' First Interrogatories.)

800 F. Supp. 679

In October 1955, a monument was erected in the southeast corner of the Park, within approximately forty-five (45) yards of the intersection of Ridge Road and U.S. Highway 41 (the "Monument").² (See Defendants' answer to Plaintiffs' Request for Admissions, No. 1.) The Monument is in the form of a crucifix and is approximately sixteen feet (16') high, seven feet—ten inches (7'10") wide, and stands on a cement base which is two feet (2') high. The figure on the cross is six feet (6') tall and six feet (6') wide. (See Appendix to this Opinion and Defendants' answer to Interrogatory No. 18 of the Plaintiffs' First Interrogatories.) The Monument also bore a plaque, which had originally been attached to the base of the Monument. The plaque, which was twelve inches by twenty-four inches (12" × 24"), was dated October 16, 1955, and bore the following inscription: "For God and Country. Dedicated to the memory of men and women whose love for this nation enabled them to make the supreme sacrifice of life itself in its defense." (See Appendix, Defendants' answers to Interrogatories Nos. 13 and 15 of Plaintiffs' First Interrogatories; see also the photograph which is described as Attachment No. 1 and which is attached to the verified statement in support of Motion for Partial Summary Judgment filed as Exhibit A to the Plaintiffs' Memorandum in Support of Motion for Partial Summary Judgment, filed January 31, 1985.) The plaque was discovered to be missing on or about November 21, 1983. (See Defendants' answers to Interrogatories Nos. 1(a) and (d) of Plaintiffs' First Interrogatories.)

The Plaintiffs, who are all citizens of the United States and residents of North Township, Lake County, Indiana, filed this suit under 42 U.S.C. § 1983 claiming that "by maintaining a religious symbol of the Catholic church in the Park at public expense, the Defendants have caused injury to the Plaintiffs by infringing their use and enjoyment of Wicker Memorial Park and offending their moral and religious sensitivity." (See Complaint, ¶ 8.) The Plaintiffs' request that the Court: (1) issue a declaratory judgment that the presence and maintenance of the Monument in the Park violates the First Amendment to the United States Constitution; (2) issue a permanent injunction enjoining the Defendants from maintaining the Monument in the Park and requiring the Defendants to remove the Monument from the Park; and (3) award Plaintiffs' damages, costs and attorney's fees. The Defendants, North Township of Lake County, an Indiana municipal entity, and Gregory Cvitkovich³ the Trustee of North Township, contend in their Motion for Summary Judgment that, with the exception of Plaintiff, Louis Appleman, Plaintiffs, Rosemary Gonzales, Harry Levin, Melvin Schlesinger, and Richard Vanorman, lack standing to bring this cause of action, and that the statute of limitations bars each of the Plaintiffs from bringing this action. The Defendants also argue that, in any event, the presence of the Monument in the Park does not violate the Establishment Clause of the United States Constitution.

DISCUSSION

Defendants' Motion to Strike Exhibits "B" and "C" Attached to the Plaintiffs' Memorandum in Support of Motion for Partial Summary Judgment

The Defendants contend that Exhibits "B" and "C" attached to the Plaintiffs' Memorandum in Support of Motion for Summary Judgment, filed January 31, 1985, must be stricken because they do not conform to the requirements of Rule 56(e) of the Federal Rules of Civil Procedure. Plaintiffs' Exhibit "B" is a letter from Constant H. Jacquet, Jr., Staff Associate for Information Services of the National Council of the Churches of Christ in the U.S.A. and editor of the Yearbook of American and Canadian Churches, to the Plaintiff, Melvin Schlesinger, dated January 18, 1985. Jacquet's letter to the Plaintiff, Schlesinger, contains the following prefatory statement:

800 F. Supp. 680

The information supplied below comes from my personal knowledge of religious practices of various religious bodies and from conversations with officials and other informed members of the religious bodies themselves. I believe the following statement to be an accurate generalization on the use of the crucifix and cross in various religious bodies....

(See Exhibit "B"). The Plaintiffs contend that the Defendants' Motion to Strike Exhibit "B" must be denied because the letter from Constant H. Jacquet, Jr. is intended to be a statement of an expert.

Rule 56(e) of the Federal Rules of Civil Procedure provides in relevant part that:

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 papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

"An affidavit submitted in connection with a summary judgment motion is subject to a motion to strike if it does not measure up to the standards of Rule 56(e)." Southern Concrete Co. v. United States Steel Corp., 394 F.Supp. 362, 380 (N.D.Ga.1975), aff'd, 535 F.2d 313 (5th Cir.1976). "Affidavits must be made upon personal knowledge, be devoid of hearsay, conclusory language, and statements which purport to examine thoughts as well as actions." Carey v. Beans, 500 F.Supp. 580, 583 (E.D.Pa.1980), aff'd, 659 F.2d 1065 (3rd Cir.1981).

Familiarity with the proceedings does not equal the personal knowledge required for an affidavit under Rule 56(e). Walpert v. Bart, 280 F.Supp. 1006, 1010 (D.Md.1967), aff'd, 390 F.2d 877 (4th Cir. 1968). Moreover, "belief, no matter how sincere, is not equivalent to knowledge, and ... the facts set forth in an affidavit in opposition to a motion for summary judgment must be such as would be admissible in evidence should they be given from the witness stand during the trial of a case." Lark v. West, 182 F.Supp. 794, 798 (D.D.C.), aff'd, 289 F.2d 898 (D.C.App. 1960), cert. denied, 368 U.S. 865, 82 S.Ct. 114, 7 L.Ed.2d 63 (1961). "It is clear that an affidavit made on information and belief cannot support on summary judgment the averments it attempts to uphold." Walpert, 280 F.Supp. at 1010 (quoting Schoenbaum v. Firstbrook, 268 F.Supp. 385, 390 (S.D.N.Y.1967), aff'd, 405 F.2d 200 (2d Cir.1968)). "Statements prefaced by the phrases, `I believe' or `upon information and belief or those made upon an `understanding', ... are properly subject to a motion to strike." Carey, 500 F.Supp. at 583.

Jacquet's letter, which the Plaintiffs appear to seek to introduce as the opinion of an expert, contains personal knowledge as well as inadmissible hearsay. Rule 56(e) "requires that affidavits in support of or opposition of a summary judgment motion set forth facts that would be admissible in evidence. It is well-established that hearsay evidence in such affidavits is entitled to no weight." Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981). In such cases, where admissible information is co-mingled with inadmissible information, "the rule is settled that on a motion for summary judgment a court will disregard only the inadmissible portions of a challenged affidavit offered in support of or opposition to the motion and will consider the admissible portions in determining whether to grant or deny the motion." Lee v. National Life Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir.1980) (citations omitted). In this case, however, it is impossible to distinguish Jacquet's knowledge from the hearsay contained in the affidavit. As one district court has held,

While the court may strike or disregard the inadmissible portions of such affidavit not in conformity with the rule and consider the rest of the affidavit, the entire affidavit may be disregarded if inadmissible matter is so interwoven or inextricably combined with the admissible portions that it is impossible, in the practical sense, to separate them.

800 F. Supp. 681

Southern Concrete, 394 F.Supp. at 380-381. Moreover, this Court finds Jacquet is not qualified as an expert based on the credentials provided in her...