Janis v. Wilson, CIV 73-5073.

• Decision Date: 11 December 1974
• Docket Number: No. CIV 73-5073.,CIV 73-5073.
• Parties: Geraldine JANIS et al. v. Dick WILSON, etc., et al.
• Court: U.S. District Court — District of South Dakota

385 F. Supp. 1143

Geraldine JANIS et al. v. Dick WILSON, etc., et al.

No. CIV 73-5073.

United States District Court, D. South Dakota.

December 11, 1974.

COPYRIGHT MATERIAL OMITTED

Ramon Roubideaux, Rapid City, S. D., Robert J. Doyle, Cambridge, Mass., for plaintiffs.

Dennis H. Hill, Rapid City, S. D., for defendants.

MEMORANDUM OPINION

BOGUE, District Judge.

The above matter has come before this Court pursuant to defendants' motion for summary judgment. Counsel for all parties appeared before this Court on October 8, 1974, and a full hearing was held. On November 12, 1974, the plaintiffs moved to amend their complaint by joining the Oglala Sioux Tribe as party defendant and the plaintiffs' motion to amend was granted.

The plaintiffs are members of the Oglala Sioux Tribe and are former tribal government employees under the Community Health Representative Program (C.H.R.) located on the Pine Ridge Indian Reservation in South Dakota. The defendants include the Oglala Sioux Tribe and three tribal officers. The tribe through Executive Committee action terminated the plaintiffs' employment on April 5, 1974, because plaintiffs allegedly were participating in political demonstrations during working hours on February 22 and 23, 1973. The plaintiffs allegedly drew full wages and were not granted leave time for February 22 or 23.

The plaintiffs claim that the Tribe, in terminating their employment, violated Tribal Ordinance 71-05, 25 U.S.C. § 1302(1, 8), and the free speech and due process clauses of the First and Fifth Amendments to the United States Constitution. The plaintiffs request that this Court order the defendants to reinstate their former tribal employment, to remove from their personnel files all record of their discharge, and to permanently enjoin the defendants from using such records against the plaintiffs in the future. The plaintiffs further request that this Court grant them back wages from April 5, 1974, and award $5,000.00 to each plaintiff for emotional and psychological damage, and $15,000.00 to each plaintiff for punitive damages.

The principles which govern the disposition of defendants' motion for summary judgment are well established. The summary judgment procedure provided by Rule 56 of the Federal Rules of Civil Procedure is designed for the prompt disposition of an action where there is no genuine issue regarding any material facts, thus avoiding a useless trial to prove facts which are not actually disputed. The rule contemplates an inquiry in advance of trial as to whether there is a genuine issue and may be invoked for the purpose of striking sham claims and defenses which obstruct a prompt determination of the truth. It cannot be so applied as to deprive a litigant of his right to try any genuine issue by jury or otherwise. The proceeding on motion for summary judgment is not to be regarded as a trial, but for the determination of whether or not there is a genuine issue to be tried. Parmelee v. Chicago Eye Shield Co., 157 F.2d 582, 584-585 (8th Cir. 1946).

A summary judgment upon motion by a defendant in an action should not be granted except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plaintiff, or demonstrated beyond a reasonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. A summary judgment is an extreme remedy, and, under the rule, should be awarded only when the truth is quite clear, and all reasonable doubts raised as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. United States v. Farmers Mut. Ins. Ass'n of Kiron, Iowa, 288 F.2d 560, 562 (8th Cir. 1961); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213, 216 (8th Cir. 1951); Warner v. First National Bank of Minneapolis, 236 F.2d 853, 857 (8th Cir. 1956).

Rule 56(c) of the Rules of Civil Procedure provides that a summary judgment shall be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that except for the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. When affidavits are offered in support of a motion for summary judgment, they must present admissible evidence, and must not only be made on the personal knowledge of the affiant, but must show that the affiant possesses the knowledge asserted. Walling v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943).

Allegations in the pleadings do not create an issue as against a motion for summary judgment supported by affidavits. The very object of the summary judgment procedure, as then Judge Cardozo said, is to "separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial." Richard v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111 (1923), Wright, Law of Federal Courts, 444 (2d Ed. 1970). Accordingly, Rule 56 of the Federal Rules of Civil Procedure states:

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. Fed.R.Civ.P. 56(e).

Thus it is, of course, error to deny trial when there is established a genuine dispute of facts; but it is just as much error and perhaps more, in cases of hardship, to deny or postpone judgment where the ultimate legal result is clearly indicated. Arnstein v. Porter, 154 F.2d 464, 478 (2nd Cir. 1946).

The following facts, material to the issues presented in this case, are not in dispute and are therefore deemed to be established. (1) Pursuant to a contract between the United States of America, Department of Health, Education and Welfare, and the Oglala Sioux Tribe, a Community Health Representative (C. H.R.) program was instituted on the Pine Ridge Indian Reservation. This program has been in operation and administered by the tribe since 1965 and has continuously been in operation to the present time. See plaintiffs' amended complaint, paragraph 12. (2) Plaintiff Geraldine Janis was hired on March of 1965 and at the time of her termination she held the position of supervisor-coordinator of the program. Plaintiff Della Starr was hired in March of 1965 and at the time of her termination she held the position of community representative in the C.H.R. program. Plaintiff Victoria Wounded Foot was hired in 1970 and at the time of her termination she also was a community representative in the C.H.R. program. Plaintiff Minerva Walks Out was hired in 1972 and at the time of her termination she held the position of clerk-secretary in the C. H.R. program. See plaintiffs' amended complaint, paragraph 13. (3) All plaintiffs and all defendants are American Indians and members of the Oglala Sioux Tribe, and all reside on the Pine Ridge Indian Reservation in South Dakota. (4) During the period of time material to this case, defendant Wilson was the President of the Oglala Sioux Tribe, defendant Nelson was the Treasurer, defendant Eaglebull was the Secretary, and all three defendants were members of the tribal Executive Board of the Oglala Sioux Tribe. See plaintiffs' complaint, paragraphs 8, 9, and 10. (5) On February 22, 1973, plaintiffs participated with others in public political demonstrations in front of the Oglala Sioux Tribal office and on February 23 in front of the Bureau of Indian Affairs office. Plaintiffs admit in paragraph 16 of their amended complaint that "at several times during the months of February and March, plaintiffs and other participated in small picket lines and demonstrations." (6) On April 4, 1973, defendants Wilson, Nelson and Eaglebull, who together constitute the Executive Committee of the Oglala Sioux Tribe, met in regular session, and upon the recommendation of Mr. Witt, the O. S.T. Court Prosecutor, terminated the plaintiffs' employment by unanimous decision for the reason that "These persons, by public demonstrations, advocated the overthrow of the Tribal Government and the Executive Committee feels that these persons are not drawing salary from the C.H.R. program for such actions during regular working hours." Notice of termination was served upon plaintiffs on April 9, 1973. See defendants' exhibit item 12(5); 12(b); and plaintiffs' amended complaint, exhibit B. (7) Plaintiffs admit that they participated in such political demonstrations on February 22 and 23, 1973. Plaintiffs attempt to defend their action and thereby show that their termination of employment was wrongful by alleging that they gained prior approval from Mr. Eastman and Mr. Lyman. See plaintiffs' amended complaint, paragraphs 16 and 18.

The plaintiffs have not submitted affidavits or other proof to support these bare allegations and even if such allegations are true, they are immaterial because Mr. Eastman and Mr. Lyman are employees of the Bureau of Indian Affairs and have no authority to grant the plaintiffs, who are tribal employees, leave to participate in public political demonstrations during working hours.

Plaintiffs also attempt to defend their actions by alleging that they only participated in demonstrations at times when they were on approved annual leave and not during working time. See plaintiffs' amended complaint, paragraph 19.

Again plaintiffs did not submit affidavits or other proof at the summary judgment hearing to support these bare allegations. Defendants, on the other hand, have...