Marozsan v. US, Civ. No. 3:84cv0500 AS.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation849 F. Supp. 617
Docket NumberCiv. No. 3:84cv0500 AS.
PartiesStephen S. MAROZSAN, Plaintiff, v. UNITED STATES of America, the Veterans Administration, A.P. Cowan, W.R. Gladding, M.D., P. Moncure, James F. Sponzo, R.L. Hornbarger, J. Higgins, Dr. B. Gardner, Sydney J. Shuman, Max Cleland and H.M. Walters, Defendants.
Decision Date22 February 1994




Stephen S. Marozsan, pro se.

Clifford D. Johnson and J. Philip Klingeberger, Dyer, IN, for defendants.


ALLEN SHARP, Chief Judge.


The great Civil War historian, Kenneth P. Williams, quoted a letter from Abraham Lincoln to one of his generals:

"I regret to find you denouncing so many persons as liars, scoundrels, fools, thieves, and persecutors of yourself." Letter to Major General James G. Blunt. Kenneth P. Williams, Lincoln Finds a General, Vol. V, p. 106 (1959).

Such is an important backdrop to this case which is about to have its tenth anniversary on the docket of this court. This court takes full judicial notice of all proceedings in this case, including the appellate proceeding and particularly the en banc decision reported in Marozsan v. United States, 852 F.2d 1469 (7th Cir.1988). Given the demands of the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471-482, and the regular work ethic of this court, a superficial examination of this record might cause one to question why it has taken so long since the decision of the Court of Appeals to once again address the issues in this case in finality. A closer examination of the record in this case will indicate variously and in detail why it has taken so long to arrive at this point, and this court is not the least apologetic about it.

This plaintiff is pro se, although he has had a series of lawyers representing him at various stages of these proceedings. This court is all too familiar with the demands of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), which have been most recently explicated in a highly common sense fashion by Justice Stevens in McNeill v. United States, ___ U.S. ___, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), as follows:

It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see Haines v. Kerner, 404 U.S. 519 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Estelle v. Gamble, 429 U.S. 97 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and have held that some procedural rules must give way because of the unique circumstance of incarceration, see Houston v. Lack, 487 U.S. 266 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (pro se prisoner's notice of appeal deemed filed at time of delivery to prison authorities), we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.
As we have noted before, "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980).

Following massive and extremely time-consuming proceedings on the defendant's motion for summary judgment, Magistrate Judge Robin D. Pierce entered his Report and Recommendation which generated an elaborate filing by the plaintiff on January 21, 1994, and a response thereto by the defendant, United States of America, on February 10, 1994. The beginning point for analysis here must be the narrow but significant window of opportunity afforded by the majority opinion in Marozsan v. United States, 852 F.2d at 1479, fn. 22. Certainly, there is nothing in the majority opinion or mandate of the Court of Appeals which prohibits the consideration of the issues there defined in the context of Rule 56 of the Federal Rules of Civil Procedure. To the contrary, fn. 22, supra, invites same.


Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993).

A thorough discussion of Rule 56 by the Supreme Court of the United States can be found in a trilogy of cases decided in 1986. See, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)1; and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56). A material question of fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine material issue for trial.'" Id. The nonmoving party cannot rest on its pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.1991), or upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992). "The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party's summary judgment motion." Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990).

During its analysis, this court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991). Furthermore, it is required to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-255, 106 S.Ct. at 2512-14.

The 1986 Supreme Court trilogy was recently re-examined in Eastman Kodak v. Image Technical Services, ___ U.S. ___, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), a case born in the context of antitrust law. The most that can be said for Kodak is that it did not tinker with Celotex and Anderson, and possibly involves an attempt to clarify Matsushita. This view is well supported by an in-depth academic analysis in Schwarzer, Hirsch, and Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441 (1992).


It is readily apparent that Magistrate Judge Pierce has spent literally hundreds of judicial hours in attempting to sift through a most difficult record, made no less so by the frequent accusatory and acrimonious assertions by this pro se plaintiff. One must respect the service that this plaintiff has rendered to his nation, and can understand perhaps even empathize with some of his frustrations. However, it is the sworn duty of this court under Article III of the Constitution of the United States to apply the law as even-handedly as possible to all litigants, including pro se ones.

As a general proposition, this court is in full agreement with the careful analysis, reasoning and result outlined by the magistrate judge on December 10, 1993. The court chooses to make some additional comments but in no way are these comments to be interpreted as any criticism of or disagreement with Magistrate Judge Pierce.

Very recently, another judge of this court has most carefully delineated the proper standards to be applied under Rule 56 in Hayden v. La-Z-Boy Chair Co., 838 F.Supp. 384 (N.D.Ind.1992). Specifically, Judge Lee very correctly emphasized that in order to determine the existence of a genuine issue of material fact:

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed. R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt, as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. Id. p. 387.

Apparently, a renewed effort is made here to challenge the constitutionality of 38 U.S.C. § 211(a), as follows:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects

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