McNeal v. Macht

Decision Date03 May 1991
Docket NumberNo. 88-C-1254.,88-C-1254.
Citation763 F. Supp. 1458
PartiesAldwin T. McNEAL, Plaintiff, v. Phil MACHT, Jay Sandstrom, Patricia Goodrich, Joseph Siebel, and Jean Holland, et al., Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

Aldwin T. McNeal, pro se.

James E. Doyle, Atty. Gen. by David E. Hoel, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

On November 25, 1988, the plaintiff, currently incarcerated at the Wisconsin Resource Center, filed this action seeking declaratory relief and money damages under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. The defendants are employees of the State of Wisconsin who have been named only in their individual capacities; they have filed a motion for summary judgment, supported with affidavits and exhibits. The motion will be granted in part and denied in part.

I.

As a threshold matter, the defendants assert that the plaintiff has failed to raise a genuine issue of material fact simply because he has proffered no documentary evidence contradicting the factual assertions of the defendants in opposition to their motion for summary judgment. The plaintiff has filed only a brief, unaccompanied by any sworn statements or evidentiary materials, in opposition to the defendants' motion. In their reply, the defendants further contend, quite correctly, as follows:

Plaintiff has offered no admissible proof in the form of affidavits or documentary evidence with his brief. All plaintiff's brief does is recount facts alleged in his complaint and allude to "facts" and documents which are not in the record and properly before the court.

Defendants' Reply Brief at 2.

It may be that in most cases the plaintiff's failure to oppose a defendants' motion for summary judgment with evidentiary materials would obligate a determination that there is no genuine issue of material fact for trial. However, this is a case in which the Federal Rules of Civil Procedure, a local rule adopted by this district court, the pro se civil rights form complaint required by this district court, and a federal statute combine to call for a different result.

A.

Summary judgment procedure in the federal courts is governed by Rule 56, Federal Rules of Civil Procedure. Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further states:

... When a summary judgment motion is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavit or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial.

The Supreme Court has acknowledged that "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves...." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (emphasis added).

The various branches of this district court have collectively undertaken to refine summary judgment procedure in pro se litigation through local rules of practice and procedure, see Local Rule 6, Section 6.04. See also Rule 83, Federal Rules of Civil Procedure (enabling district courts to make rules governing practice not inconsistent with the Federal Rules). The relevant local rule, in pertinent part, states as follows:

If a party is proceeding pro se in civil litigation, and the opposing party files a motion for summary judgment, counsel for the movant shall comply with the following procedure:
1. The motion shall include a short and plain statement that any factual assertion in the movant's affidavit(s) will be accepted by the court as being true unless the party unrepresented by counsel submits his own affidavit(s) or other documentary evidence contradicting the factual assertion.
2. In addition to the foregoing statement, the text to Fed.R.Civ. P. 56(e) and (f) shall be part of the notice.

Local Rule 6, Section 6.04.

The branches of this court have also collectively approved a form "Complaint Under the Civil Rights Act, 42 U.S.C. Sec. 1983" ("form complaint"). Prospective pro se plaintiffs are "required" to submit their claims on the form complaint. See Local Rule 12, Section 12.02 (governing pro se prisoner claims). Among other things, the form complaint calls for the prospective pro se plaintiff to make a statement of claim consisting of the "essential facts" of the case, not unlike any complaint. However, the final lines of the form complaint appear as follows:

I declare under penalty of perjury that the foregoing is true and correct

Complaint signed this ____ day of __________, 19 ____. __________________________ (signature of plaintiff(s)).

In this respect, the form complaint invites the pro se plaintiff to make an unsworn declaration that, if properly executed, fully complies with the following federal statute:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the ... affidavit, in writing of the person making the same, such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, ... in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
* * * * * *
(2) If executed within the United States ...: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)

(Signature)".

28 U.S.C. § 1746 (emphasis added) (parenthetical omitted).

B.

The defendants have filed a motion for summary judgment pursuant to Rule 56, and have fully complied with Local Rule 6, Section 6.04. According to the procedures set forth by the Supreme Court, the defendants, as movants, have the burden of showing that there is no genuine issue of fact; however, the plaintiff retains his own burden of producing evidence that would support a jury verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 267, 106 S.Ct. 2505, 2519-20, 91 L.Ed.2d 202 (1986). See also Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552 ("Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.").

However, in opposition to the defendants' motion, the pro se plaintiff, who initiated the action by filing the form complaint, and who later filed an amended form complaint, has rested upon the allegations of those pleadings instead of setting forth specific facts, by affidavit or otherwise, in an effort to show that there is a genuine issue of material fact for trial. See Rule 56(e), Federal Rules of Civil Procedure (the nonmovant "may not rest upon the mere allegations" of his pleadings). Ordinarily, having done so, the pro se plaintiff, who carries the burden of proof, would be deemed to have failed to create a genuine issue of material fact for resolution at trial.

Indeed, the defendants point out that their motion "informed the plaintiff that any factual assertion in the defendants' affidavits would be accepted by the court as being true unless the plaintiff submitted his own affidavits or other documentary evidence contradicting those factual assertions" in compliance with the local rule. Defendants' Reply Brief at 1. They now call for that local rule to work to their benefit. However, they overlook the fact that the rule places restrictions only upon them, the movants. The rule certainly does not purport to impose any additional restrictions upon the pro se plaintiff, nor does it obligate the court to accept as true the factual assertions in the movant's affidavits. The purpose of the rule is simply to ensure that the movant informs the pro se nonmovant of the potential consequences of a failure to proffer the evidentiary materials called for by Rule 56(e).

More significantly, the defendants have also overlooked the effect of 28 U.S.C. § 1746. When a pro se plaintiff has declared in his form complaint under penalty of perjury that, among other things, the factual allegations contained in his statement of claim are true and correct, as called for by 28 U.S.C. § 1746, he ostensibly faces criminal prosecution for perjury should it be proved that he willfully or knowingly made material statements that are false, see 18 U.S.C. §§ 1621, 1623. In return, the statute extends a benefit: the factual allegations of the pro se form complaint must be endowed with the evidentiary force of an affidavit. See 28 U.S.C. § 1746 ("Wherever, ... under any rule ... made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the ... affidavit, in writing of the person making the same, such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, ... in writing of such person which is subscribed by him, as true under penalty of perjury"). In other words, when a pro se plaintiff properly executes such a form complaint, which calls for a declaration in conformity with 28 U.S.C. § 1746, the plaintiff's statement of claim is transformed from "mere allegations" of a pleading into "specific facts" as in an evidentiary affidavit. See, e.g., McElyea v. Babbitt, 833 F.2d 196, 197-98 & n. 1 (9th Cir.1987) (per curiam); Reese v. Sparks, 760 F.2d 64, 67 & n. 3 (3d Cir.1985); Murrell v. Bennett, ...

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