Mullen v. Starr, 79-0454-CV-W-8.

• Decision Date: 23 April 1982
• Docket Number: No. 79-0454-CV-W-8.,79-0454-CV-W-8.
• Citation: 537 F. Supp. 945
• Parties: Leo M. MULLEN, Plaintiff, v. Jon L. STARR, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

537 F. Supp. 945

Leo M. MULLEN, Plaintiff, v. Jon L. STARR, et al., Defendants.

No. 79-0454-CV-W-8.

United States District Court, W. D. Missouri, W. D.

April 23, 1982.

Leo M. Mullen, M.D., plaintiff pro se.

Steve Robey, Robey & Dauer, Providence, Ky., James F. Stigall, Alexander & Stigall, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

STEVENS, District Judge.

There is before the court another journey in the seemingly unending odyssey of Dr. Leo Mullen through the courts of Western Missouri. This action, the tenth civil action revealed by the available records to have been filed by Dr. Mullen in this court and the ninth in three years, seeks the recovery of $946,540.00 as compensatory and punitive damages from two individuals and an association, all unidentified in the body of the complaint, for miscellaneous civil wrongs, the conventional characterization of which is defied by the four corners of the complaint.

Certain words are used in one part or another of the complaint which might justify a "fraud" or "conspiracy to defraud" label: "conspiracy" (par. 1); "wrongfully and maliciously" (par. 3); "agent or co-conspirator" (par. 5); "scheme and conspiracy to defraud" (par. 9); "premeditated, wanton and willful malicious act" (par. 10); "fraudulent acts" (par. 10); "exemplary and punitive damages" (par. 10); "fraudulent and scheming acts" (prayer), all of which are apparently designed to invoke a conclusion that plaintiff is entitled to relief on some unspecified theory or the other.

The difficulty is that this complaint language is all conclusory and is not substantiated by or based on any factual allegations. It is now clear, after considerable jousting by the parties on paper and three depositions for which plaintiff received due notice but which he chose not to attend, that the complaint is conclusory only and frames no fact issues because there are none to frame. For this reason, defendants' motion for summary judgment will be sustained.

There are several features of this matter which bear analysis. First, plaintiff filed his complaint pro se. Under normal circumstances this would call forth a whole panoply of protective devices designed to shepherd the unprofessional litigant through the maze of rules and procedures usually attendant upon well-tried litigation. It should be said here that those "rules and procedures" are not designed as traps for the unwary nor as the raison d'être for the legal profession, but are rather garnered from years of experience and aimed at the orderly, predictable, and consistent resolution of disputes between people. Nevertheless, the bars are often lowered when a party appears pro se.

Despite the obvious advantage to a litigant of the professional help and guidance of one versed in the law, "in all courts of the United States the parties may plead and conduct their own cases personally." ... 28 U.S.C.S. § 1654 (Law. Co-op. 1977). In point of fact, as already implied, the courts are considerably less demanding of a pro se litigant than of one represented by counsel. The court alluded to this practice in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), when it said:

We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

404 U.S. at 520-21, 92 S.Ct. at 595 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957)).

Some rules do apply, however, and one of them is that the court must grant summary judgment pursuant to Rule 56, Fed.R.Civ.P., if it is clear from the record before it that it would have to direct a verdict for the movant at an appropriate time during a trial. That rule is referred to by the court in Weber v. Towner County, 565 F.2d 1001 (8th Cir. 1977):

A court is justified in granting a summary judgment if, after viewing the evidence in the light most favorable to the party opposing the motion and giving that party the benefit of all inferences reasonably deducible, the court is convinced that, upon a trial of the case to a jury, a verdict in favor of the moving party would have to be granted.

565 F.2d at 1006 (quoting Bellflower v. Pennise, 548 F.2d 776 (8th Cir. 1977)). Applying that test to this case it is clear to the court that the movant here must prevail. This conclusion dictates a review of the facts as they appear in the file in its present form.

At some time prior to August 13, 1977, plaintiff completed a form of "Consignor's Contract" and submitted it to defendant Arkansas Breeders' Sales Company in Hot Springs, Arkansas. On it he named seven horses to be offered for sale at auction to be conducted by the defendant association. The form also called for an indication of the horses' color and sex, month, day and year of foal, sire, dam, name of horse bred to, date of last service, whether in foal or barren and an indication of the 1976-1977 production record. This information was provided as appropriate for the horses listed for sale on plaintiff's submission of the Consignor's Contract except that the sex of three foals is not indicated and there is no indication of any breeding history or production record for the first four horses listed. The providing of this detailed information demonstrates to the court that plaintiff gave some considerable attention to the completion of the contract form and did not treat it as a matter of little consequence.

On July 3, 1977, plaintiff sent written instruction to defendant that "Juggler the first horse listed on the Contract is to have a reserve of $32,000.00. Anything above $32,000.00 bid will be the selling price unless competitive bidding will drive the price higher, and hopefully this will be considerably more than $32,000.00." This instruction, on the letterhead of Leo M. Mullen, M.D., 4443 Paseo Boulevard, Kansas City, Missouri 64110, and signed "Leo M. Mullen, M.D." was admitted by plaintiff to be his written instruction to defendant (Judge Hunter's order of April 24, 1980), and in "answers to interrogatories propoud" (sic), filed about August 31, 1979 (date unclear in style of pleading), the instruction was admitted...