Schooley v. Kennedy

Decision Date22 July 1983
Docket NumberNo. 83-1188,83-1188
Citation712 F.2d 372
PartiesDean SCHOOLEY, Vera Schooley, his wife, Appellants, v. Francis H. KENNEDY, Jr., Chopin & Kennedy, P.P.C., City of Wellston-Townhouses Ltd., Human Development Corporation a/k/a Missouri Housing Development Commission, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

R.E. Keaney, D. Raymond Raney, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, St. Louis, Mo., for appellees Kennedy and Chopin & Kennedy, P.C.

Louis Gilden, St. Louis, Mo., for appellee Human Development Corp.

Harold L. Whitfield, Freeman, Whitfield, Montgomery, Staples & White, St. Louis, Mo., for appellees City of Wellston.

Before HEANEY, BRIGHT and FAGG, Circuit Judges.

PER CURIAM.

Dean and Vera Schooley appeal pro se from the district court's order dismissing their case without prejudice for failure to comply with a pretrial order. The Schooleys contend that the district court abused its discretion because at the time of the dismissal: (1) they had substantially complied with the pretrial order; (2) they were making a good faith effort to obtain counsel; and (3) a motion was pending before the court. We affirm.

In April 1981, the Schooleys filed a pro se complaint against various defendants alleging a conspiracy to deprive them of their real property without due process of law. The first of many trial dates set was September 13, 1982.

In June 1982, the district court filed a pretrial order which included the requirements that ten days prior to trial the parties submit a proposed list of witnesses, jury instructions supported by at least one pertinent citation, and a trial brief. The order also included a warning that failure to comply with the order could result in the imposition of sanctions as set forth in Rule 13, Rules of the United States District Court for the Eastern District of Missouri. Rule 13 states that "[f]ailure on the part of either party to comply with said order may result in the application of sanctions by the Court, including, but not limited to, dismissal of the action ...."

In August 1982, the Schooleys filed a motion for a continuance which was granted and trial was set for December 13, 1982. In October 1982, the Schooleys filed a proposed list of witnesses and exhibits. During the same month the magistrate conducted a pretrial conference, advised the Schooleys to retain counsel, and ordered the Schooleys to advise the court regarding their decision to retain counsel. The Schooleys replied that they wished to obtain counsel but were so far unsuccessful. A few days before trial the Schooleys moved for a second continuance because they were unable to obtain counsel and did not feel competent to present their case. Although their motion was denied, the Schooleys did not appear on the scheduled trial date; however, without any penalty to the Schooleys, the case was reset for January 10, 1983.

On January 10, the court was unable to hear the case because a case on the criminal docket took precedence. After rescheduling the case for January 24, the court warned the Schooleys that it would dismiss their case if they failed to comply with the pretrial requirements by the trial date and advised them to hire a lawyer. Thereafter, two defendants filed motions to dismiss the Schooleys' action for failure to comply with the pretrial order. The Schooleys did file amendments to their purported pretrial compliance consisting of a single jury instruction without the required citations to authority but no trial brief was filed.

When the case was called for trial on January 24, 1983, the Schooleys again told the court they had yet to find suitable counsel and requested another continuance. All the defendants then joined in a motion to dismiss the action for failure to comply with the pretrial order. The order of dismissal which is the subject of this appeal was then entered.

The Schooleys contend that the documents they filed with the court adequately comply with the pretrial requirements, and that the court erred in holding them to the same standard of skill as lawyers in complying with the pretrial order. Although pro se pleadings are to be construed liberally, pro se litigants are not excused from compliance with relevant rules of the procedural and substantive law. See Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2541, n. 46, 45 L.Ed.2d 562 (1975); Barker v. Norman, 651 F.2d 1107, 1123 (5th Cir.1981).

A pro se litigant should receive meaningful notice of what is required of him but the court is not required or permitted to act as counsel for any party. See Lawson v. Kolender, 658 F.2d 1362, 1371-72 (9th Cir.1981), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); ...

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