Signer v. Indiana University Foundation

741 F. Supp. 165, 1990 U.S. Dist. LEXIS 9501, 1990 WL 109223
CourtDistrict Court, S.D. Indiana
DecidedJuly 25, 1990
DocketNo. IP 87-601-C
StatusPublished
Cited by1 cases

This text of 741 F. Supp. 165 (Signer v. Indiana University Foundation) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Signer v. Indiana University Foundation, 741 F. Supp. 165, 1990 U.S. Dist. LEXIS 9501, 1990 WL 109223 (S.D. Ind. 1990).

Opinion

ENTRY REGARDING NOTICE TO PRO SE PLAINTIFF OF OPPORTUNITY TO SUBMIT AFFIDAVITS IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TINDER, District Judge.

This cause comes before the court on the defendant’s motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff, who is acting pro se in this case, has submitted a brief in opposition to the defendant’s motion and several exhibits, including documents, and defendant’s responses to plaintiff’s interrogatories. The plaintiff has also submitted a motion to amend his brief in opposition and has attached an additional exhibit to that motion (a documentary exhibit). This court granted plaintiff’s motion to amend on July 16, 1990. However, the plaintiff has not submitted any affidavits in opposition to the motion for summary judgment, not even his own affidavit.

The court’s ruling on the defendant’s motion for summary judgment is complicated by the fact that the plaintiff in this case is acting pro se. Pro se litigants are entitled to certain rights not afforded litigants with lawyers. For example, in Lewis v. Faulkner, the Seventh Circuit held that prisoner pro se litigants were entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment. 689 F.2d 100, 102 (7th Cir.1982). As a result of Lewis, pro se prisoners are immune from adverse summary judgment decisions unless they have been provided with “a short and plain statement that any factual assertion in the mov-ant’s affidavits will be accepted by the district judge as being true unless the plaintiff submits his own affidavits or other documentary evidence contradicting the assertion.” Id. Acting on Judge Posner’s suggestion in Lewis, id. at 102-03, government lawyers have assumed the burden of sending this notice to pro se prisoner litigants in cases in which a governmental entity or employee moves for summary judgment.

Unfortunately, the pro se plaintiff in this case has not been provided with any such notice. Although this plaintiff is not a prisoner (and is thus outside the protection of Lewis’s holding, see id. at 102 (“We leave for another day the possible extension of our new rule to other classes of pro se civil litigants”)), this court believes that Lewis ought to be extended to immunize even non-prisoner pro se litigants from ad[166]*166verse summary judgment decisions, entered sans notice. At least two district court judges from this circuit have already made this extension, albeit implicitly. See Corr ex rel. Corr v. Sullivan, 725 F.Supp. 413, 414 (N.D.Ind.1989) (Sharp, J.) (in social security case, court noted that pro se plaintiff had received notice in accordance with Lewis)) Hights v. International Harvester Co., 675 F.Supp. 418, 419 n. 2 (N.D.Ill. 1987), aff'd, 873 F.2d 1443 (7th Cir.1989) (Shadur, J.) (characterizing Lewis as establishing a “uniform practice whenever Rule 56 motions are asserted against unrepresented litigants”).

The extension of Lewis to protect non-prisoner pro se litigants is only natural. The right of a litigant to have a “reasonable opportunity” to submit affidavits in opposition to a motion for summary judgment is not a right that should be exclusively held by pro se prisoners. The holding in Lewis was premised on the assumption that prisoners are laymen who lack an instinctive awareness of the purpose of a motion for summary judgment. Lewis, 689 F.2d at 102. Among the class of pro se litigants, however, prisoners are perhaps as well informed about the judicial system and the applicable rules as any pro se group imaginable. Prisoner litigants have access to law libraries and “jailhouse lawyers,” and have the time needed to fully develop their cases. In contrast, non-prisoner pro se litigants may lack the institutional knowledge about the law that develops within the confines of the prison systems. It is only natural that less knowledgeable non-prisoner pro se litigants should also receive notice.

Admittedly, extending this right to non-prisoner pro se civil litigants may impose a greater burden on this court than was envisioned by Judge Posner in Lewis. Cf. id. at 102-03 (Seventh Circuit suggests that the three state attorneys general in this circuit ought to assume the responsibility of notifying pro se prison litigants). The private bar is much larger than the pool of government lawyers who traditionally defend against prisoner civil actions. As a larger body, the private bar is likely to be less aware of the obligation to give notice, and hence will be less likely to “lift this new burden from the judges’ shoulders.” Id. at 102. Judges will need to devise some mechanism by which to inform the private bar of this newly created obligation to send notice to pro se litigants

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Bluebook (online)
741 F. Supp. 165, 1990 U.S. Dist. LEXIS 9501, 1990 WL 109223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/signer-v-indiana-university-foundation-insd-1990.