holding that the district court abused its discretion, under the particular circumstances in that case, in failing to afford a pro se civil rights litigant a meaningful opportunity to remedy the defects in his summary judgment materials
How later courts described this case
- holding that the district court abused its discretion, under the particular circumstances in that case, in failing to afford a pro se civil rights litigant a meaningful opportunity to remedy the defects in his summary judgment materials
- holding that the burden is on defendant to establish his entitlement to claim official immunity by demonstrating that “his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.”
- stating that a verified complaint serves as the equivalent of an affidavit for purposes of summary judgment
- explaining that “a district judge ... is neither required nor permitted to be counsel for any party, whether that party is appearing pro se or through counsel”
Written by the judges who cited it.
The opinion
GEE, Circuit Judge,
concurring in part and dissenting in part:
Though I have struggled to concur fully in the court’s admirable and useful opinion, in the end I find myself at odds with one of its holdings, and one only: that the trial judge abused his discretion in failing to counsel Barker that his affidavit in opposition to motion for summary judgment was insufficient because it advanced only hearsay on dispositive points, Keller’s consent to the search of Barker’s apartment and her description of items confiscated there as stolen. Had Barker been represented by counsel, and had this fault in his presentation appeared, I venture that the judgment *1133 against him would have been affirmed. Implicitly or explicitly, we would have assumed that counsel offered hearsay because he had nothing better to offer: could not locate the witness, could not procure her affidavit to the desired effect, whatever.
I respect the generous impulse that prompts my siblings to grant Barker special indulgence as a pro se litigant and, as such a one, unfamiliar with the law of evidence. Nor do I doubt that justice in the case is served thereby; it is. Well and very well, for the short run. But the run of justice according to law is a long one, and I doubt that it is well served by offering incentives to pro se litigation. Nor do I see how, once the judge is cast in the role of counsel for the pro se litigant in one respect and reversed for failing to ascertain that role and embrace it, we can easily cut steps in the slippery slope onto which we have advanced. 1 When hearsay is testified to in a trial pro se, for example, must the judge henceforth exclude it, absent an objection, on pain of reversal?
Pro se litigation is a necessary accommodation to constitutional demands and to those of fairness were there no constitution. As such, it must be countenanced. But to encourage it, in a time when few causes of arguable merit, and some of little or none, want a trained champion by writing special rules favoring it seems to me unwise. Pro se litigants seldom fail to advise us of their ignorance of the law and their corresponding need for special indulgence; the claim is a familiar introduction to prisoners’ pro se civil rights complaints and petitions for ha-beas. To his credit, Barker did not do so, but he has received it at our hands even so. The role of Scrooge is one that I assume unhappily, but once we begin to confect a general set of rules more favorable to those who proceed without counsel than to those who do, I know of no principled way to stop. I would not begin. To this small degree, I dissent. As to the remainder of the court’s disposition, I gladly concur.
. Had the trial judge volunteered his counsel, I would not be concerned. It is placing him in error because he did not that troubles me.