Reply Brief — Shaw v. Masters

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COP’

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Bupreme Court, U.S.

? FILED

No. 93-2044 } AUG 19 1994

i OFFICE OF THE CLERK

; IN THE

SUPREME COURT OF THE UNITED STATES

1

a aa

ee ee ee

ee ee eo)

October Term, 1994

SHERMAN L. SHAW,

Petitioner,

vs.

FRANK W. MASTERS, et al,

Respondents

ij

I | PETITION FOR WRIT OF CERTIORARI TO

if THE UNITED STATES COURT OF APPEALS FOR

q THE TENTH CIRCUIT

i BRIEF OPPOSING A MOTION TO DISMISS

}

it

4

4

Sherman L. Shaw

| 2017 Linwood Blvd

7 Apartment 404

si Kansas City, Mo 64109

| Attorney Pro Se

Ph. 816-921-3241

i

QUESTIONS PRESENTED FOR REVIEW

1. Should a Bistrict Court and Appeals

Court ignore relevant case law in ruling

on the state of the law on grounds of an

immunity defense and the eleventh Amend-

ment? Hafer v Melo, 498 U.S. 1118(1991),

overuled Will v Michigan Dept. of State

Police, 491 U.S. 58 (1989).

Be Does not a plaintiff have a right__

to discovery in medical Malpractice case

where he was injured during surgery when

he was unconscious and under anesthesia?

Paganc v Orville Hospital, 145 FRD 683 _

Health Care Quality Improvement Act # 42

U.S.C.A. # 11101. (HCQIA).

3. Does Concealment of the injury toll

the Statute? Bailey v Glover (1875) 115

US 21 Wall .342, 22 L. Ed 636; Pavlak v.

Church C,A, IDAHO 1984, 727 F 2d 1425;..

K.S.A. 60-513; Holmberg v. Armbrezht,327

U.S. 392, 396-397, 66 S Ct 582, 90 L_ Ed

743 (1946); Kansas sta. KSA 60-513(c)

‘Li

PARTIES TO THE PROCEEDING

The parties to this action in the United

States Court of Appeals for the Tenth Cir-

cuit were Frank w. Masters, David W. Rob-

inson, Gere Arthur Budig, John C. Mcfadd-

en, members of the Univ. of Kansas medic-

al Center; Pred Allenbrand,

iii

TABLE OF AUTHORITIES

AM BENEFIT LIFE INC CO v ILLE 87 FRD 540,

543 (W.D. OKLA 1978) ..cccccccccccccccccce 2

A FINAL DISPOSITION IN A CASE C.A. 8(MO)

1968, B62 F 2d 161... cccccescccccccccecece 25

APPLICATION OF U.S., C.A. MA,,1977 563

wm 8) eererereri ry, WTETTTCCT TC TY Lee 11

BRISCOE v LAHUE C.D. ILL 1981, 663 F

2D 713 AFFIRMED 103 S Ct 1108,

460 U.S. 325, 75 L ed 2d 96 cert

DENIED 103 S CT 1426, 460 U.S.

1037... Peds ee ee Ee dade ode eae een ee.ees 18

BURNS v REED, 500 U.S. 111 S CT 1934,

14a 3 ae: ee. BOOS kame tene a oeende 17

COLLINS v MARINA-MARTINEZ C.A. 1

PUERTO RICO 1990, 894 F 2d 474 CF...... 10

ENCUA 'CATIOAL INSTITUTIONS ID AT 189

189-193, 110 S CT AT 582, 5 Serer eoeeevee 6

DOWLING v AMER.CAN HAWAII CRUISES

INC 971 F 2d 423 (9TH CIR 1992)..... 3,7

ENLOW TISHOMINGO COUNTY, MISS

(meee). 1992, BGs FA TO ick cat éwcanees 18

FITZGERALD v SFAMANS, SUPRA. n 40,

180 U.S. A 5,C, at 81, $53 F 24a nie

SE teks week 6% a: athena Shae Pee hee 20

HARLOW v FITZGERALD-457 "! &. 800 5

HARLOW v FITZGERALD 457 U.S. 818

102 S Ct at 2738. ccccvcccscccccnes 9,20

lv

TABLE OF AUTHORITIES

HENRY GILL INDUSTRIES, INC C.A, 9

(ARIZ) 1992, 983 F 2d 943

Soe WeSC s BS GPs bccsisscaccaces 16

HOLMBRECYT v 327 U.S. 392,

396 397, 66 S Ct 583, 90

ee Cee CVPERE seb68 Hesacdoisdese 19

HOOGS#ZON'V 5 .UTH-C,A, 9 56 CF 1S

ROSEE v BOARD of TRADE of CHICAGO,

ILL D.C. ILL 1964, 33 FRD 512....

IMBLER v PACKMAN,,,,,;,; 17

KEITH JACOBSON( PETITIONER)

nm” Behe <P eee 10

REINKE V OCCONNER C,A, 11

(Ga), 1986, 790 F 2d 839 rehearing

déntrd 797 F 2a 982 10

LYTLE v HOUSEHOLD MANUFACTURING,

INC,. dba SCHWITZER

TURBOCHARGERS, 494 U.S.545

LED 504 , 110 SCT 1331..

HCQIA 42 U.S.C.A. 11101-11111 g

12 U,S,C,7 1981, 1985, 1986

28 U.S.C.A. 1332

1

BRIEF OPPOSING MOTION

TO DISMISS

RIGHT TO JURY TRIAL

Trial of nonjury issues may not be used

to collaterally estop party on fact issues

as to which it is entitled to a jury dete-

rmination., Printers II, Inc., v Professi-

onals Publishing, Inc., 784 F 2d 141 ( 2nd

Cir. 1986).

The Supreme Court has set the rules. on

right to a jury trial on fact issues and

non jury issues where jury issues are inv-

olved in the same suit., Lytle v Household

Manufacturing, Inc,. dba Scthwitzer Turboc-

hargers, 494 U.S. 545, 108 L Ed 2d 504,110

S Ct 1331

Trial by affidavit is no substitute for

trial by jury which so long has been the

hallmark of ‘even handed justice.'" Poller

v. Columbia Broadcasting Sys., Inc., 1962,

82 S. Ct. 486, 491, 368 U.S. 464, 473,L Ed

2d 458.

2

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BRIEF OPPOSING MOTION TO DISMISS (Continued)

Undue Limitation of Discovery

Although a District Court has considerable

lattitude in determining the scope of discovery

it abuses its discretion when discovery is so

limited as to effect a party's substantial

rights. , Goldman v Checker Taxi Company,

325 F 2d 8 , 8.6 (7th Cir 1963); See Réeling

v Anderson 103 U.S. App. D,C. 237, 257 F 2d

615, 619 (1958)

Grants of summary judgment on incomplete

records are generally disfavored, and this

is particularly true where it is concluded

that the District Court's discretion over

the fact . finding process has been tainted

by an erroneous view of the law.

Party from whom discovery is sought has

burden of showing "good cause" for protec-

tive order. 768 F 2d 669, 684 (5th Cir)

cert. denied 475 U.S. 1011, 106 S Ct 1186

L Ed 2d 302 (1986) Am. Benefit Life Inc Co.

v. Ille 87 FRD 540, 543 (W.D. Okla 1978)

A TERY a I US A a 7 tata ls hcg < bene

iT. ee A OR a OR oe eres am gg ens oe agen arent ae oe ea

3

BRIEF OPPOSING_-MOTION TO DISMISS(Cont. )

To grant injunctive relief under the

doctrine of Harlow v Fitzgerald., 45/7

U.S. 800.

To determine whether respondents here

can point to some statute to Privilege

or immunity they claim and upon what

statute is it based.

To allow petitioner to discover the

names of the Doctors in attendance on

day of his surgery who performed the

surgery on him since under the ‘{HCQIA),

HEALTH CARE QUALITY IMPROVEME: ACT known

under statute 42 U.S.C.A. 11101-11111 et

seq. does not establish such a broad

privilege . There is no federal statutory

basis for a medical peer review privilege

Dowling v American Hawaii Cruises,In¢é 971

F 2d 423 (9th cir 1992)

To establish a continued commitment to

the bill of rights under the doctrine of

Katz v v United States 389 U.S. 347 and

U.S. v United States District Court.

rs

STATUTE OF LIMITATIONS IN A CONSPIRACY

The statute of limitations in a conspiracy

does not accrue until the conspiracy ran its

course. This is a chain conspiracy which is

characterized by different activities carried

on with same subject of conspiracy in chain-

like manner that each conspirator in chainlike

manner performs a seperate function which is

to serve in the accomplishment of the overall

conspiracy.

Although a civil rights plaintiff asserted

claims for false arrest and false imprisonment

as well as malicious prosecution, all claims

essentially related to alleged conspiracy to

frame him for murder of police officer and

Statute of limitations did not accrue until

conspiracy ran its course., Maruffi, C.A. 10th

(n.m.) 1990, 895 F 2d 649.

Officials of the University of Kansas Med-

center operating under an unconstitutional

state statute in conspiracy with federal offic

ers and federal officials set out to frame me

by making possible an act for entrapment

Ss

Defendants knew that i would suffer a long

duration of injury when they met and decided to

commit the injury through concealment.

statements of coconspira*ors are admissible

against defendant, where from record, it is clear

that defendant's own statements and acts demon-

strates that he participated in conspiracy and

that he engaged in affirmative steps to further

conspiracy.

Defendants were entitled to Summary judgment

on qualified immunity grounds if they can estab-

lish as a matter of law that the search comported

with the fourth amendment even though it actually

did not., Harlow v Fitzgerald 457 U.S. 800:

Anderson v Creighton et al no 85-1520 (argued

Feb 23, 1987- decided June 25, 1987 (8th cir)

Affirmative proof is such proof or such

evidence of the truth of matters asserted as

tends to establish them regardless ef the character

3 Of evidence offered. -In respect to the question

of summary judgment a fact is material if it con-

stitutes a legal defense in the action. (not a sham

pretense) Kenneth-Murray Corp v Bone Ca 1980, 622

F 2d 887.

The Supreme Court does not create an

evidentiary privilege unless it promotes

sufficiently important interests to out-

weigh the need for probative evidence

in as much as "(T)estimontal exclusiorary

rules -and -privileges contravene the fun-

damental principal that the public has a

right to every man's evidence'", And any

such privilege must be strictly construed

"Moreover aithough rule 501 manifests

a congressional desire "not to freeze the law

of privilege but rather to provide the

courts with flexibility to develope rules

of privilege on a case by case basis, we

are disinclined to exercise this authority

expansively. " (citations). 493 U.S. at 189,

110 S Ct at 582. The court went on to note

that congress considered but did not include

a peer review privilege when it extended

title VII to educational institutions. Id at

189-193, 110 S Ct at 582-584.

The ninth circuit subsequently declined

to imbrace the analogous privilege of self-

critical analysis." Dowling v American Haw-

aii Cruises, inc 971 F 2d 423 (9th cir 1992)

There is no federal statutory basis for a

medical — review privilege. The federal

health care quality improvement act of 1986,

42 U.S.C.A. #11111 et seq. (hereafter "HCOIA",

or the act") does not establish such broad

based privilege.

It does accord antitrust liability immunity

to medical “professional review" Participants

whose actions conform to the standards of the

act(id #11111) and protection against extran-

eous disclosure of confidential information

thus generated (#11137(b)(1); However, these

protections are based on the assumption that

the underlying professional review actions

were conducted "in the belief that the action

was in the furtherance of quality health care"

#11112(a). The integrity requirement is by the

many exceptions to immunity set forth in #11111,

including actions relating to civil rights

4

act of 1964, 42 U.S.C.A. #2000 et seq., and

the civil rights acts, 42 U.S.C.A. 41981 et

seq and the clayton act (15 U.S.C. #15c).

The act (HCQIA) infers support of dise!-

osure when the very litigimacy of a medical

peer review committee proceeding is at issue.

Without Statutory authority executive

officer may not erect privilege not to

produce documents which will bar judicial

scrutiny., Rosee v Board of (Trade) a

Chicago, D.c, Ill 1964, 33 FRD 512;,

A document necessary, not absolutely

privileged in possession of the defendant

and requested by the Plaintiff must be

Produced and made available as part of the

administrative file insofar as 1 relates

to the plaintiff himself but not to a stra-

nger to the litigation., Weiss v U.S., 1967,

180 Ct Cl 863.

Chancellor's immunity qualified or not

can not be claimed in a violation of my

rights to procedural due process and equal

Protection of law.

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INJUNCTIVE RELIEF

Petitioners' complaint may be’ contrued

as seeking injunctive relief in addition to

monetary damages. Defendants have had full

ne*ice and a full chance to respond to the

“things put in issue which constitutes a

violation of the Ist, 4th, and 14th amend-

ments under federal law, a violation of the

Health Care Quality Improvement Act(HCQIA)

#42 U.S.C.A.11101-11112., two assults upon

my body(one upon my left thigh and one upon

my brain, in violation of wiretap statutes

and a violation of Provisions of electronic

Surveillance provisions which violates the

Supramcy clause under the federal constit-

ution.

Qualified immunity is unavailable for

injunctive relief., Harlow v Fitzgerald,457

U.S. at 818, 102 S ct at 2738.

This is an ongoing conspiracy made pos-

Sible by defendant's setting a force in mot-

ion by commiting these injuries.

‘

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Pe lh te a Cal eA LI I IGEN CPLR, Lik shel aiebeagin Bes ia mht

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University Chancellor was not entitled

9 2

to qualified immunity on #1983 Claim for

termination of tentured professor in vio-

lation of his right to procedural due

process since such action violates clearly

established rights., Collins v Marina-Mar-

etane ek. 1 (Puerto Rico) 1990, 894 F 2d ,

474 CF. (This was an Official Act)

Physicians were not entitled to summary

judgment in medical malpractice suit against

them where there motions were supported by

only their personal affidavits which stated

Simply that in their personal affidavits

which stated simply that in their expert

opinion neither of them was guilty of mal-

practice., Rienke v Oconner C.A. 11 (Ga),

1986 790 F 2d 850 rehearing denied 797 F 2d

982.

Attempts to frame and entrap a citizen

to coverup wrongdoing by those who wear

a badge of authority should not be tolo-

rated by the courts,. Ketth Jacobsor

(Petitioner) v. U.S. 112 S$ Ct 1535(1992)

PURPOSE OF REQUIREMENT

Sole purpose of requirement of this

rule that every judgment be set forth

On a seperate document is to Clarify

when the time fue appeal begins to run,

Bankers Trust Co. v Mallis , N.Y. 1978,

98 S Ct 1117, 435 U.S. 381, 55 L Ra 257

rehearing denied, 98 S Ct 2259,416 U.S.

915, 56 L Ed 2d 416. see also, Ellison

v Conoco, Inc C.A. 5(La) 1992, 950 F 24

1796.

Purpose of this rule requiring that

every judgment be set forth, is to pro-

tect an appellant from dismissal of his

for untimeliness and where an applicat-

ion of this rule does not serve such

purpose it is unnessary to afford them

them appeal

ips

This conduct was declared and ruled to

be illegal in Katz v United States when it

was ruled by the Supreme Court and i quote;

We conclude that the underpinnings of Olm-

stead and Goldman have been so eroded by

our subsequent decisions that the " Tres-

_pass "doctrine there enunciated can no

be regarded as controlling. Katz v United

States 389 U.S. 347.

Under Hafer v Melo, Official action is

not protected by immunity, when that very

official action has been established to -be

illegal., Katz v U.S. supra; Hafer 112 S Ct

358, 116 L Ed 2d 301 1991.

The Supreme Court has shown a long com-

mitment to the bill of rights. In U.S. Vv.

United States District Court it stated: We

look to the bill of rights to safeguard

this privacy. The broader spirit of fourth

amendment now shields private speech from

unreasonable surveillance.

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In the appeals court some unknown person

implanted a "foreign object" in his left th-

igh.

Statement of Facts

The University of Kansas has a team of

docters -known as the Kansas Surgery assoc-

iation which lists seven doctors which are

known as a partnership-. on 1-13-1992 which

counsel knows from the record, i sent the

special precess server to the University _

of Kansas Medical Center for the express

purpose to learn who of the surgery depar-

tment remained and to obtain the individ-

ual names of the members of the plastic

Surgery association. I told him to not to

leave until he had obtained the necessary

information. He spent the whole day until

late in the afternoon from that morning,

before he was finally able to contact any

one. Finally he was directed to the plas-

tic surgery department in which the admi-

nistrator of the surgery department told

I+

the special court appointed process server

that she was authorized to receive service

for the plastic surgery department because

she was the administrator. Her name was

Mary Gosney. I had told the process server

to obtain a list of the members of the Drs

as of the date of 1-13-1992. this is the

the list that she wrote in her own hand-

writing.

Plastic Surgery Department

for Dr Boraz-Mag 1/13/1992

Dr. Baker

Dr Robinson

Dr Mani

Dr Masters

Dr Hiebert

The record given at this time listed

David W. Robinson as still at the medical

center and still a member of the partner-

ship.

Frank W. Masters was still listed as at

the medical center and member of the part-

nership.

The only name missing was Roger N Bise,

who was assigned as my docter and the

letter in the record from Roger N. Bise

dated 3-5-1990 listed Dr masters still

at the medical center and a member of

the partnership and also Dr Robinson

was still there on 3-5-1990.

i

BURDEN OF PROOF

Burden of showing same issue was actually

and necessarily determined in the prior ac-

tion lies on the party asserting preclusion

M. Conners v Tanoma Mining Co. CiA.D.C.1992

953 F 2d 682.

| It was ruled, because the precise -basis

for decision was unclear, there was no pre-

clusion.

Motion to dismiss could not be treated as

motion for summary judgment where there had

not been oral argument on issue and defend-

ants had set forth no facts that would be

admissible in evidence., Wolford v Budd Co.,

W.D. Va. 1993, 149 FRD 127.

There was no seperate document indicating

a final judgment since there was nothing in

issue but like of venue and jurisdiction.

RULE 58 Entry of judgment

District Courts should take care to enter

a seperate judgment when they make a final

disposition in a case. C.A. 8(mo)1988, 862

F 2d 161.

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Local rule that requires entry of summary

judgment siapiy -if no papers opposing motion

are filed or served, and without regard to whe-

ther genuine issues of material fact exist,

would be inconsistent with summary judgment rule,

and thus would violate federal rule that allows

locai rules only if they are " not inconsistant"

mwith federal rules. Henry v Gill Industries, inc,

C.A. 9 (Ariz). 1993, 983 F 24 943 (28 U.5.C.A.

56 C.F.)

Burden of showing same issue was actually

and necessarily determined in the prior action

lies on the party asserting preclusion., M. Con-

ners v Janoma Mining Co. C.A. D.C. (1992) 993 F

2d 682. It was ruled, because the precise basis

mof decision was unclear there was no preclusion.

Qualified immunity is affirmative defense,

and burden of proving defense lies with official

asserting it., Houghton v. Souyh, C.A. 9 (Mont)

1992, 965 F 2d 1532

wore eee ema eteagees =A _

7

Immunity from suit under #1983 is predi-

cated upon a considered inquiry into the

immunity historically accorded the relevant

official at common law and the interests

behind it," Imbler v Pachtman, 424 U.S. 409,

421, 96 S.Ct 984, 990, 47 L Ed 24 547(1976).

3 Officials seeking absolute immunity must | |

show that such immunity is justified for the

governmental function at issue, Burns v Reed,

5900 U.S. 111 S Ct 1934, 114 L Ea 2a 547 (1991),

The Supreme Court has refused to extend

absolute immunity beyond a vezy limited class

of officials.

Where the evidence tends to connect a

wrongdoer with the wrongful acts Charged in

the absence of any evidence explaining his

conduct or any justification every inference

Warranted by the evidence Shall be taken against

him., 86 C.J.s. Torts 59, page 983 note 82,

General rule in federal Practice dis-

favors Privileges not constitutionally based.,

WM. T, Thompson Co. y General Nutrition Corp.

Cite as 671 PF 2d 100 (1982).

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IMMUNITY (continued)

Immunity available at common law will not

be recognized if history or purpose aan

purpose of 1983 counsel against applying that

in 1983 actions. Wyatt v. Cole U.S. Miss 1992,

1.12 6... Ge 3077

In determining whether immunity defense is

available in 1983 suit, critical intial quest-

ion is whether official claiming immunity can

point to common law counterpart to privilege

he asserts. Enlow v Tishomingo County, Miss.,

Ca. 5 'Miss) 1992, 962 F 2d 101

Common law immunities are not ‘ie be imported

wholesale into this section., Briscoe v Lahue,

“ €.D. Ill 1981, 663 F 2a 713, affirmed 103 S

Ct 1108, 460 U.S. 325, 75 L. Ed 2d 96, cert-

iorari denied 103 S Ct 1426, 460 U.S. 1037, 75

L Ed 2d 787

Because it detracts from 1983's broad remed-

ial purpose, absolyte immunity applies only to

a limited class of officials and functions suc

as prosecutors, executive officers iniating

adminstartive proceedings,

“19

TOLLING OF STATUTE, WIRETAPPING

ELECTRONIC SURVEILLANCE

Applying the due diligence standard to

this case, no base for summary judgment

in favor of appellees on statute of limit-

ation grounds can be found. a wiretap is

by nature secret, and extraordinary effects

were undertaken to conceal the surveillance

program involved. Such affirmative acts

according to fitzgerald v Seamans, supra

n 40, 180 U.S. App D.C. at 83; 553 F 2d

228 would provide the agravation needed

to bring this case within the traditiona}

view that the statute of limitations is

tolled when «here has been fraudulent con-

cealment of the injury that would serve

as the basis for legal action. See Holm-

berg v Armbrecht, 327 U.S. 392, 396-397,

66 S Ct 582, 90 L Ed 743 (1946).