# Reply Brief — Shaw v. Masters

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 823

## Text

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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we ge we og eee

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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. . r ee Mie sh we inns betes Supuk Tes ae occ i ela ae ee : - aN td Pa apn

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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.

‘
:

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

(0 "

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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“Z aS eT - as

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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).

i a lt ale
7 ae fe

Is

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1764%3A5. Public record. Not legal advice.