Ham v. Bell Brief for Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA 

No. 79-2167

GENE HAM,
Plaintiff-Appellant,

- v -
GRIFFIN BELL, et al.

Defendants-Appellees.

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

GENE HAM
1311 Lula Street 
Charleston, S.C. 29407

Pro Se



CERTIFICATE REQUIRED BY RULE 8 (c)

The undersigned, plaintiff pro se, certifies that the 
following listed parties appeared below:

Gene Ham, Plaintiff
Griffin Bell, Attorney General of the 
United States and the United States 
Department of Justice, Defendants

These representations are made in order that Judges of 
this Court, inter alia, may evaluate possible disqualifica­
tions of recusal.

GENE HAM
1311 Lula Street 
Charleston, S.C. 29407

By:



INDEX
PAGE

Certificate ................................. i
Question Presented ............................. 1

Reference to Parties and Ruling ...............  1

Statute Involved .............................. 2
Statement of the Case .........................  2
Argument ....................................... 5

CONCLUSION ..................................... 7
CERTIFICATE OF SERVICE ........................  8



TABLE OF CASES
Page

Adickes v. Kress Co., 398 U.S. 144 (1970)............... 5
Haines v. Kerner, 404 U.S. 519 (1972)    5
Ham v. Bell, (D.D.C. No. 79-0082, August 30, 1979) . . .  2
Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968) aff1d on

rehearing, 424 F.2d 854 (1970)......................  5
Hummel v. Riordon, 56 F. Supp. 983 (N.D. 111. 1944) . . .  6
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) . . .  5
Willmar Poultry Co. v. Morton-Norwich Products, Inc.,

520 F. 2d 289 (8th Cir. 1975).................. .. 6
XRT, Inc. v. Krellenstein, 448 F.2d 772 (5th Cir. 1971) . 6

Statutes and Rules
5 U.S.C. § 552 .................... .. 1,2,3,4,7
Rule 56, Fed. Rules of Civ. Proc, . . . . . . . . . . . .  2



IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA 

No. 79-2167

GENE HAM,
Plaintiff-Appellant,

- v -
GRIFFIN BELL, et al.

Defendants-Appellees.

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

Question Presented
Did the District Court err in granting defendants' motion 

for summary judgment in this Freedom of Information Act case 
without giving the pro se plaintiff the necessary time to file 
an adequate response?*

Reference to Parties and Ruling 
On August 30, 1979, Judge June L. Green issued a

* This is the first appearance of this case before this 
Court.



memorandum decision. Ham v. Bell, (D.D.C. No. 79 0082,
August 30, 1979), which is reproduced in the Appendix at pp. S
(Hereinafter referred to as "A" .")

Statute and Rule Involved
This case involves the Freedom of Information Act, 5 U.S.C.

§ 552, and Rule 56, Federal Rules of Civil Procedure, the 
texts of which are set out in the appendix.

Statement of the Case
This Freedom of Information Act case began with the filing 

of a complaint, pro se, by the plaintiff, Gene Ham, in January 
1979. At the time of the filing, plaintiff was incarcerated 
by the State of South Carolina at Columbia, South Carolina.
On March 23, 1979, while the action was pending, plaintiff was 
released from prison, but was unable to secure counsel to 
represent him in this action.

The basis of the action was a request under the F.O.I.A. 
by the plaintiff made on March 11, 1977, to the Department of 
Justice, and specifically the Federal Bureau of Investigation. 
Plaintiff requested any and all information gathered and 
compiled on him. His particular concern was the gathering of 
reports concerning his civil rights activities in South 
Carolina and the use of those reports in bringing about his 
arrest and conviction for alleged crimes. One purpose for 
obtaining information from F.B.I. files was to substantiate 
his claims that he was prosecuted and convicted because of

2



his civil rights activities, and not because he was in fact
1/

guilty.
The F.B.I. provided him with material on file in both the 

field office in Columbia and at headquarters in Washington,
D.C. Certain information was withheld, however- Plaintiff 
appealed administratively, some additional materials were 
released, but by and large the determination to withhold por­
tions of the released documents was affirmed. This present 
action was timely filed pursuant to 5 U.S.C. § 552(a)(4)(B).

In his complaint, and in subsequent correspondence, 
plaintiff called the court's attention to the fact that he was 
indigent and requested the appointment of counsel. At all 
times, the court was aware of plaintiff's pro se status. (See, 
appendix, p. 8 •)

On or about February 12, 1979, the government filed its 
answer, generally denying that plaintiff was entitled to any 
relief. On February 22, 1979, a status call was held at which 
the plaintiff was neither present, because of his incarceration 
nor represented. At that time his motion for appointment of 
counsel was denied. Plaintiff had received notice of the 
status call only on February 21. (A. p. 7 .)

Subsequently, on or about April 22, 1979, defendants 
filed a motion for summary judgment. It was mailed to plain­
tiff addressed to his place of incarceration. Since he had been

1/ Post-conviction challenges to his convictions are presently 
pending in both state and federal courts in South Carolina.

3



released, however, the copy never reached him. Another set of 
the papers was mailed sometime in July (A. p. 149), but did not 
reach plaintiff until August 10, 1979. (A. p.148 .)

On August 22, 1979, plaintiff submitted an affidavit in 
letter form reciting that the motion for summary judgment had 
been recently received, and that plaintiff had been attempting 
to obtain counsel to assist him in filing "the necessary legal 
and proper reply" to the motion. (A. p.14 8 .) Plaintiff 
requested an extension of time to reply and renewed his request 
for appointment of counsel. (Ibid.)

On August 30, 1979, however, the court denied the motion 
and granted defendants' motion for summary judgment. The motion 
relied on lengthy affidavits from two F.B.I. agents and asserted 
that the matters excluded came within the provisions of 5 U.S.C. 
§§ 552(b)(7)(c) and (d). Attached to the affidavits of the 
agents were copies of the documents with the deletions made.
At no time were the unexpurgated documents submitted to the 
district court for an in camera inspection to determine whether 
the deleted material in fact came within the cited exceptions.

4



ARGUMENT

A Grant of Summary Judgment Without 
A Response From the Plaintiff Or an 
In Camera Inspection of the Documents 
Was Improper.

As the Supreme Court has indicated, motions for 
summary judgment should be granted only where all of the 
requirements of Rule 56 have been met, and where it is 
clear that there are no issues of material fact. Other­
wise, a party's right to a full adjudication on the merits 
of his case may be unjustifiably cut off. See, Adickes v. 
Kress Co., 398 U.S. 144 (1970). This Court has cautioned
specifically that in the case of prisoners pro se:

The requirement of the summary 
judgment rule may not 
fairly be applied "with strict 
literalness" to a prisoner un­
represented by counsel and subject 
to the "handicaps . . . detention 
necessarily imposes upon a litigant."

Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968), 
aff'd on rehearing, 424 F.2d 854 (1970). See also, Haines 
v. Kerner, 404 U.S. 519 (1972); Roseboro v. Garrison, 528 
F.2d 309 (4th Cir. 1975).

It is also inappropriate to grant summary judgment 
where the relevant information is peculiarly within the 
knowledge of the movant without giving the opposing party

5



the opportunity to conduct discovery pursuant to Rule 56(f).
See, e.q., XRT, Inc, v. Krellenstein, 448 F.2d 772 (5th Cir. 
1971); Hummel v. Riordon, 56 F.Supp. 983 (N.D. 111. 1944).

All of the factors set out above militated against 
granting the motion for summary judgment in this case.
First, plaintiff, a pro se prisoner, was in no way informed 
of the consequences of a failure to respond to the affidavits 
filed by the government. Indeed, he was attempting to get 
additional time to find an attorney and receive legal counsel; 
nevertheless, the motion was granted less than three weeks 
after he had received it and after he had requested more time.

Second, in an FOIA Case the facts that determine 
whether everything has been released or whether materials 
have been properly withheld are peculiarly within the agency's 
knowledge. Thus, for example, depositions of the agents who 
supplied the affidavits could establish whether they had 
themselves fully searched to determine whether all documents 
referring to plaintiff had been located. Plaintiff's letter- 
affidavit, also prepared pro se, was sufficient under Rule 56(f) 
to establish the necessity for allowing discovery in order to 
respond adequately to the motion. Once such a showing had 
been made, it was, of course, improper to grant summary judg­
ment. See, Willmar Poultry Co. v. Morton-Norwich Products,Inc., 
520 F .2d 289 (8th Cir. 1975).

6



Finally, the granting of summary judgment under
the circumstances of the present case without at least 
conducting an _in camera inspection of the deleted portions 
of the documents was particularly inappropriate. Under 
§ 552(a)(4)(B) the court may conduct such an inspection to 
determine whether the agency has met its burden of establish­
ing that the material came within the §552(d) exemptions 
relied upon. With no discovery and a pro se plaintiff who 
had been unable to file a response to the motion at the very 
least the court should have examined the unexpurgated documents 
to ensure that the plaintiff's rights were protected.

CONCLUSION
For the foregoing reasons, the decision of the court

below should be reversed
Respectfully submitted

GENE HAM
1311 Lula Street 
Charleston, South Carolina

29407
Pro se

7



CERTIFICATE OF SERVICE

I hereby certify that I served copies of the
attached Brief by depositing the same in the United States 
mail, postage prepaid addressed to Lillian A. McEwen, Esq., 
Assistant United States Attorney, United States District 
Courthouse, Room 3432, 3rd and Constitution Avenue, 
Washington, D.C. 20001.
January o  0 , 1980.

Gene Ham, pro se.

8



Appendix of Statute and Rule Involved.
5 U.S.C. § 552. Public information; agency rules,

opinions, orders, records, and 
proceedings

(a) Each agency shall make available to the public 
information as follows:

*  *  *

(3) Except with respect to the records made available 
under paragraphs (1) and (2) of this subsection, each agency, 
upon any request for records which (A) reasonably describes 
such records and (B) is made in accordance with published 
rules stating the time, place, fees (if any), and procedures 
to be followed, shall make the records promptly available to 
any person.

★ ★ *

(B) On complaint, the district court of the United
States in the district in which the complainant resides, or has 
his principal place of business, or in which the agency records 
are situated, or in the District of Columbia, has jurisdiction 
to enjoin the agency from withholding agency records and to 
order the production of any agency records improperly withheld 
from the complainant. In such a case the court shall determine 
the matter de novo, and may examine the contents of such agency 
records in camera to determine whether such records or any part 
thereof shall be withheld under any of the exemptions set forth 
in subsection (b) of this section, and the burden is on the 
agency to sustain its action.

★ * *

(b) This section does not apply to matters that are --
(1) (A) specifically authorized under criteria 

established by an Executive order to be kept secret in 
the interest of national defense or foreign policy and 
(B) are in fact properly classified pursuant to such 
Executive order;

(2) related solely to the internal personnel rules 
and practices of an agency;

(3) specifically exempted from disclosure by statute 
(other than section 552b of this title), provided that 
such statute (A) requires that the matters be withheld 
from the public in such a manner as to leave no discretion 
on the issue, or (B) establishes particular criteria for 
withholding or refers to particular types of matters to be 
withheld;

l



(4) trade secrets and commercial or financial 
information obtained from a person and privileged 
or confidential;

(5) inter-agency or intra-agency memorandums or 
letters which would not be available by law to a party 
other than an agency in litigation with the agency;

(6) personnel and medical files and similar files 
the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy;

(7) investigatory records compiled for law en­
forcement purposes, but only to the extent that the 
production of such records would (A) interfere with 
enforcement proceedings, (B) deprive a person of a right 
to a fair trial or an impartial adjudication, (C) consti­
tute an unwarranted invasion of personal privacy, (D) dis­
close the identity of a confidential source and, in the 
case of a record compiled by a criminal law enforcement 
authority in the course of a criminal investigation, or
by an agency conducting a lawful national security 
intelligence investigation, confidential information 
furnished only by the confidential source, (E) disclose 
investigative techniques and procedures, or (F) endanger 
the life or physical safety of law enforcement personnel;

(8) contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation 
or supervision of financial institutions; or

(9) geological and geophysical information and data, 
including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to 
any person requesting such record after deletion of the portions 
which are exempt under this subsection.

Rule 56(e) and (f), Fed. Rules of Civ. Proc.
(e) Form of Affidavits? Further Testimony; Defense Required. 

Supporting and opposing affidavits shall be made on personal 
knowledge, shall set forth such facts as would be admissible in 
evidence, and shall show affirmatively that the affiant is com­
petent to testify to the matters stated therein. Sworn or certi­
fied copies of all papers or parts thereof referred to in an 
affidavit shall be attached thereto or served therewith. The 
court may permit affidavits to be supplemented or opposed by de­
positions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as pro­
vided in this rule, an adverse party may not rest upon the mere 
allegations or denials of his pleading, but his response, by

IX



affidavits or as otherwise provided in this rule, must set 
forth specific facts showing that there is a genuine issue 
for trial. If he does not so respond, summary judgment, if 
appropriate, shall be entered against him.

(f) When Affidavits are Unavailable. Should it appear 
from the affidavits of a party opposing the motion that he 
cannot for reasons stated present by affidavit facts essential 
to justify his opposition, the court may refuse the application 
for judgment or may order a continuance to permit affidavits to 
be obtained or depositions to be taken or discovery to be had 
or may make such other order as is just.

in