Submitted by Mike Appleton, Guest Blogger
John Thompson spent 18 years in prison, 14 of them on death row, following convictions for attempted armed robbery and murder in separate incidents. A scant month before the scheduled execution, an investigator hired by Thompson’s lawyers made a startling discovery in the crime lab archives: a lab report which completely exonerated Thompson on the attempted robbery charge.The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel. At his subsequent trial on the murder charge, Thompson understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes.
In due course both convictions were overturned. A second trial on the murder charge produced a defense verdict after only 35 minutes of jury deliberation. Thompson thereupon sued Harry Connick, the New Orleans district attorney, under several theories, including a violation of Section 1983 of the Civil Rights Act of 1871. The jury awarded Thompson $1,000,000.00 for each year spent on death row, a total of $14,000,000.00. The verdict was affirmed by the Fifth Circuit Court of Appeals.
Thompson will never see a dime of his award. In a 5-4 decision announced on March 29th, the Supreme Court reversed the Fifth Circuit. Writing for the majority, Justice Thomas found the evidence of prosecutorial misconduct was insufficient to support a conclusion that the district attorney had been “deliberately indifferent” to his duty to insure that prosecutors in his office adhered to the requirements of the Brady rule.
Justice Thomas reaches his conclusion by framing the issue in a manner which admits of no alternative result. The sole question for the court, he says, is whether Section 1983 liability may be based upon “a single Brady violation.” Of course it can’t. The reason is that a district attorney cannot be held liable for the actions of his subordinates under the theory of respondeat superior. Instead, it was necessary for Thompson to establish a pattern of such violations in Connick’s office sufficient to permit a conclusion that Connick was deliberately indifferent to the need to adequately train his staff on the Brady requirements.
But Justice Thomas ignores substantial evidence in the record that Connick’s office was a virtual cesspool of prosecutorial misconduct. Indeed, at least four prosecutors were aware of the withheld evidence in Thompson’s armed robbery trial. The responsible prosecutor had actually confessed to a colleague that he had withheld the lab report. Connick had had a number of prior convictions reversed for Brady violations. Connick himself openly admitted to never having cracked a law book subsequent to becoming district attorney in 1974.
Justice Thomas finds this record unpersuasive because, as he notes, none of the previous Brady violations “involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.” Accordingly, he concludes, Connick could not have been on notice of the need to train his staff concerning the specific violation in Thompson’s case. Besides, he continues, prosecutors are trained attorneys who can be expected to know and understand their obligations. I don’t know how many potential violations exist in the Brady universe, but presumably Justice Thomas would require that Connick’s prosecutors commit all of them before “deliberate indifference” might be inferred.
The decision in this case is not so much about law as it is about a public policy position intended to impose the most formidable barriers possible to pursuing a Section 1983 claim against a state agency. I prefer to call it the doctrine of prosecutorial impunity.
it’s WOOSTY black hat.
and no you are not correct. I have no problem with the way things are. My problems generally stem from having to deal with people who misrepresent the way things are and the what they are, in actuality, doing.
Big difference.
as far as changing IT goes….IT is fine. Knowing who is unable to abide by the IT is even better.
have fun being…..replaceable…..
ps.http://www.gallup.com/poll/145043/Nurses-Top-Honesty-Ethics-List-11-Year.aspx
~honor amongst theives is not honorable….
So Wootsy,
You have a problem with the way things really are….I do too…but when you are paid to do a job…just like representing defendants….you don’t look at whats right or wrong….you look at the law and that is your guide….I will say again…if you don’t like it you change it….
“…you see your honor the matter was dismissed in the state and federal court…show the Order of the court…and then have the matter dismissed for the same reasons and be very nasty and indignant towards you and show the court how unreasonable you really are …..the next step would be to set the matter for attorney fees, get a judgment and if you did not show up….get a judgment again by default…. and then and try and collect it anyway possible…. you see that is where the Jurisdiction of the Federal Court gets interesting….the can get the Judgement in Colorado Certified…..file it where you live for Collection purposes only….if you want to contest it…..you have to file a bond in the amount set by the court….generally the amount of the Total Judgment….plus interest, attorney fees and costs….then go back to the forum that issued the Judgment and fight it there….It is the Uniform Judgment Collection Practice Act….”
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what a pretty formulae……
pretty mindless anyway….talk about a shield, looks more like a bully hiding behind some nasty, complacent, given up skirt……….
at the end of some days, it is better to take place with those who did not ‘win the day’….because they are the ones who did not cheat….did not lie…..did everything they could to make straight a crooked road. Best to make sure that the ones you are left with are the ones you can trust, the ones that can trust you….and that means nothing more than having the ability to be trustworthy.
Words are the foundations of substance…they count.
Kay,
You have to do what you have to do….No one is saying you should not do what you want to do. What you are being cautioned on is the merits of your case and reinventing the law that you seem to think meets your immediate needs. You have been told very bluntly and not so kindly at times that you risk going to jail for contempt yet again if you refile based upon what you have stated….Buddha, myself, OS, Mike A and others (et al) have encouraged you to get help with this….this is not the proper forum to obtain legal advice…especially with long lasting consequences…..
The terms Res Judicata and Collateral Estopple are basically claim preclusion matters….. regardless if you feel you have have had your day in court if these matters were brought up and dismissed by the judge…they have been decided, they are a BAR AND SHIELD…. whether you like the result or not…. THEY ARE DECIDED, maybe not on the merits…but none the less decided….it may not have been fair….but if you did not appeal the matter in a timely fashion…your day in court has been had and lost…even the appeal for not filing it timely…then again…you appear not to seek any opinion on here except the one that agrees with yours…. we are not a social club or at least I am not…. I don’t know about what kind of law the others practiced…but I was a take no hostages litigant…. I was feared, I made promises and I lived through with them and today…I wonder why…as soon as the client got what they wanted….they rarely knew who I was except when the wanted something else…. Is that really a way to live? When it ends up costing you the things you took for granted…your family?
I see from my perspective what you are trying to do…You are going down in flames from what you have said about your cases…. It will be costly and you will still be in the same boat or worse emotionally… maybe financially devastated or even in ruins… in any event…It is my opinion that since you brought the claims already….they are barred…hence the defense would be…you see your honor the matter was dismissed in the state and federal court…show the Order of the court…and then have the matter dismissed for the same reasons and be very nasty and indignant towards you and show the court how unreasonable you really are …..the next step would be to set the matter for attorney fees, get a judgment and if you did not show up….get a judgment again by default…. and then and try and collect it anyway possible…. you see that is where the Jurisdiction of the Federal Court gets interesting….the can get the Judgement in Colorado Certified…..file it where you live for Collection purposes only….if you want to contest it…..you have to file a bond in the amount set by the court….generally the amount of the Total Judgment….plus interest, attorney fees and costs….then go back to the forum that issued the Judgment and fight it there….It is the Uniform Judgment Collection Practice Act…..tell me that ain’t Federal….guess what this can be used in Federal or State Courts for Child Support Collections….. So tell me I was just a Family Court Lawyer so my opinion don’t matter…. I did it pretty much all Kay…But your case would be one that I would run from….you know why….Attorneys can be left holding the bag…ie attorney fees for an on behalf of the clients stupidity…. failure to do a due diligence inquiry…..
O.S.
Well here it is in the AM and you are choosing to respond to my posts. And I am up searching case law on prosecutorial misconduct, malicious prosecution, and related subjects.
You write that if I file in federal court “there may be some serious consequences” to me.
I was under the impression that federal court was supposed to be a safe place and that as long as I was positive that everything I file is totally 100% true, that I not threaten witnesses or judges, that I not bribe anyone or attempt to do so, that I comply with discovery orders, and that I am polite at all times in court, sitting and standing when and where I am supposed to, talking when I am allowed, saying your honor this and your honor that, and that I not bring a cell phone, weapon or other prohibited item into a federal court, that I should be “safe” even if I make novel legal arguments. Do you think that is untrue? Will I be assaulted, kidnapped, or robbed for filing a complaint in federal court?
Kay, no one has told you that you cannot file. Everyone has told you that if you do, there may be some serious consequences for you. It is your call. Sounds as if it is action time. Either do it or stop talking about it.
One of the site administrators over at Daily Kos has the username of Meteor Blades. His real name is Tim. His sig line is:
Sounds like lawyers against pro ses.
Too bad, I am not anti-lawyer.
I’ll go to the slammer for contempt again? No I won’t. I don’t believe that USMS will make the mistake that it did or that it would have happened if Judge Nottingham had not been going to strip clubs and bringing USMS guards with him. I really think it was a very small group of people.
I don’t have the personality to do a real crime.
And, as you can see from this blog, I am hard to bait.
I was raised on The Little Engine that Could. I’ll just keep plugging along and will probably eventually get somewhere.
I could/ would pursue pro se rights for 30 years. I feel that it is my cause or at least a cause for democracy that I can advance.
Cheers.
raff: Thank you sir. Your powers of observation are excellent, as is your good taste.
raff,
Thank you, kind sir. As ever, one lives to be of service. And it never hurts to have an excellent wingman like OS either.
OS and Buddha,
You can lead a horse to water……
Good efforts on your part!
“Even my husband went to a movie alone after I said I had too much work.”
Really?
That’s just . . . sad.
But once you file and end up in the slammer for contempt again, at least your poor suffering husband will already be used to going to the movies alone.
Also, that’s not exactly what the Court in Semtek said.
Hire a lawyer to explain it to you.
Not that you’ll listen to him or her either.
Kay, when I was in graduate school, the head of the Department was a colorful character. He also was the no-nonsense type. If I (or anyone else) went to him to tell him about some idea to apply for a grant or what we wanted to do for a research project, he would look at you over the top of his glasses and growl, “What the hell are you doing in my office telling me about it. Get out of here and go do it or stop talking about it.”
That is excellent advice. Either go do whatever it is you want to do or stop talking about it. If you want to file these cases, by all means do so. I am not a lawyer, so I do not know all the in and out of your actions, but those who are lawyers have said you do not appear to have a case. But anyway, if you feel that strongly about it, perhaps you should do whatever it is you are wanting to do, and as my old professor always said, “stop talking about it.”
If you are not going to file, why are you continuing to talk about filing? As they say, actions speak louder than words. Talk, at this point, has been totally unproductive. You have been told by legal experts that you do not appear to have a case and if you pursue further action, you could end up in jail again. It appears to be a risk you are willing to take.
As I see it, based on the exchanges here, you have two options. File your case somewhere or drop it and move on with your life.
PS Everyone has gone off for Friday night. Even my husband went to a movie alone after I said I had too much work.
Under MN state law I have a five year tolling against Faegre & Benson because they claimed an injunction against pro se litigation. They did this, among other places, on the partner’s resume which were published on the law firm website, as well as resume claims that a Faegre partner secured a civil contempt imprisonment of myself.
SEMTEK INT’L INC. V. LOCKHEED MARTIN CORP. (99-1551) 531 U.S. 497 (2001) Justice Scalia delivered the opinion of the Court:
Respondent, for its part, contends that the outcome of this case is controlled by Federal Rule of Civil Procedure 41(b), which provides as follows:
“Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”…
Since the dismissal here did not “otherwise specif[y]” (indeed, it specifically stated that it was “on the merits”), and did not pertain to the excepted subjects of jurisdiction, venue, or joinder, it follows, respondent contends, that the dismissal “is entitled to claim preclusive effect.”….
Implicit in this reasoning is the unstated minor premise that all judgments denominated “on the merits” are entitled to claim-preclusive effect. That premise is not necessarily valid. The original connotation of an “on the merits” adjudication is one that actually “pass[es] directly on the substance of [a particular] claim” before the court. Restatement §19, Comment a, at 161. That connotation remains common to every jurisdiction of which we are aware. See ibid. (“The prototyp[ical] [judgment on the merits is] one in which the merits of [a party’s] claim are in fact adjudicated [for or] against the [party] after trial of the substantive issues”). And it is, we think, the meaning intended in those many statements to the effect that a judgment “on the merits” triggers the doctrine of res judicata or claim preclusion. See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5 (1979) (“Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action”); Goddard v. Security Title Ins. & Guarantee Co., 14 Cal. 2d 47, 51, 92 P.2d 804, 806 (1939) (“[A] final judgment, rendered upon the merits by a court having jurisdiction of the cause … is a complete bar to a new suit between [the parties or their privies] on the same cause of action” (internal quotation marks and citations omitted)).
But over the years the meaning of the term “judgment on the merits” “has gradually undergone change,” R. Marcus, M. Redish, & E. Sherman, Civil Procedure: A Modern Approach 1140—1141 (3d ed. 2000), and it has come to be applied to some judgments (such as the one involved here) that do not pass upon the substantive merits of a claim and hence do not (in many jurisdictions) entail claim-preclusive effect. Compare, e.g., Western Coal & Mining Co. v. Jones, 27 Cal. 2d 819, 826, 167 P.2d 719, 724 (1946), and Koch v. Rodlin Enterprises, Inc., 223 Cal. App. 3d 1591, 1596, 273 Cal. Rptr. 438, 441 (1990), with Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (statute of limitations); Goddard, supra, at 50—51, 92 P.2d, at 806—807, and Allston v. Incorporated Village of Rockville Centre, 25 App. Div. 2d 545, 546, 267 N. Y. S. 2d 564, 565—566 (1966), with Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 399, n. 3 (1981) (demurrer or failure to state a claim). See also Restatement §19, Comment a and Reporter’s Note; 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4439, pp. 355—358 (1981) (hereinafter Wright & Miller). That is why the Restatement of Judgments has abandoned the use of the term–“because of its possibly misleading connotations,” Restatement §19, Comment a, at 161.
In short, it is no longer true that a judgment “on the merits” is necessarily a judgment entitled to claim-preclusive effect; and there are a number of reasons for believing that the phrase “adjudication upon the merits” does not bear that meaning in Rule 41(b). To begin with, Rule 41(b) sets forth nothing more than a default rule for determining the import of a dismissal (a dismissal is “upon the merits,” with the three stated exceptions, unless the court “otherwise specifies”). This would be a highly peculiar context in which to announce a federally prescribed rule on the complex question of claim preclusion, saying in effect, “All federal dismissals (with three specified exceptions) preclude suit elsewhere, unless the court otherwise specifies.”
And even apart from the purely default character of Rule 41(b), it would be peculiar to find a rule governing the effect that must be accorded federal judgments by other courts ensconced in rules governing the internal procedures of the rendering court itself. Indeed, such a rule would arguably violate the jurisdictional limitation of the Rules Enabling Act: that the Rules “shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b). Cf. Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999) (adopting a “limiting construction” of Federal Rule of Civil Procedure 23(b)(1)(B) in order to “minimiz[e] potential conflict with the Rules Enabling Act, and [to] avoi[d] serious constitutional concerns”). In the present case, for example, if California law left petitioner free to sue on this claim in Maryland even after the California statute of limitations had expired, the federal court’s extinguishment of that right (through Rule 41(b)’s mandated claim-preclusive effect of its judgment) would seem to violate this limitation.
Moreover, as so interpreted, the Rule would in many cases violate the federalism principle of Erie R. Co. v. Tompkins, 304 U.S. 64, 78—80 (1938), by engendering “ ‘substantial’ variations [in outcomes] between state and federal litigation” which would “[l]ikely … influence the choice of a forum,” Hanna v. Plumer, 380 U.S. 460, 467—468 (1965). See also Guaranty Trust Co. v. York, 326 U.S. 99, 108—110 (1945). Cf. Walker v. Armco Steel Corp., 446 U.S. 740, 748—753 (1980). With regard to the claim-preclusion issue involved in the present case, for example, the traditional rule is that expiration of the applicable statute of limitations merely bars the remedy and does not extinguish the substantive right, so that dismissal on that ground does not have claim-preclusive effect in other jurisdictions with longer, unexpired limitation periods. See Restatement (Second) of Conflict of Laws §§142(2), 143 (1969); Restatement of Judgments §49, Comment a (1942). Out-of-state defendants sued on stale claims in California and in other States adhering to this traditional rule would systematically remove state-law suits brought against them to federal court–where, unless otherwise specified, a statute-of-limitations dismissal would bar suit everywhere.1
Finally, if Rule 41(b) did mean what respondent suggests, we would surely have relied upon it in our cases recognizing the claim-preclusive effect of federal judgments in federal-question cases. Yet for over half a century since the promulgation of Rule 41(b), we have not once done so. See, e.g., Heck v. Humphrey, 512 U.S. 477, 488—489, n. 9 (1994); Federated Department Stores, Inc. v. Moitie, supra, at 398; Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 324, n. 12 (1971).
….The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. Thus, Black’s Law Dictionary (7th ed. 1999) defines “dismissed without prejudice” as “removed from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim,” id., at 482, and defines “dismissal without prejudice” as “[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period,”…
It is also true, however, that no federal textual provision addresses the claim-preclusive effect of a federal-court judgment in a federal-question case, yet we have long held that States cannot give those judgments merely whatever effect they would give their own judgments, but must accord them the effect that this Court prescribes. See Stoll v. Gottlieb, 305 U.S. 165, 171—172 (1938); Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 290—291 (1906); Deposit Bank v. Frankfort, 191 U.S. 499, 514—515 (1903). The reasoning of that line of cases suggests, moreover, that even when States are allowed to give federal judgments (notably, judgments in diversity cases) no more than the effect accorded to state judgments, that disposition is by direction of this Court, which has the last word on the claim-preclusive effect of all federal judgments:
“It is true that for some purposes and within certain limits it is only required that the judgments of the courts of the United States shall be given the same force and effect as are given the judgments of the courts of the States wherein they are rendered; but it is equally true that whether a Federal judgment has been given due force and effect in the state court is a Federal question reviewable by this court, which will determine for itself whether such judgment has been given due weight or otherwise. …
nationwide uniformity in the substance of the matter is better served by having the same claim-preclusive rule (the state rule) apply whether the dismissal has been ordered by a state or a federal court. …
If, for example, state law did not accord claim-preclusive effect to dismissals for willful violation of discovery orders, federal courts’ interest in the integrity of their own processes might justify a contrary federal rule. No such conflict with potential federal interests exists in the present case. [I didn’t violate a discovery order, there was no discovery]….
Seealso Goddard, 14 Cal. 2d, at 54, 92 P. 2d, at 808 (statingthat a dismissal “with prejudice” evinces “[t]he intention ofthe court to make [the dismissal] on the merits”). The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim….
In its order of dismissal, the District Court, adopting language suggested by respondent, dismissed petitioner’s claims “in [their] entirety on the merits and with prejudice.” App. to Pet.for Cert. 59a. Without contesting the District Court’s designation of its dismissal as “on the merits,” petitioner appealed to the Court of Appeals for the Ninth Circuit, which affirmed the District Court’s order. 168 F. 3d 501… such as would belong to judgments of the State courts rendered under similar circumstances,” and may not be accorded any “higher sanctity or effect.” Since, petitioner argues, the dismissal of an action on statute-of-limitations grounds by a California state court would not be claim preclusive, it follows that the similar dismissal of this diversity action by the California federal court cannot be claim preclusive….
See also 18 Wright & Miller, §4435, at 329, n. 4 (“Both
parts of Rule 41 . . . use the phrase ‘without prejudice’ as a contrast to adjudication on the merits”); 9 id., §2373, at 396, n. 4 (“ ‘[W]ith prejudice’ is an acceptable form of shorthand for ‘an adjudication upon the merits’ ”). See also Goddard, 14 Cal. 2d, at 54, 92 P. 2d, at 808 (stating that a dismissal “with prejudice” evinces “[t]he intention of the court to make [the dismissal] on the merits”)…
We think, then, that the effect of the “adjudication upon
the merits” default provision of Rule 41(b)— and, presumably, of the explicit order in the present case that used the language of that default provision— is simply that, unlike a dismissal “without prejudice,” the dismissal in the present case barred refiling of the same claim in the United States District Court for the Central District of California. That is undoubtedly a necessary condition, but it is not a sufficient one, for claim-preclusive effect in other courts.
——
BLONDER TONGUE V. UNIVERSITY OF ILLINOIS FOUND., 402 U. S. 313 (1971)
The cases and authorities discussed above connect erosion of the mutuality requirement to the goal of limiting relitigation of issues where that can be achieved without compromising fairness in particular cases. The courts have often discarded the rule while commenting on crowded dockets and long delays preceding trial. Authorities differ on whether the public interest in efficient judicial administration is a sufficient ground, in and of itself, for abandoning mutuality, [Footnote 18] but it is clear that more than crowded dockets is involved….
It is clear that judicial decisions have tended to depart from the rigid requirements of mutuality. In accordance with this trend, there has been a corresponding development of the lower courts’ ability and facility in dealing with questions of when it is appropriate and fair to impose an estoppel against a party who has already litigated an issue once and lost. As one commentator has stated: “Under the tests of time and subsequent developments, the Bernhard decision has proved its merit and the mettle of its author. The abrasive action of new factual configurations and of actual human controversies, disposed of in the common law tradition by competent courts, far more than the commentaries of academicians, leaves the decision revealed for what it is, as it was written: a shining landmark of progress in justice and law administration.”…
Res judicata and collateral estoppel are affirmative defenses that must be pleaded. Fed.Rule Civ.Proc. 8(c). The purpose of such pleading is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate. Because of Triplett v. Lowell, petitioner did not plead estoppel and respondents never had an opportunity to challenge the appropriateness of such a plea on the grounds set forth in 402 U. S. Therefore, given the partial overruling of Triplett, we remand the case. Petitioner should be allowed to amend its pleadings in the District Court to assert a plea of estoppel. Respondents must then be permitted to amend their pleadings, and to supplement the record with any evidence showing why an estoppel should not be imposed in this case.
——
Since my underlying claims were in Colorado then this governs
Noting that time requirements in lawsuits between private litigants are customarily subject to equitable tolling,the Court decided that a similar presumption should apply in suits against the Government: “Once Congress has made such a waiver [of sovereign immunity], we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.
[w]e have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass
….
Likewise, if a plaintiff is actively misled, or has in some extraordinary way been prevented from asserting his or her rights, we will permit tolling of the limitations period.” Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (quotations omitted). Montoya v. Chao, 296 F.3d 952 (10th Cir. 07/11/2002)
—-
So basically, in 02-cv-1950 the defendants claimed I had claims preclusion based on claims in other courts being dismissed while I searched for my cause of action, but in which there were no defense appearances no expense to them. I quoted Semtek v. Lockheed and Blonder Tongue but they refused to acknowledge these quotations as well as the other Supreme Court decisions that I quoted such as
Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) The District Court also did not issue a memorandum opinion making it difficult to appeal. Therefore I was ” in some extraordinary way been prevented from asserting his or her rights,” therefore Montoya v. Chao, 296 F.3d 952 (10th Cir. 07/11/2002) applies no matter where I go and it states unequivocally “we WILL permit tolling of the limitations period.”
So they can’t take back their rulings and decide that they won’t allow equitable tolling because they hate me or because I am pro se. No delay was my fault. I met every deadline and quoted all the legal authorities necessary.
There is a Colorado tolling statute too.
So they spoiled the evidence through their misconduct without causing claims preclusion or bringing a statute of limitations defense.
Make sense?
Mike
Actually according to the Supreme Court in Semtek v. Lockheed a complaint dismissed with prejudice is only barred in the same federal court and doesn’t cause claims preclusion or res judicata in another court. That was a 2002 decision.
I don’t see why federal court should be any more difficult than state court. At least in federal court they have PACER.
My lawyer William Hibbard strongly advised me not to pursue my claim in state court. He said I would NEVER EVER get a fair hearing. I dismissed a case there based on his recommendation that I had already paid to file.
The statute of limitations could be worked around through equitable tolling or by reopening old cases. The big problem I have is spoilation of evidence — my potential witnesses won’t remember, the City of Steamboat went out of its way to throw out documents after, as shown on their verified attorney bills, advising staff not to research my claims, and even I myself have forgotten some details.
What I found is that the lawyers didn’t want to review my claims even when I offered to pay. My impression is that they didn’t want to know about judicial misconduct and attorney misconduct because they didn’t want to report it. That is easy to prove because it is settled law that neighbors have a right to enforce the zoning but Joel Thompson denied that and the articles show that the lawyers who were involved in my case knew about the DEA arresting his girlfriend before she was arrested. One of them, a prosecutor, was also fired for cheating on his expense account. Lawyers were telling me it was a “can of worms”.
I know that I have tolling on my Privacy Act claims against the government and my plan is either to get $$ from them or to get a rule reinstating civil contempt in federal courts, changing the Privacy Act, changing 18 USC 242 etc. Like I said, misery loves company, and if I can’t get my rights, then I will risk an adverse decision that hurts other people, because what is the value of a law that can’t be enforced in court.
My thought is that my 3rd party lawsuits must be valued according the Rule 804 (b)(6) Forfeiture by Wrongdoing see Giles v. California 128 S.Ct. 2678 (2008). Basically the Witness Intimidation Act, which has many subsections, includes one which says that if the witness does not appear after threatening statements then the crime is done. That happened to both my husband and myself in two different lawsuits totaling $18 Million. So my thought is that if I could make that stick, since I am already accustomed to and happy with a middle class life style, I could use a big portion of the funds for development of pro se friendly software, attorney regulation software, funding state referendums to make attorney regulation an elected office, and possibly legal forms to make Better Bar Associations as franchises. I was also thinking of buying to starting a law firm but I found out I am not allowed to do that because I don’t have a law license. I am already on record from 2003 as telling the Steamboat Pilot that I wanted to use a portion of a lawsuit to fund a non profit to regulate attorneys in Colorado.
Basically I look at the lawsuit as an opportunity to liberate funds from bad people which I would then have a moral responsibility to use in a responsible fashion.
As I understand it, if I were to win against the government, they could file a motion to bring in Lloyds of London, the law firms, and other defendants to contribute to the cost of the judgment. I used to be a financial analyst and had sold stock in start ups. My defendants have a lot of money despite the bad economy. Kevin and Jane Bennett alone must be worth about $3 Million.
If I could win on 804(c.)(6) then it would be cheap, simple and fast — no witnesses etc. I can prove my prima facie case.
I live in Madison WI and just recently I looked on the Internet at every plaintiffs lawyer in Madison. None of them listed any Privacy Act experience and none of them advertised that they would do malicious prosecution or defamation cases.
I looked at every law firm in D.C. Again none of them claimed that they would no malicious prosecution, defamation or Privacy Act. Most of the law-firms were defense firms. Of the plaintiffs’ firms most of them were very small and also offered DUI defense. I contacted one that specialized in employment law but they said their budget for contingency cases was used up.
The government has been successful in discouraging law suits by basically expanding pleadings thru baseless defenses. At least I can prove this because they recently wrote three times that DOJ can exempt itself from its responsibilities under 5 USC 552a (e)(7), which conflicts with the plain language of the law. And according to DOJ’s own website, a Privacy Act First Amendment record is already recognized as including a third party lawsuit. DOJ already lost on a case in which they had records of a lawyer who had sued his previous employer, a law firm.
Kay, I have a J.D. degree, but I wouldn’t attempt to remove your appendix. Litigating in any court is difficult pro se. At the federal level it becomes virtually impossible.
Here’s the problem. You are barred from relitigating claims that have been dismissed with prejudice. Any appellate rights you may have had as to those matters have long since expired. Statutes of limitation have likely barred any potential claims you may have had arising out of the same incidents which were not already barred by res judicata or collateral estoppel.
Not all lawyers charge a bloody fortune to review potential actions for clients. I have never gotten rich practicing law, but that’s not why I went to law school. I have no doubt that you could locate a competent attorney to review the entire matter with you, but looking for advice on the internet is like looking for a potential mate, mostly fruitless and potentially dangerous.
Yeah, not knowing what you are talking about or doing procedurally in court tends you make you lose your case.
Who’d have thunk it!
Liz Steiner is an example of another PRO SE whose case was dismissed in Federal Court of Colorado. My understanding is that she has an MD degree from Yale.
She got a document from Magistrate Schlatter, same magistrate that I had, which said that he surveyed his colleagues and they were unable to identify ANY PRO SE who won damages in federal court of Colorado even though they have had a high level of pro se filings for years.
seen one sorry not scene one
Please agree or disagree with the following
1.) Malicious prosecution is a recognized cause of action
when a case such as mine is dismissed or other error is admitted.
2.) Defamation is a recognized cause of action
a.) accusation of criminal acts — i.e. that I criminally harassed Jane Bennett
b.) accusation of professional incompetence –i.e. I don’t understand even simple zoning and I have a masters degree from MIT in city planning
3.) First Amendment Criminal Prosecution if a recognized cause of action when
a.) Another party complained about a zoning violation and got $10,000 paid to her
b.) I complained about zoning violation and was criminally charged.
c.) Sole acts listed on police report was complaining about zoning and constitutional violations
d.) Private party (Jane Bennett)was the sole signature on the sole charging document
e.) No written statement of probable cause
f.) Judge claimed not to have any information on case
g.) Registry of actions shows no arraignment
h.) No trial
i.) Restraining order issued on sole basis that I (i) molested neighbor by complaining about zoning (ii) criminal prosecution documents signed by neighbor
4.) Recognized damages under 1983 / 1985(3)
a.) Emotional distress
b) Loss of personal reputation
c.) Loss of professional reputation
d.) Legal expenses
e.) Cost of flight
Law in Colorado
1.) Very few plaintiffs lawyers
2.) No plaintiffs lawyers advertising on Internet that will take cases on a percentage except for auto accidents
3.) Federal judge publicly stating that initial cost for
federal lawyer done lawsuit is $100K
4.) David Christe spent over $100K suing the City of Steamboat Springs and had to drop suit because of legal expense
5.) Marvin Heemyer (Grandby CO bulldozer rampage) paid 50 K to Dietze and Dietze just to research and file a complaint
6.) Quigley v. Rosenthal Colorado defamation judgment = $10.5 Million (no property damage claimed)
Observations re pro se in federal law
1.) USCourts used to publish statistics on pro se
2.) USCourts has stopped publishing statistics on pro so even though it collects them.
3.) No records of ANY pro se damage awards in last few years
4.) Many employment actions brought in federal court by phds, mds etc. and they all lose always.
5.) 10th Circuit has issued NO PRO SE orders against people with phds who filed only one lawsuit with no explicit finding of fraud on their part.
6.) All criminals allowed to proceed pro se in civil matters — habeas, prisoner conditions etc. — no matter what the charge was.
7.) Practically all no pro se orders that I know of quote as case law a guy who was a convicted criminal and a prisoner and who filed many in pauperous lawsuits in which he called the judges names and threatened them.
8.) I have studied PRO SE orders and have never scene one that instructs the pro se plaintiff to read a law book or rewrite to an outline or a sample.
Observations re pro se plaintiffs
1.) Robert Kearns, Inventor of Intermittent Wipers won over $10 M pro se against Ford for patent infringement
2.) Brandon Moon, a white engineering student, could not get a court to consider his arguments about eye witness identification at all when he was pro se and was freed only when the Innocence project took his case. He recently completed a masters degree in computer science so obviously was intelligent
3.) Pro se plaintiffs burdened by different procedures
a. Not allowed oral hearings
b. Not allowed discovery
c. Not allowed mediation
d. Constantly belittled.
Agree on the Martindale observation. I was using that as a kind of hypothetical benchmark. I am acquainted with several who have the top M-H rating who I would not let handle a parking ticket for me. I know one attorney who has the lowest M-H rating and he is hell on wheels in the courtroom. I have seen him pull of a couple of feats of legal legerdemain that should have been impossible.
On the other hand, the prospect of a good payday on a PI case is a powerful incentive to do things right.