FILED IN APPEALS COURT

 

                 IN THE UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

NO.  09-1351

 

 

STEVEN L. REED, PLAINTIFF/APPELLANT

VERSUS

CHOICE HOTELS INTERNATIONAL, ET AL DEFENDANT/APPELLEE

 

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI (Southern)

_____________________________________________________________

BRIEF OF APPELLANT

____________________________________________________________

 

Steven L. Reed, Pro Se

1441 South Estate Ave.

Springfield, Missouri 65804

stevenlloydreed@hotmail.com

417-882-2942

 

Counsel for Appellant

                     

SUMMARY OF CASE

          This case involves interpretation of the Federal and State

Constitution concerning freedom of speech and the right of the citizens

to participate in influencing and participating in governmental

functioning. 

          The initial questions presented is whether the claims arose from

the police misconduct and cover-up of the facts, (lying on a police

report) and using bogus charges of trespassing at a publicly

advertised public political event in which the public was invited. 

The Second question involves the participation of the meeting of

the minds of governmental authorities, the police, Choice Hotels and

Clarion officials including the chief of security to violate the civil rights

of Steven Reed and the other parties at the event. 

          The third claim concerns mental stress and anguish in that

Appellant Reed was illegally arrested and detained and was actually

sitting in a car that was pulled forward and told he was heading to jail

during a four hour wait.  Over 300 people including 3 TV cameras

and several news paper reporters saw the event which included a total

of 6 police cars and officers.  It was quoted in the Sunday paper that

Steven Reed was arrested at the event for handing out leaflets that said

“Draft Claire she inspires people”.  The late Bee Payne Stewart said it

was the worst thing she had ever seen. 

 

The fourth question and issue which the District Court erred and failed to

address is that the City has had a habitual track record for arresting

Appellant/Plaintiff Steven Reed?

          Lastly, rather than admitting mistakes and settling the case most of the

parties involved have tried to pull every rabbit they could out of their

hats to create a web of legal maneuvers to make the case go away which

has caused more mental stress and anguish for Appellant Reed and

made him even more determined to try and attain some small amount of

justice.  A God-fearing people must have a civil government of public

servant officials that are fearful of not protecting the unalienable rights of its

citizens, if a group of public officials pursue tyranny no persons life or

property is safe from confiscation with the loss of freedom and liberty to

follow leading to bondage and slavery to those officials, who have breached

their oath of office to serve and protect the people.

         

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

Summary of the Case……….......................................................................... i

Table of Contents……...…………………………………………………….ii

Table of Authorities………………………………………………….……..iv

Jurisdictional Statement……………………………………………………..1

Statement of the Issues……………………………………………………....1

Statement of the Case………………………………………………..............4

Statement of Facts…………………………………………………………...5

Summary of Argument………………………………………………………8

Argument…………………………………………………………………...12

A.  STANDARD OF REVIEW AND CONTROLLING LAW…………...12

B. DISPUTED MATERIAL FACTS LISTED AS FACTS AND USED  GUILTY PLEA NOT AUTHORIZED BY APPELLANT AS THE MAIN REASON FOR SUMMARY JUDGMENT AND THE ORDER

DISMISSING THE ENTIRE COURTACTION.………………………….15

 

C.   A JURY MUST DECIDE IF CIVIL AND HUMAN RIGHTS VIOLATIONS OCCURRED.  COURT ALSO REFUSED TO ADDRESS THAT SPRINGFIELD POLICE LIED ON THE POLICE REPORT WHICH ITSELF IS A FELONY AND WHETHER CHOICE/CLARION HOTELS LIED ABOUT THE EMPLOYMENT OF MOHHAMAD SALEM……………………………………………………………… ……16

 

D.   PLAINTIFF WAS ENTITLED TO A JURY OF CITIZENS TO DECIDE IF THIS CASE WAS A CONTINUATION OF THE HABITUAL VIOLATIONS OF PLAINTIFF’S/APPELLANT’S CIVIL AND HUMAN RIGHTS AS A UNITED STATES CITIZEN……………………………..17

 

E.  PLAINTIFF WAS ENTITLED TO HAVE A JURY DECIDE IF THE EVENT WAS AS ALWAYS ADVERTISED FOR 100 YEARS AS A PUBLIC EVENT……………………………………………….…………..19

Conclusion………………………………………………………………….79

Certificate of Service…………………………………………….…………86

Certificate of Compliance…………………………………………….……88

Addendum………………………………………………………..………...57

State of Missouri Department of Corrections Letter……………………...A-1

 

Missouri Advisory Committee Letter…………………………………….A-2

 

INJURIES……………………………………………………………...…A-7

 

Copy of Stipulation for Dismissal………………………………………..A-9

 

Copy Chief Loveland Police Chief Memo……………………………....A-12

 

Copy Police Report……………………………………………………...A-13

 

Columbia Newspaper……………………………………………………A-14

 

Arrest Pictures…………………………………………………………..A-15

 

TABLE OF AUTHORITIES

Vital v. Interfaith Medical Center 168 F3d 615 (1999)…………..................9

Kofoed, v. International Brotherhood Of Electrical Workers, Local 48 237 F.3d 1001 (9th Cir. 2001)…………………………………………………..11

O'Donoghue v. United States, 289 U.S. 516, 531, 53 S.Ct. 740, 743, 77 L.Ed. 1356(1933)…………………………………………..………............11

Willie James Glover, Plaintiff-Appellee Cross-Appellant, v. Alabama Board of Corrections, Et Al., Defendants, James Towns, Defendant-Appellant Cross-Appellee., 660 F.2d 120(5thCir.1981)…………………………..…..12

White v. White, 886 F.2d 721, 722-23 (4Cir.1989)………….......................12

Reeves v. Johnson Controls World Servs., Inc. , 140F.3d144,…………..…12  

Samuels v. Mockry , 77 F.3d 34, 35 (2d Cir.1996)(percuriam)….................12

Skubel v. Fuoroli , 113 F.3d 330, 334 (2d Cir.1997)……………….……...13

SWIERKIEWICZ v. SOREMA N. A. 534 U.S. 506………………...…….14

Foman v. Davis, 371 U.S. 178 (1962),……………………………………..14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)…………………….24

Johnson v. Knowles  Appeal from the U S Dist. Court for the Eastern District of California (1997) 07-15221 9th Circ (2008)……………………17

 

City of Canton Ohio v. Harris 489 US378 (1989),………………...............17

Oklahoma City v. Tuttle, 471 US 808 (1985)………………………............17

Monell v.  Dept. of Soc. Svs., 436 US 658…………………………........ ....18

Griswold v. Connecticut, 381 U.S. 479 (1965)…………………………….22

Conley v. Gibson, 355 U. S. 41…………………………………………….29

Lambert v. People of the State of California, 355 US 230; 78 Sup. Ct. 240….............................................................................................................30

Dennis v Sparks 449 US 24………………………………………………...31

Dioguardi v. Durning, 139 F.2d 774 (1944)…………………….................31

Partridge v. Two Unknown Police Officers , 791 F.2d 1182, 5th Circuit 1986………………………………………………………………………...33

SWIERKIEWICZ v. SOREMA N. A. 534 U.S. 506…………………………33

Barksdale v. King (United States Court of Appeals, Fifth Circuit 1983 (699 F.2d 744  )……………………………………………………………...…..34

 

Rule 15(a) of the Federal Rules of Civil Procedure………………………..35

 

Foman v. Davis, 371 U.S. 178, 182 (1962)………………………………...35

 

Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)…….38

 

Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc., 792 F. Supp. 969, 970 (S.D.N.Y.), aff'd by summary order, 983 F.2d 1048 (2d Cir. 1992)...……..38

 

Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 350 (9th Cir. 1963)……………………………………………………..............................39

 

United Cities, 995. F. Supp. At1284………………………….....................39

 

Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis 29520 (2nd Cir.)….41

 

Saenz v. Lucas, 07 Civ. 10534, 2008 U.S. Dist. Lexis 69571 (S.D.N.Y.)....41

 

Title 42, U.S.C., Section 14141…………………………………………….44

 

Wilson v. Garcia 471 US 261 (1985)………………………………...…….47

 

U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93)………………...………...48

 

MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91)………...……………..48

18 USC 4 18 § 4…………………….……………………………………...48

18 USC 3332……………………………………………………………….48

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 998)..49

Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis 29520 (2nd Cir.…..50

Saenz v. Lucas, 07 Civ. 10534, 2008 U.S. Dist. Lexis 69571 (S.D.N.Y.)....51

Boddie v. Connecticut, 401 U.S. 371, 379 (1971)…………….....................52

Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070-1071 (1985)…………..52

BODDIE V. CONNECTICUT, 401 U. S. 371 (1971)………………….......53

PHIPPS v. KING, US Ct of App, 6th Cir 866 F.2d 824   (1988)…….…….53

Aetna Life Ins. Co. v. Lavoie 475 US 813, 825; 106 S Ct. 1850 (1986)…...54

 

 

JURISDICTIONAL STATEMENT

          Case commenced pro se by Steven L. Reed on April 1, 2005, seeking

 

damages for arrest on trespassing charges because of passing out literature

 

supporting Claire McCaskill at Clarion Hotel in Springfield, Missouri on

 

04/05/2003.  On 11/07/2008 the District Court granted Summary Judgment

 

to City of Springfield and the Order Dismissed the case.  On 01/02/2009

 

Appellant filed a timely notice of Appeal pursuant to Rule 4 of the Federal

 

Rules of Appellate Procedure.  This court has jurisdiction over appeal under

 

28 U.S.C. & 1291.

 

STATEMENT OF THE ISSUES

          Appellant raises the following issues on appeal:  1.  Whether the

District Court erred/failed to address numerous Motions, Legal Arguments,

and Exhibits submitted by Plaintiff.  The Court allowed Choice Hotels to

claim they had nothing to do with the case and/or Clarion Hotels, yet John

G. Schultz Choice Hotels attorney said (on page 5 of June 2, 2005 Motion

(DOCUMENT NUMBER 20), that “If there were any violation of plaintiff’s

rights at all they were at the hands of an employee who was acting under his

own devises, and not in accordance with the policy of defendant Choice

Hotels.”  2.  Court erred by not allowing a jury to decide if Reed had the

right to Campaign for a  female Governor at Jackson Days “Public Event”

allowing  citizens to be involved in Political/Public issues and the

Constitutional Right of Free Speech and practice of the basic principle and

symbol of the United States?  3.   The court failed to address the City

of Springfield Police possible felony charge of falsifying police report to

hide actions (false arrest).  4.  Magistrate Judge erred by not addressing: 

Reed was engaging and participating in influencing governmental

functioning/freedoms the main principle of a Free/Open Government.  The

police and defendants actions restrained Plaintiff Reed from his mission

(legal activity), and actually stopped them all together.  5.  The Court erred

by failing to respond to EXHIBITS Plaintiff Motion of April 2, 2008,

pictures showing it daylight when Police arrived and total darkness when

Appellant  was released hours later: 

The District Court in (Dismissal order Document 137 filed 11/07/2008), said under “Undisputed Fact Number 22:  Plaintiff and Mr. Jeff Kenkel were detained, ticketed, and released.  They were never taken to the police station nor were they taken to jail…” 

6.  Court erred by not admitting the real facts (PAGE 128 Springfield

 

Deposition, Transcript of the Testimony of Reed Dated March 19, 2008),

 

while illegally detained in the police car for over an hour and a half

 

Appellant Reed questioned through the separation window “Are we going to

 

jail?”  Officer said “yes you are going to jail.”  Reed said “can I make a call?

 

And he yelled “when you get to jail”.  Reed was handcuffed and was

 

wanting to know about calling his employer to call in sick or something. 

 

It was illegal detainment of nearly four hours.  The case involves many

 

errors by court, city and all appellees attorney’s like proclamation of

 

disputed facts as if undisputed stating the facts wrong), and incorrect

 

conclusions of law concerning issues revolving around freedom of the

 

citizens to participate and decide their future through open participation in

 

decision making “DEMOCRACY” which we fought every war for.    7.  The

 

Court failed to answer Questions that remain for a jury to decide whether

 

Reed’s rights under the US Constitution and Federal/State laws were

 

violated when seized from handing/passing out political literature, in the

 

public general interest and welfare, in front of a publicly advertised

 

public event and place, as people entered for a public political event of a

 

political party, of which he was a part of having been a supporter and

 

candidate thereof; handcuffed and detained in a police car for an extended

 

period of time, arrested and charged with trespassing, pled guilty against his

 

will by malfeasance of an ATTORNEY HE TOLD TO PLEAD HIM NOT

 

GUILTY, found guilty without proper due process and whether he was

 

denied his RIGHT of a jury being permitted to consider the real facts and

 

evidence.  8.  The District Court erred on document 147 filed 02/10/2009 in

 

Dismissing all the Defendants in this case using petty reasons.

 

9.  Magistrate Judge erred by allowing this case to go on from 2005 until

 

early 2007 without setting up any scheduling order. Clearly the sparks flew

 

when Reed filed on February 2, 2007 Plaintiff’s Request for Court Ordered

 

Production of Evidence.  The request said in part: 

 

Plaintiff Reed request Court to ask for a release of all Greene County, City, State, Federal (including FBI, and Secret Service), records to be released so Plaintiff can properly prepare his case.  It may establish prior and repeated attempts by the City of Springfield to stop his community and political activism.

 

By 07/23/2007 Court denied the request and ordered that proposed

 

scheduling deadlines be submitted to the court in 15 days.  Production of

 

evidence would show serious issues of repeated/habitual civil and

 

human rights violations and if was ever GRANTED BY THE COURT

 

WOULD MAKE CLEAR THE CASE IS NOT FRIVOLOUS.

 

STATEMENT OF THE CASE

 

Longtime community/political activist, Appellant was arrested in

 

violation of his constitutional rights.  Jackson Days has been the

 

largest Political Event held by the Democratic Party in MO always been

 

billed in the paper as public event.  Appellant seeks to establish that the

 

Fourth Amendment and other Constitutional Rights of Speech and Assembly

 

the United States Constitution secures him an individual right to campaign

 

for candidates for office.  Appellant was handing out handbills that said

 

“Draft Claire” She Inspires people.  Reed had established a statewide

 

campaign to get McCaskill to run for Governor of Missouri.  Ms. McCaskill

 

went on to become a current US Senator in Missouri.  The United States

 

fought all wars under premise of promoting Democracy.  Appellant filed a

 

civil rights violation case in federal court.  It appears the parties involved

 

instead of admitting wrong doing proceeded to use excuses and legal webs

 

to encourage the dismissal of the case.  The Court allowed service squabbles

 

for a year and dismissed all the Defendants leaving only Springfield, MO.

 

STATEMENT OF FACTS

 

1. Appellant is an activist, who has been a candidate for office (including on

the Democratic Party), founded the Draft McCaskill for Governor campaign,

started and worked on statewide efforts to expand Rail Passenger Service,

Technology Parks, Community Building in Nixa, a branch of Ozarks

Technical College in Christian County, and helped campaign for many local,

state, and national political candidates.  All these efforts along with several

voter registration drives were done on a volunteer basis.

2.  Appellee/Defendant Clarion Hotel is a public accommodations business

 

in Springfield, MO is overseen in operations by Appellee Choice Hotels.

3.  Appellee/defendant City of Springfield, MO a Mo. municipal entity, with

municipal court and  Police Dept.  4.   April 3, 2003, while distributing

literature regarding a potential primary election candidate, outside a public

place, Clarion Hotel, Springfield, MO  Appellant Reed was in view of the

public (including politically allies and associates), roughly handcuffed,

detained in a police car, and charged with trespassing.

5.   City of Springfield, MO police officers made the Arrest, roughly

handcuffed Appellant, detained him handcuffed in a police car for over four

hours, told him repeatedly he was going to jail, and charged him with

trespassing.   6.  Appellee Springfield, MO Police Officer Gale Campbell

was first officer on the scene, roughly handcuffed Appellant while talking

down to him as if he was low life person, and assisted with detaining him

handcuffed in a car, telling him he was going to jail, and ultimately charging

him with trespassing.   7.  Clarion/Choice Hotel employee, Appellee

Mohammed Salam and  Greene County Democratic Party County

Committee Chairman, Steven Stepp, signed the complaint against Reed.

8.   Appellant hired attorney Robert Childress to plead him NOT GUILTY.  

Reed instructed Childers to plead him not guilty.  Attorney Childress pled

him GUILTY to the false trespassing charge and the municipal judge

immediately placed him on probation. It seems apparent that when the City

found out who made an appearance in court they decided to use its influence

knowing if Reed pled guilty for false trespassing charges it would make civil

lawsuits against the conspirators to violate Appellant’s rights very difficult

to win.   9.  Because employee(s) with Clarion Hotel, a business with public

accommodations, had been involved with his arrest, Appellant filed with the

Missouri Commission on Human Rights and received a “RIGHT TO SUE

NOTICE” from them plus the Director of the Commission told him she was

very upset with how badly Appellant had been treated as he merely was

attempting to exercise his rights to participate in the free and fair elections,

expressing freedom of speech and freedom of association.  

10.  On  April 1, 2005, Appellant filed a twenty count pro se complaint

with the US District Court for the Western District of Missouri, Southern

Division against eight defendants pursuant to federal and state laws,

including 42 USC 1971, 1983, 1985, 1986, 1988; US Constitutional

provisions; and pointing out malicious prosecution, abuse of process, false

arrest, assault and battery and defamation of character, conspiracy to deny

civil and political rights, intentional infliction of emotional distress and

mental cruelty, interference with right to equal access to political events,

denial of equal access, discrimination, defamation of character and standing

within the community, negligent infliction of emotional distress. 

11.     For the next year pro se Appellant had to play tag with trying to

properly serve the defendants, who kept evading service.   The US Marshals

said they no longer helped with service even if paid and the Court offered no

suggestions nor issues orders requiring certain defendants to accept service. 

12.   The Court managed to merely issue DENIED orders in over 100

motions submitted by Appellant.   13.   The Court even refused to permit

Appellant to amend the Petition.    14.   The Court dismissed all defendants

except for Springfield, MO.   15.   The Court required Appellant to submit to

defendants depositions and interrogatories without counsel, while seeking

additional time, and while he was under extreme duress.  Appellant

requested several times for a court appointed civil rights lawyer and the

court erred by refusing to address the issue.  16.   Appellant objected

repeatedly to the so called undisputed facts as submitted by the City of

Springfield, MO and it should be considered fraudulent for disputed facts to

be clothed as undisputed.  17.   The Court issued a Summary Judgment

based on those so called undisputed facts and dismissed all counts of the

case with or without prejudice and even denied a request for a federal grand

jury investigation.   18.   Then even though Appellant was without

employment and lacked funds to proceed on appeal, Magistrate Hays

declared the case frivolous and denied his application for declaration as a

pauper. 

SUMMARY OF ARGUMENT

 

The district court failed/erred by not acknowledging and treating

 

as petty issues, the overall principle of citizen involvement.  If Magistrate

 

Judge had went to Jackson Days and started handing out flyers that Claire

 

McCaskill inspires people she would not have been arrested with 300

 

people, 3 tv cameras rolling, and a news-paper watching.    If this case is

 

decided against the Plaintiff there could be grave Consequences in the

 

Future when Presidents meet with Other countries over Human/Civil Rights  

 

and Democracy Issues.  Foreign leaders could point out that people were

 

arrested for supporting a lady for Governor who is now a United States

 

Senator.  Clearly with no punishment of any kind the City Police may

 

arrest someone else in the future of any age that would be too afraid to speak

 

up let alone file a federal case. 

 

Specifically the issues in this appeal are:

      1.  Magistrate Hays erred in granting City of Springfield, MO a

Summary Judgment.  2.  Magistrate Hays failed to meet the Vital v.

Interfaith Medical Center 168 F3d 615 (1999) standard for notice

regarding the nature and consequences of a Motion for Summary Judgment. 

      3.   The District Court had before it evidence of a dispute; including

even some of the so called undisputed facts were and remain in dispute.              

4.  Magistrate Hays should not have previously dismissed defendants

from the case.   By this reference, Appellant includes each of those he

attempted to have as defendants and includes them as part of this

appeal whether otherwise referred to herein or not.    5.   Magistrate Hays

erred in refusing to permit Appellant Reed to amend his original pleading

and thereby cure some of the defaults defendants and the Magistrate used

against him.   6.   The Court erred in refusing to grant a continuance for

Appellant to submit to a deposition and interrogatories to the City of

Springfield, MO thereby requiring him to be at the mercy of the City’s

attorney without legal counsel himself and while under extreme duress.

      7.   The Court ignored the fact there is at least a 13 year and continuing

pattern to defendant City of Springfield, MO and City of Springfield Police

Department having violated the rights of Reed’s civil and constitutional

rights and to openly participate in free and fair elections, which includes

more than mere voting on election day.   8.  Abuse of discretion by

Magistrate Hays to refuse to accept supplemental jurisdiction over what she

declared were state claims she knew or should have known were at the time

of her granting Summary Judgment to Springfield and ultimately closing the

case time barred for filing in state courts.   9.  Abuse of discretion and

contrary to federal law for Magistrate Hays to deny Appellant’s Request for

a Federal Grand Jury to look at possible civil rights violations.  10. Abuse of

discretion for Magistrate Hays to declare the case frivolous and Abuse of

discretion for Magistrate Hays denying Reed’s application to proceed on

appeal as a pauper.   11. Magistrate Hays erred in failing to give reasons for

declaring the case frivolous.    12.  Point of Order and reason for a

mistrial/lack of jurisdiction in that one party to the Civil Action did not sign

off on allowing the Magistrate Judge to take over the case:  In preparing this

appeal, Appellant discovered Document #52 online:

http://www.websupp.org/data/WDMO/6:05-cv-03133-52-WDMO.pdf

Appellant does not believe he was provided a copy so he could object

and that furthermore he does not believe he was ever provided a

copy of any District Court judge’s ruling on the Magistrate’s Report

and Recommendation (Doc. #52).  In any case, according to what Magistrate

Hays revealed in document #52 she took jurisdiction over the case, in spite

of the City of Springfield Police Department not consenting to the case

being handled by a magistrate pursuant to 28 USC 636 and Rule 73 FRCP. 

It was plain error for Magistrate Hays to proceed without all parties

consenting to exercise of jurisdiction by US Magistrate.   It was manifest

injustice for Appellant’s Motion to Withdraw Any Permission or Implied

Permission Given to Magistrate to Handle This Case to have a Report and

Recommendation made by a magistrate, who lacked jurisdiction to issue

anything in the case.   Appellant had a right to a fair and just tribunal at all

stages of the case.   Pursuant to 28 USC 636 and Rule 73 FRCP all parties

had to voluntarily consent.  Certainly there were also extraordinary

circumstances that caused Appellant Reed to want his own consent

to be vacated.   Appellant thought an attorney within the Democratic

Party leadership was trying to help reach a settlement in the case.  

Once he realized that attorney was instead working with the City of

Springfield city attorney to get the entire case dismissed and had led

him down a dead end path otherwise, such as leading him to believe

the consent paper was only procedural and certainly did not point out

that he was consenting to a mere magistrate handling or mishandling

the entire case. Where the magistrate judge has not received the full

consent of the parties, he has no authority to enter judgment in the case, and

any purported judgment is a nullity.” See Hajek, 186 F.3d at 1108; Aldrich

v. Bowen, 130 F.3d 1364, 1365 (9th Cir. 1997).” Kofoed, v. International

Brotherhood Of Electrical Workers, Local 48 237 F.3d 1001 (9th Cir.

2001)   “The Supreme Court has stated that the Constitution requires that

the judicial power of the United States be vested in courts having judges

with life tenure and undiminishable compensation in order to protect

judicial acts from executive or legislative coercion. O'Donoghue v. United

States, 289 U.S. 516, 531, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933). A

decision without voluntary consent by a magistrate, a non-Article III judge,

would undermine this objective of the Constitution and might violate the

rights of  the parties. Willie James Glover, Plaintiff-Appellee Cross-

Appellant, v. Alabama Board of Corrections, Et Al., Defendants, James

Towns, Defendant-Appellant Cross-Appellee., 660 F.2d 120 (5th Cir.

1981)

ARGUMENT

A.  STANDARD OF REVIEW AND CONTROLLING LAW

This Appeal involves a review of a court granting summary

judgment to Springfield and also dismissing all the other defendants for a

number of petty and or inappropriate reasons.  The court is asked to use the

following standard for review:

1.  Appellant has been pro se throughout the case.  The Fourth Circuit Court

of Appeals has held that pro se pleadings ‘must’ be held to ‘less stringent

standards than pleadings drafted by attorneys and must [be] read . . .

liberally.’ White v. White, 886 F.2d 721, 722-23 (4 Cir.1989).

2.  “…We review the District Court's grant of summary judgment de novo.

See Reeves v. Johnson Controls World Servs., Inc. , 140 F.3d 144, 149

(2d Cir.1998). "Summary judgment is proper if, viewing all facts of record

in a light most favorable to the non-moving party, no genuine issue of

material fact remains for adjudication." Samuels v. Mockry , 77 F.3d 34,

35 (2d Cir.1996) (per curiam). In assessing whether summary judgment

 was appropriate, "we resolve all ambiguities and draw all reasonable

inferences against the moving party." Skubel v. Fuoroli , 113 F.3d 330,

334 (2d Cir.1997). We conclude that the District Court erred in granting

summary judgment for two reasons: first, because it is not clear from the

record that Mr. Vital had been informed or otherwise understood the nature

and consequences of a motion for summary judgment and, second, because

the District Court inappropriately resolved an issue of fact on that

motion…”  Vital v. Interfaith Medical 168 F3d 615 (1999)

3.   Dismissal of vital parties:

      1.  Magistrate Hays permitted Choice Hotels, Clarion Hotel, and

Mohammed Salam to use deception to deny full review of the issues in this

case.  Although it is obvious in ads, on vehicles, (vans that drive around

Springfield MO with both logos on them), common public knowledge that

Choice Hotels/Choice Hotels International have a relationship with Clarion

Hotels, including the one in Springfield, Missouri where incidents in this

case took place, the Court accepted fraud upon the court that there was not

any such relationship.  Full discovery of those parties would have revealed

the actual relationship, however.

2. Likewise,  Mohammed Salam, was obviously an employee or

contractor for Clarion Hotel of Springfield, Missouri and/or of Choice

Hotels/Choice Hotels International.    But, he was permitted to evade service

and the Court again accepted the fraud presented to it by Defendants acting

as though there was no relationship between him and Clarion Hotel/Choice

Hotels/Choice Hotels International.   3. Full discovery and then a jury was

needed to decide who was liable to Appellant Reed and to what degree each

were liable.    B.   Springfield, MO Police Officer Gale Campbell also was a

vital party to the case and should have not been dismissed.  One has to

question why she no longer works for the City of Springfield?   Dismissal of

vital parties to the case is very unfair to not only Appellant, but to all other

parties or potential parties and gives an appearance of denial

of justice.  See Conley v. Gibson 355 US 41; Dennis v. Sparks 449 US 24;

Partridge v. Two Unknown Police Officers 79F2d 1182 (5th Cir 1986);

Dioguardi v. Durning 139 F2d 774 (1944).

         C.   “…It seems incongruous to require a plaintiff, in order to survive a

 

motion to dismiss, to plead more facts than he may ultimately need to prove

 

to succeed on the merits if direct evidence of discrimination is discovered.

 

73...” SWIERKIEWICZ v. SOREMA N. A. 534 U.S. 506

 

4.   Although it is within the discretion of the court whether a pleading may

be amended after defendants have responded the US Supreme Court

stated in Foman v. Davis, 371 U.S. 178 (1962), “…if the underlying facts

or circumstances relied upon by a plaintiff may be a proper subject of relief,

he ought to be afforded an opportunity to test his claim on the merits. In the

absence of any apparent or declared reason--such as undue delay, bad faith

or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of the allowance of the amendment, futility of the

amendment etc. --the leave should, as the rules require, be `freely given…”

Foman, 371 U.S. at 182.

B. DISPUTED MATERIAL FACTS LISTED AS FACTS AND USED  GUILTY PLEA NOT AUTHORIZED BY APPELLANT AS THE MAIN REASON FOR SUMMARY JUDGMENT AND THE ORDER DISMISSING THE ENTIRE COURT ACTION.

 

Plaintiff wanted the jury to be the determiner of fact, not the bench and

 

contention is that the Court should have let this trial take place as scheduled.

 

There was sufficient genuine material facts for this case to go to trial. 

 

Springfield and the rest of the Defendants since severed from this suit should

 

be made to answer for their crimes against Plaintiff for aiding, abetting, and

 

promoting Plaintiff’s false arrest while peaceably handing out political fliers

 

to encourage Claire McCaskill to run for governor back in 2004.  Because of

 

Plaintiff’s unpaid efforts Claire McCaskill is now a U.S. Senator (even

 

helping the President select federal judges). All Defendants should have

 

known that it was unlawful to arrest and detain Plaintiff for political activity

 

at a political meeting.  And thus all appellants should be made to answer

 

for it before a jury, not upon summary judgment made in violation of the

 

genuine material facts which a judge grants them so they won’t have to

 

make trial.  Judge Hays failed to properly address motion Plaintiff’s Rule

 

59(e) Motion to Alter or Amend Judgment Benefiting Springfield.

 

C. A JURY MUST DECIDE IF CIVIL AND HUMAN RIGHTS VIOLATIONS OCCURRED.  COURT ALSO REFUSED TO ADDRESS THAT SPRINGFIELD POLICE LIED ON THE POLICE REPORT WHICH ITSELF IS A FELONY AND WHETHER CHOICE/CLARION HOTELS LIED ABOUT THE EMPLOYMENT OF MOHHAMAD SALEM.

 

A.  Page 477 US 242 “…(a) Summary judgment will not lie if the

dispute about a material fact is "genuine," that is, if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party. At the

summary judgment stage, the trial judge's function is not himself to weigh

the evidence and Page 477 U. S. 243 determine the truth of the matter, but to

determine whether there is a genuine issue for trial. There is no such issue

unless there is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party. In essence, the inquiry is whether the

evidence presents a sufficient disagreement to require submission to a jury,

or whether it is so one-sided that one party must prevail as a matter of law.

Pp. 477 U. S. 247-252.(b) A trial court ruling on a motion for summary

judgment in a case such as this must be guided by the New York Times

"clear and convincing" evidentiary standard in determining whether a

genuine issue of actual malice exists, that is, whether the evidence is such

that a reasonable jury might find that actual malice had been shown with

convincing clarity. Pp. 477 U. S. 252-256.…” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986)

          Page 477 U. S. 250 Cities Service, supra, at 391 U. S. 290, summary

judgment may be granted….Page 477 US 255 …Credibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge, whether he is ruling on a

motion for summary judgment or for a directed verdict. The evidence of the

non movant is to be believed, and all justifiable inferences are to be drawn

in his favor. Adickes, 398 U.S. at 398 U. S. 158-159. Neither do we suggest

that the trial courts should act other than with caution in granting summary

judgment, or that the trial court may not deny summary judgment in a case

where there is reason to believe that the better course would be to proceed

to a full trial. Kennedy v. Silas Mason Co., 334 U. S. 249 (1948)….”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

D.   PLAINTIFF WAS ENTITLED TO A JURY OF CITIZENS TO DECIDE IF THIS CASE WAS A CONTINUATION OF THE HABITUAL VIOLATIONS OF PLAINTIFF’S/APPELLANT’S CIVIL AND HUMAN RIGHTS AS A UNITED STATES CITIZEN

 

“…To state a claim for relief under section 1983, the Plaintiffs

 

must plead two essential elements: 1) that the Defendants acted under color

 

of state law; and 2) that the Defendants caused them to be deprived of a

 

right secured by the Constitution and laws of the United States. Howerton v.

 

Gabica, 708 F.2d 380, 382 (9th Cir. 1983)….Johnson v. Knowles  Appeal

 

from the United States District Court for the Eastern District of

 

California (1997) 07-15221 9th Circ (2008)   E.   Magistrate Hays refers to

 

City of Canton Ohio v. Harris 489 US378 (1989), however that case did not

 

overturn Oklahoma City v. Tuttle, 471 US 808 (1985) and said Magistrate

 

had an obligation to consider every known case before granting a motion for

 

summary judgment from any defendant, when the case before the court was

 

brought there by a non attorney, victim.  US Supreme Ct. has said any

 

official act can become policy AND the first incident of the policy is just as

 

important as repeated use of the policy w/additional acts.  Oklahoma City v.

 

Tuttle, 471 U.S. 808 (1985)

          In overruling Monroe v. Pape 365 US 167 the US Supreme Court

in Monell v. Dept. of Soc. Svs., 436 US 658 declared “…(a) Monroe v.

Pape departed from prior practice insofar as it completely immunized

municipalities from suit under § 1983. Moreover, since the reasoning of

Monroe does not allow a distinction to be drawn between municipalities and

school boards, this Court's many cases holding school boards liable in §

1983 actions are inconsistent with Monroe, especially as the principle of

that case was extended to suits for injunctive relief in City of Kenosha v.

Bruno, 412 U. S. 507. Pp. 436 U. S. 695-696.

(b) In addition, municipalities cannot have arranged their affairs on an

assumption that they can violate constitutional rights for an indefinite

period; accordingly, municipalities have no reliance interest that would

support an absolute immunity. Pp. 436 U. S. 699-700.

(d) Finally, it appears beyond doubt from the legislative history of the Civil

Rights Act of 1871 that Monroe misapprehended the meaning of the Act.

Were § 1983 unconstitutional as to local governments, it would have been

equally unconstitutional as to state or local officers, yet the 1871 Congress

clearly intended § 1983 to apply to such officers and all agreed that such

officers could constitutionally be subjected to liability under § 1983. The

Act also unquestionably was intended to provide a remedy, to be broadly

construed, against all forms of official violation of federally protected

rights. Therefore, without a clear statement in the legislative history, which

is not present, there is no justification for excluding municipalities from the

"persons" covered by § 1983. Pp 436 U. S. 700-701.

5. Local governments sued under § 1983 cannot be entitled to an absolute

immunity, lest today's decision "be drained of meaning," Scheuer v. Rhodes,

416 U. S. 232, 416 U. S. 248. P. 436 U. S. 701. …”  Monell pages 659, 660. 

E.  PLAINTIFF WAS ENTITLED TO HAVE A JURY DECIDE IF THE EVENT WAS AS ALWAYS ADVERTISED FOR 100 YEARS AS A PUBLIC EVENT

1.  The Court and Magistrate Judge Sarah W. Hays erred in dismissing

Defendants, granting summary judgment for Springfield, and dismissing this

 

case by disregarding the facts and plaintiff’s evidence.

 

2.  Magistrate Hays failed to meet the Vital v. Interfaith Medical  Center 168

 

F3d 615 (1999) standard for notice regarding the nature and consequences of

 

a Motion for Summary Judgment. 

 

            A. Vital v. Interfaith Medical Center 168 F3d 615 (1999) required

Magistrate Hays to give Appellant notice regarding the nature and

consequences of a Motion for Summary Judgment.  The Vital court wrote

“…We have previously acknowledged that it is not "obvious to a layman

that when his opponent files a motion for summary judgment supported by

affidavits he must file his own affidavits contradicting his opponent's if he

wants to preserve factual issues for trial." Graham v. Lewinski , 848 F.2d

342, 344 (2d Cir. 1988) (quoting Lewis v. Faulkner , 689 F.2d 100, 102 (7 th

Cir. 1982  In the absence of explicit notice from the District Court or an

opposing party, the nature of the papers submitted by the litigant and the

assertions made therein as well as the litigant's participation in proceedings

before the District Court may assist in determining whether the pro se

litigant had such an understanding. See id. In the record before us, there is

no indication that the District Court provided any notice of the nature and

consequences of a summary judgment motion. Nor did IMC's motion papers

provide Mr. Vital the requisite warning or explanation. Finally, we are

unable to infer awareness from Mr. Vital's own submissions and

participation…”

             B.  Instead of complying with Vital and similar case law, Magistrate

Hays chose to claim Appellant “failed to specifically controvert the

undisputed facts set forth in defendant’s motion. (See doc #119)  In fact,

plaintiff advises that he “does not really have the time, money, or stress

levels to come up with a point by point response.”  (Doc.#119 at 19) 

Magistrate Hays (Doc. #137 page 2).  In that same document she went on to

quote Local Rule 56.1(a), which she should have pointed out PRIOR to

holding pro se Appellant/Plaintiff accountable for it in regards to a Motion

for Summary Judgment, which neither she nor the movant had given him

notice of the nature and consequences thereof.   It should be obvious from

Appellant’s attempt to oppose the Motion for Summary Judgment he was

not aware of the nature and consequences of a Motion for Summary

Judgment.

3.   The District Court had before it evidence of a dispute; including

even some of the so called undisputed facts were and remain in dispute.

           A.   “…The right of freedom of speech and press includes not only

the right to utter or to print, but the right to distribute, the right to receive,

the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and

freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann

v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the

entire university community. Sweezy v. New Hampshire, 354 U. S. 234, 354

U. S. 249-250, 354 U. S. 261-263; Barenblatt v. United States, 360 U. S.

109, 360 U. S. 112; Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 369.  

In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the

"freedom to associate and privacy in one's associations," noting that

freedom of association was a peripheral First Amendment right.  Disclosure

of membership lists of a constitutionally valid association, we held, was

invalid "as entailing the likelihood of a substantial restraint upon the

exercise by petitioner's members of their right to freedom of association."

Ibid. In other words, the First Amendment has a penumbra where privacy is

protected from governmental intrusion. In like context, we have protected

forms of "association" that are not political in the customary sense, but

pertain to the social, legal, and economic benefit of the members. NAACP v.

Button, 371 U. S. 415, 371 U. S. 430-431.  Those cases involved more than

the "right of assembly" -- a right that extends to all, irrespective of their race

or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of "association,"

like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is

more than the right to attend a meeting; it includes the right to express one's

attitudes or philosophies by membership in a group or by affiliation with it

or by other lawful means. Association in that context is a form of expression

of opinion, and, while it is not expressly included in the First Amendment,

its existence is necessary in making the express guarantees fully

meaningful….Griswold v. Connecticut, 381 U.S. 479 (1965)

B.    Presence and location of an event was not the real issue.  A key

issue was on the day of his arrest, Reed was at Jackson Days at the Clarion

Hotel distributing literature in support of Claire McCaskill challenging Bob

Holden in the forthcoming Mo. Democratic Party Primary for Governor, a

matter of public and general interest. (The fact, Ms. McCaskill did challenge

Mr. Holden and actually won the primary should make it obvious

Appellant’s distribution of literature was a matter of public and general

interest.)  Because the subject matter of the distribution was a matter of

public and general interest, Reed was protected by the First Amendment to

the US Constitution.   “ …If a matter is a subject of public or general

interest, it cannot suddenly become less so merely because a private

individual is involved, …. The public's primary interest is in the event; the

public focus is on the conduct of the participant and the content, effect, and

significance of the conduct, not the participant's prior anonymity or

notoriety. [Footnote 11]…We honor the commitment to robust debate on

public issues, which is embodied in the First Amendment, by extending

constitutional protection to all discussion and communication involving

matters of public or general concern, without regard to whether the persons

involved are famous or anonymous. [Footnote 12] Rosenbloom v

Metromedia, 403 U.S. 29 (1971) at pgs 43, 44. 

           C.  “…The central aim of the Civil Rights Act was to provide

protection to those persons wronged by the "[m]isuse of power, possessed

by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.'" Monroe v. Pape, 365 U.S. at 365 U.

S. 184 (quoting United States v. Classic, 313 U. S. 299, 313 U. S. 326

(1941)). By creating an express federal remedy, Congress sought to 

"enforce provisions of the Fourteenth Amendment against those who carry a

badge of authority of a State and represent it in some capacity, whether they

act in accordance with their authority or misuse it."  Monroe v. Pape, supra

at 365 U. S. 172. How "uniquely amiss" it would be, therefore, if the

government itself -- "the social organ to which all in our society look for the

promotion of liberty, justice, fair and equal treatment, and the setting of

worthy norms and goals for social conduct"-- were permitted to disavow

liability for the injury it has begotten. See Adickes v. Kress & Co., 398 U. S.

144, 398 U. S. 190 (1970) (opinion of BRENNAN, J.). A damages remedy

against the offending party is a vital component of any scheme for

vindicating cherished constitutional guarantees, and the importance of

assuring its efficacy is only accentuated when the wrongdoer is the

institution that has been established to protect the very rights it has

transgressed. Yet owing to the qualified immunity enjoyed by most

government officials, see Scheuer v. Rhodes, 416 U. S. 232 (1974),

many victims of municipal malfeasance would be left remediless if the city

were also allowed to assert a good faith defense. Unless countervailing

considerations counsel otherwise, the injustice of such a result should not be

tolerated. [Footnote 33]Moreover, § 1983 was intended not only to provide

compensation to the victims of past abuses, but to serve as a deterrent

against future constitutional deprivations, as well. See Robertson v.

Wegmann, 436 U. S. 584, 436 U. S. 590-591 (1978); Carey v. Piphus, 435

U. S. 247, 435 U. S. 256-257 (1978). The knowledge that a municipality

will be liable for all of its injurious conduct, whether committed in good

faith or not, should create an incentive for officials who may harbor doubts

about the lawfulness of their intended actions to err on the side of protecting

citizens' constitutional rights. [Footnote 34] Furthermore, the threat that

damages might be levied against the city may encourage those in a

policymaking position to institute internal rules and programs designed to

minimize the likelihood of unintentional infringements on constitutional

right. 

D.  “…The function of the district court in considering the motion for

summary judgment is not to resolve disputed issues of fact but only to

determine whether there is a genuine issue to be tried. Assessments of

credibility and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment. Any weighing

of the evidence is the prerogative of the finder of fact, not an exercise for

the court on summary judgment. Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d

Cir. 1996) (citations omitted); see also Rodriguez v. City of New York , 72

F.3d 1051, 1061, 1063-64 (2d Cir. 1995); United States v. Rem , 38 F.3d

634, 644 (2d Cir. 1994)….” Vital v. Interfaith Medical 168 F3d 615 (1999)

E.   The dispute as to whether Appellant’s rights were violated

should have been presented to a jury versus the Magistrate allowing herself

to accept defendant’s misstatement of facts and bully tactics to further

violate Appellant’s rights.  F.  Appellant never meant to agree that he was

merely “involved” with the Draft Claire campaign since in 2003 he started

the “Draft Claire" campaign aimed at enlisting Claire McCaskill to challenge

her party's sitting governor, Bob Holden. (Defendant's Fact #3)Columbia

Daily Tribune the truth (EXHIBIT) included Appellant Reed made statewide

news by starting the Draft McCaskill Committee. This was an apparent

attempt by Springfield, Court, and Magistrate Judge Sarah Hays to discredit

Reed and to try and drive him to the edge of insanity.  Snares and lies were

apparently used to again place Appellant in such a state of mind he would

dismiss case that he should have never had the nerve to file.  G.  The dispute

over private or public event should have been presented to a jury.  Jackson

Days has always been a public event attended by people of all walks of life

from Harry Truman to John Kennedy to Appellant to people from the streets.

H.  Appellant had no idea whether Mohammed Salam was acting as

an agent of Clarion Hotel or not when he informed Appellant the

organizers of the event wanted him to leave.   (Defendant’s Fact #8) nor

when he again approached Appellant Reed and asked him to leave

(Defendant’s Fact #14)  nor when he called the Springfield, MO Police

Department (Defendant‘s Fact #16), nor when he signed the trespassing

summons.   (Defendant’s Fact #20).   In relying on those stated facts from

Defendant City of Springfield, MO as “Undisputed Facts”  (pages 3 and

4 Magistrate Hays final order in the case, Document #137) Magistrate Hays

has made statements contrary to Clarion Hotels defenses as well as

Mohammed Salam’s evasion of service.  Defendant Choice Hotels has

claimed that they have nothing to do with the Clarion Hotel but in the Order

dated April 12. 2006 United States Magistrate Judge Sarah W. Hays points

out that Choice Hotels claims no connections yet they filed legal motions in

defense of the Clarion Hotel after the Clarion Hotel Manager was served the

Civil Suit. 

 

In its answer, Choice Hotels denied it owns, operates, controls or has the right to operate or control the premises known as the Clarion Hotel on Glenstone Avenue in Springfield.  (See Doc. #2 #4…Choice Hotel’s pleadings fail to set forth its relationship with the Clarion Hotel in Springfield.  In seeking the dismissal of this action, Choice Hotels did not put forth any affidavits or exhibits which would have allowed the Court to conclude that the defendant Choice Hotels was merely a franchisor, and thus, an improper party defendant.  Further, the action of Choice Hotels, in responding to service of process of the Complaint on the general manager of the Clarion Hotel, by responding to service of process of the Complainant on the general manager of the Clarion Hotel, by restating both its answer and motion to dismiss, suggest some relationship exists between these entities.”

 

Another issue in dispute was whether Mohammed Salam was acting on

authority from Clarion Hotel and who gave him authority to file a criminal

charge against someone.    Was he even a citizen of the USA?  

I.   Appellant certainly objected to Defendant Springfield claiming it

was undisputed that Officer Campbell was shorter than he was (as pointed

out elsewhere that was absurd and irrelevant especially since numerous other

officers were called in as backup on the arrest).  (Defendant’s Fact #18

relied on as Undisputed Material Fact by the Magistrate in Document 137).

J.   Appellant never knowingly agreed that Officer Campbell did not

use excessive force when handcuffing him.  The Springfield lawyer was a

nice smooth talker who got Reed to say things under duress.  (Defendant’s

Fact #19 relied on as Undisputed Material Fact by Magistrate Hays in

Document 137)   He had marks on him and holding him handcuffed in the

police car for hours was indeed excessive.   Again another issue that a jury

should have decided versus the Magistrate merely listening to a defendant.

K.  Defendant’s Fact #24 relied on as an Undisputed Material Fact

by Magistrate Hays in Document 137 “Plaintiff, with no influence from

defendant, hired attorney Robert Childress to defend him on the trespassing

charge.” is a misstatement to say the least.   Plaintiff hired attorney

Childress To plead himself NOT GUILTY and certainly believes the City of

Springfield did influence attorney Childress to instead plead him GUILTY

against his will and that the City made sure he was denied due process, was

found guilty and that they thought they had closed the door on his being in a

position to prove their violations of his rights when he was arrested for

merely passing  out political literature at a public place as people entered for

a public event.   A matter for a jury to decide whether the Springfield

interfered with Appellant’s due process rights and overly influenced his

hired legal counsel to protect themselves.  The  Court and Magistrate Judge

Hays erred by not addressing the efforts made by Appellant to address the

effort to take back Guilty Plea made by an attorney not REED HIMSELF:

These statements were included in the motion titled:

PLAINTIFF’S REQUEST FOR COURT TO DELAY TRAIL UNTIL

FIRST

OF 2009 TO ALLOW PLAINTIFF TIME TO ATTAIN CIVIL RIGHTS

LAWYER:  Please see APPELLANT EXHIBITS:

 

          The following letter has been mailed to Missouri Corrections:

October 7, 2008 Chairman Steve Long and letter two to Missouri Advisory Committee:

 

Plaintiff Reed also includes a letter from the Missouri Probation and

 

Parole Board hearing on Clemency.  A meeting was held and the results

 

were supposed to be passed onto the Governor of Missouri Matt Blunt. 

 

Chairman Steve Long of the State of Missouri Department of Corrections

 

Board of Probation and Parole turned around two months later and said he

 

was closing the case because it concerned a municipal situation. 

 

Appellant has said all along that a meeting of the minds including

 

the sitting Governor were involved in the action along with the Springfield

 

Police to arrest Steven Reed.  Plaintiff Reed asked the Department of

 

Justice and the FBI  to investigate the Board of Probation and Parole for not

 

doing what Amanda Moore said would happen which was to send it on to

 

the Governor.

 

4.  Magistrate Hays should not have previously dismissed seven

defendants from the case.

          A.   “…When a federal court reviews the sufficiency of a complaint,

before the reception of any evidence either by affidavit or admissions, its

task is necessarily a limited one. The issue is not whether a plaintiff will

ultimately prevail, but whether the claimant is entitled to offer evidence to

support the claims. Indeed, it may appear on the face of the pleadings that a

recovery is very remote and unlikely, but that is not the test. Moreover, it is

well established that, in passing on a motion to dismiss, whether on the

ground of lack of jurisdiction over the subject matter or for failure to state a

cause of action, the allegations of the complaint should be construed

favorably to the pleader. "In appraising the sufficiency of the complaint we

follow, of course, the accepted rule that a complaint should not be dismissed

for failure to state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to

relief." Conley v. Gibson, 355 U. S. 41, 355 U. S. 45-46 (157) (footnote

omitted). Page 416 U. S. 237 See also Gardner v. Toilet Goods Assn., 387

U. S. 167, 387 U. S. 172 (1967)….”

 B.  “A law which punished conduct which would not be blameworthy to

the average member of the community, would be too severe for the

community to bear.” Lambert v. People of the State of California, 355

US 230; 78 Sup. Ct. 240, quoting Holems, 4 Bl.Comm. 21, The Common

Law.   Certainly arresting people for passing out political literature

regarding a potential candidate for office for the Mo. Democratic Party at a

public function of the party gives an appearance of punishing conduct that

would not be blameworthy to the average member of the community of

Greene County, Springfield, nor State of Missouri

C.  Private persons can be held accountable for civil rights violations-

“…Held: The action against the private parties accused of conspiring with

the judge is not subject to dismissal. Private persons, jointly engaged with

state officials in a challenged action, are acting "under color" of law for

purposes of § 1983 actions. And the judge's immunity from damages

liability for an official act that was allegedly the product of a corrupt

conspiracy involving bribery of the judge does not change the character of

his action or that of his coconspirators. Historically at common law, judicial

immunity does not insulate from damages liability those private persons

who corruptly conspire with a judge. Nor has the doctrine of judicial

immunity been considered historically as excusing a judge from responding

as a witness when his coconspirators are sued, even though a charge of

conspiracy and judicial corruption will be aired and decided. Gravel v.

United States, 408 U. S. 606, distinguished. The potential harm to the public

from denying immunity to coconspirators if the fact finder mistakenly

upholds a charge of a corrupt conspiracy is outweighed by the benefits of

providing a remedy against those private persons who participate in

subverting the judicial process and, in so doing, inflict injury on other

persons. Pp. 449 U. S. 27-32.…” Dennis v Sparks 449 US 24 at pgs 24, 25.

 D.  “…In appraising the sufficiency of the complaint, we follow the

accepted rule that a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of

facts to support the claim. Rules do not require a claimant to set out in detail

the facts upon which he bases his claim…only a short and plain statement of

the claim. So long as gives defendant fair notice of what the claim is and

grounds upon it rests. FRCP 8(f) All pleading shall be so construed as to do

substantial justice….Following the simple guide of Rule 8(f) that "all

pleadings shall be so construed as to do substantial justice," we have no

doubt that petitioners' complaint adequately set forth a claim and gave the

respondents fair notice of its basis. The Federal Rules reject the approach

that pleading is a game of skill in which one misstep by counsel may be

decisive to the outcome, and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli

Chemical Co., 303 U. S. 197.…” Conley v. Gibson, 355 U.S. 41 (1957)

E.   Dioguardi v. Durning, 139 F.2d 774 (1944).  Facts: Dioguardi (P)

imported “bottles and tonics” from Italy and claimed that Durning (D),

Collector of Customs at the Port of New York, improperly sold them at

auction. P, representing himself pro se, brought an action for conversion

against D. P drafted his own defective complaint and D filed a motion to

dismiss for failure to state a cause of action.  Procedural History: The district

court granted Defendant’s motion to dismiss for failure to state a claim and

dismissed the claim with leave for P to amend his complaint. The Defendant

moved for dismissal of the amended complaint on the same grounds and the

district court again granted the motion.  Holding and Rule: A Plaintiff does

not have to give all the details, evidence in the complaint. The Federal Rules

of Civil Procedure have adopted the notice pleading standard. In order to

withstand summary judgment, the complaint need only put the court and

defendant on notice of the cause of action. The complaint need only present

a short and plain statement of the claim demonstrating that the pleader is

entitled to relief.  With the exception for claims addressed in Rule 9 (i.e.

claims alleging fraud, mistake, or special damages), the federal courts

require that complaints include merely a statement of subject matter

jurisdiction, a short and plain statement of the claim, and a demand for

judgment.

F.  ”…The district court styled its action as a dismissal under Fed.R.Civ.P.

12(b)(6). In reviewing such a dismissal, we may not go outside the

pleadings. We accept all well-pleaded facts as true and view them in the

light most favorable to the plaintiff.10 We cannot uphold the dismissal "

unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief".11...” Partridge v.

Two Unknown Police Officers ,  791 F.2d 1182, 5th Circuit 1986
         
        G.   Mohammed Salam could not be both an agent of the Clarion Hotel 

(Defendant’s Facts #8 and #16 Magistrate Hays Document 137, pages 3,4) 

and not employed by nor affiliated with the Clarion Hotel.  The Defendants

should not be permitted to have it both ways.  Mohammed Salam and the

Clarion Hotel were key role players in this case and obviously Magistrate

Hays should not have removed them from the case then later claiming it was

undisputed that Salam was an agent of Clarion Hotel.   Only a jury should

decide what role Mohammed Salam and the Clarion Hotel played in

violations of Appellant Reed’s rights.

H. See also SWIERKIEWICZ v. SOREMA N. A. 534 U.S. 506 (2002) 

 

Appellant should not have been held to a higher standard that required to

 

give notice of the issues to the defendants.

 

I.  In the least, Magistrate Hays should have granted any Motion to

Dismiss only by permitting and inviting Appellant to cure any defects in the

Petition and giving him leave to amend.

5.  Magistrate Hays erred in refusing to permit Appellant to amend his

original pleading and thereby cure some of the defaults defendants and

the Magistrate used against him.  Magistrate Hays also failed to recognize

the fact some of the defendants, she freely granted Motion to Dismiss and

refused to accept amending of the complaint, did not make a proper

response/answer to the lawsuit.

A.            “….Rule 15(a) of the Fed.R.Civ.P. provides that: "[a] party

 

may amend his pleadings once as a matter of course at any time before a

 

responsive pleading is served...." All that defendant King filed was his

 

motion to dismiss the complaint for failure to state a cause of action. Such a

 

motion to dismiss is not a "responsive pleading." McGruder v. Phelps, 608

 

F.2d 1023, 1025 (5th Cir.1979). Therefore, Barksdale's right to amend his

 

complaint as a matter of course remained unimpeded.

 

A codefendant did file an answer, which constituted a responsive pleading.

 

The rule is, however, that "[w]here some but not all defendants have

 

answered, plaintiff may amend as of course claims asserted solely against

 

the non-answering defendants, ..." 3 Moore's Federal Practice p 15.07 at 15-

 

53 (2d ed. 1982). "[I]f the amendment affects all defendants or one or more

 

of those that have not responded, then it is generally held that a 'responsive

 

pleading' has not been served for purposes of Rule 15(a) and plaintiff may

 

amend his complaint as of course with regard to those defendants that have

 

not answered." 6 C. Wright & A. Miller, Federal Practice and Procedure

 

Sec. 1481 (1971)….”  Barksdale v. King (United States Court of Appeals, Fifth Circuit 1983  699 F.2d 744)

 

      B.   Rule 15(a) of the Federal Rules of Civil Procedure provides

 

that “leave [to amend a complaint] shall be freely given when justice so

 

requires.” The Supreme Court has interpreted Rule 15(a) to mean that leave

 

to amend pleadings should be given freely in the absence of any apparent or

 

declared reason, such as undue delay, bad faith, or dilatory motive on the

 

movant’s part, repeated failure to cure deficiencies by previous amendment,

 

undue prejudice, or futility of amendment. Foman v. Davis, 371 U.S. 178,

 

182 (1962).

 

6.  The Magistrate, FBI, etc. failed to address continuing and most

disturbing problems including the 911 call and heresay, false and

misleading public servants. 

          A.  Coercion was used to attempt to get Appellant to drop

the case.  Appellant notified the court and was ignored. 

               APPELLANT herby includes in this Appellant Brief an EXHIBIT

 

of  a “Dismissal Offer” which was admitted in the circuit court as an exhibit.

 

The Magistrate Judge and the Federal Court did not answer the issue

 

of whether it was legal for Springfield to set up a “Dismissal Offer” with a

 

private Attorney who represents another party to the case.

 

PLAINTIFF’S REQUEST FOR A COURT ORDER FOR CITY TO CLARRIFY THEIR LEGAL STANDING AND FOR TO RE-ADD STEVEN STEPP AS DEFENDANT

The Court erred by not addressing the issue of collusion

 

between attorneys and government attorneys.  This was discussed on page

 

97 to 100 of Deposition  of March 19, 2008 which was allowed to be

 

entered to the Court even though the copy for review was received by

 

Appellant after the deadline for review. 

 

          That meeting had been set up by a Ron Davis and a Ms. Hanamaker

 

as agreement that they would help with a Draft Kreider for US Congress

 

effort only if Appellant dropped this Civil Case.  Reed in deposition told

 

City Attorney Thomas E. Rykowski that Craig Hosmer tried to get him to

 

Sign an agreement to drop the whole case and that when I realized that it

 

was a “STIPULATION FOR DISMISSAL” or a motion to drop everyone

 

the whole case.  Reed told Hosmer “NO” that is not what he agreed to.

 

Craig said it was a mistake and that he would have his secretary retype the

 

front page.  In the Deposition Appellant said that Craig Hosmer said he had

 

just talked to the City Attorney’s and that they said that if Reed did not drop

 

it right away they would be going after Substantial Attorney Fees. 

 

          Appellant Reed hereby includes as evidence: STIPULATION FOR

 

DISMISSAL signed by Carl S. Yendes City of Springfield, Daniel R.

 

Wichmer City of Springfield, and William Craig Hosmer.

 

            1.  “He who comes into equity must come with clean hands.

 

P. 290 U. S. 244.…"It is one of the fundamental principles upon which

 

equity jurisprudence is founded that, before a complainant can have a

 

standing in court, he must first show that not only has he a good and

 

meritorious cause of action, but he must come into court with clean hands.

 

He must be frank and fair with the court, nothing about the case under

 

consideration should be guarded, but everything that tends to a full and fair

 

determination of the matters in controversy should be placed before the

 

court. "Story's Equity Jurisprudence, 14th ed., § 98. The governing principle

 

is "that Page 290 U. S. 245whenever a party who, as actor, seeks to set the

 

judicial machinery in motion and obtain some remedy has violated

 

conscience or good faith or other equitable principle in his prior conduct,

 

then the doors of the court will be shut against him in limine; the court will

 

refuse to interfere on his behalf, to acknowledge his right, or to award him

 

any remedy. "Pomeroy, Equity Jurisprudence, 4th ed., § 397. This Court has

 

declared:" It is a principle in chancery that he who asks relief must have

 

acted in good faith. The equitable powers of this Court can never be

 

exerted in behalf of one who has acted fraudulently, or who by deceit or

 

any unfair means has gained an advantage. To aid a party in such a case

 

would make this Court the a better of iniquity." 47 U. S. 247. And

 

again:" A court of equity acts only when and as conscience commands, and,

 

if the conduct of the plaintiff be offensive to the dictates of natural justice,

 

then, whatever may be the rights he possesses and whatever use he may

 

make of them in a court of law, he will be held remediless in a court of

 

equity." Deweese v. Reinhard, 165 U. S. 386, 165 U. S. 390.…

 

Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)

 

          2.  “We may assume that, because of the clean hands doctrine, a

 

federal court should not, in an ordinary case, lend its judicial power to a

 

plaintiff who seeks to invoke that power for the purpose of consummating a

 

transaction in clear violation of law. [Footnote 4] [Footnote 5] The maxim

 

that he who comes into equity must come with clean hands is not applied by

 

way of punishment for an unclean litigant, but "upon considerations that

 

make for the advancement of right and justice." Keystone Driller Co. v.

 

General Excavator Co., 290 U. S. 240, 290 U. S. 245. It is not a rigid

 

formula which "trammels the free and just exercise of discretion."

 

Ibid., 290 U. S. 245-246.…The ultimate question in this part of the case is

 

whether the carrier, whose complete good faith is in no way questioned,

 

should have the court's doors shut to it. So to hold would be to say that the

 

state officials, who, so far as this record shows, had no search warrant or

 

judicial process of any kind….

 

      3.  Defendants also must come before the court with clean hands. 

 

Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc., 792 F. Supp. 969,

 

970 (S.D.N.Y.), aff'd by summary order, 983 F.2d 1048 (2d Cir. 1992)

 

(defendant's unclean hands barred laches defense in trademark dispute

 

where defendant's president fabricated testimony to create impression that

 

he detrimentally relied on plaintiff's acquiescence). "The relative extent of

 

each party's wrong upon the other and upon the public should be taken into

 

account, and an equitable balance struck." Republic Molding Corp. v.

 

B.W. Photo Utilities, 319 F.2d 347, 350 (9th Cir. 1963).   See United Cities,

 

995. F. Supp. at 1284 (unclean hands is “not actually a defense, but a

 

concept designed to protect the court from becoming a party to the

 

transgressor’s misconduct”).

 

4.   Springfield lied on the police report leaving out the fact Reed was

 

held in police car, handcuffed for lengthy period of time and four police cars

 

at the scene made it appear a terrorist or major felon had been captured.  

 

The fact, officers kept telling him he was going to jail while he was held also

 

was not revealed.

 

5.       Appellee Springfield participated in an attempt to coerce

 

Appellant into dismissing the entire case through a stipulation document that

 

said things other than he had been told.

 

          6.  Appellee Springfield refused to identify who the other officers

 

participating in the incident were and permit them to be served the lawsuit.

 

         7.   Choice Hotels, Choice Hotels International, Clarion Hotel and it is

 

believed Springfield as well used deception regarding Clarion Hotel’s

 

relationship both with Choice Hotels/Choice Hotels International and

 

Mohammed Salam.  

 

 8.   The Court erred in refusing to grant a continuance for Appellant

 

to submit to a deposition and interrogatories by Springfield, MO thereby

 

requiring him to be at the mercy of the City’s attorney without legal counsel

 

himself and while under extreme duress.

 

A.   Due to the pattern of violations of his rights by the City of

 

Springfield, MO, Appellant feared arrest and possibly worse by submission

 

to depositions and interrogatories without the benefit of legal counsel.  (See

 

list of pattern of other arrests, etc. in point 7C below.)

 

           B.   City of Springfield, MO also used deception and sent a

notice claiming the deposition would be a month later than they later

intended to proclaim and enforce through a less than 24 hour notice from

the Magistrate.   Obviously Appellant Reed was not properly prepared and

was more than stressed over being told to submit to the deposition on such

short notice after the City had said it would be a month later.

           C. Having failed to obtain a continuance, Appellant repeatedly

objected to the questioning and the short notice.

D.     Magistrate Hays gave Appellee Springfield a very unfair

advantage over Appellant and claimed what the City claimed were

undisputed facts were set in concrete as a result of that unfair deposition.

      9.   The Court should not have ignored the fact there is at least a

13 year and continuing pattern to defendant City of Springfield, MO  and

its Police Department having violated the rights of citizens, including

Appellant Reed civil and constitutional rights and to openly participate in

free and fair elections, which includes more than mere voting on election

day.

        A.   Appellant/plaintiff Reed was seized by City of Springfield, MO

police officers, roughly handcuffed and detained in a police car for over

fours hours in front of Clarion Hotel while the public was coming and going

to a public event of the Democratic Party, April 5, 2003.    Said seizure was

in violation in the least of his rights under the US Constitution,

Amendments, 1, 4, and 14.

         B.   See Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis

29520 (2nd Cir.) and Saenz v. Lucas, 07 Civ. 10534, 2008 U.S. Dist. Lexis

69571 (S.D.N.Y.) as noted in point 10 below, emphasizing from Giles 

a motorist stopped and detained by a police detective raised a genuine issue

of fact as to whether the initial seizure of herself and her vehicle had been

improperly extended for over two hours after there was no longer any

reasonable suspicion of any criminal activity. She claimed that she remained

handcuffed at the scene for a prolonged period of time and was then

directed to go with officers to police headquarters. Overturning summary

judgment for the detective, the appeals court ruled that the plaintiff alleged

facts from which a reasonable jury or other fact finder could find that her

continued detention violated the Fourth Amendment.

         Further consideration of this case was also necessary in that as in the

Saenz case other officers were called to the scene.   Appellee Springfield,

MO and the Magistrate’s reliance on proclaiming the initial officer at the

scene was shorter than Appellant was more than absurd; it became irrelevant

since other police officers were involved.   See Saenz – Officers and a town

were not entitled to dismissal of a woman's claim that she was unlawfully

detained. While it could be argued that any reasonable person would have

felt free to leave when she was being questioned by one of the defendant

officers, the court stated, the arrival of three officers changed the

circumstances enough to possibly constitute an unlawful seizure or improper

interrogation, requiring further proceedings. The court rejected the argument

that the plaintiff had clearly already been seized by the one officer before the

others arrived, and that they therefore could not be liable for her seizure.

      C.   All these following issues were pointed out in several motions

and exhibits in the circuit court.  The Magistrate Judge failed to address

the pattern at all; which was an error since this shows the City TREATED

Appellant Reed different than someone whom the Police had no prior

contact with.
 
                 1.   Appellant Reed was Arrested on Election Day in 1996 for

handing out Minimum Wage Pamphlets  2.  Doing Volunteer Voter

Registration when US Senator---Vice President Candidate Joseph Lieberman

was at Missouri State University.    3.  Handing out “Draft Claire”

flyers at Jackson Days in 2003.   4.  While this case was pending Appellant

Reed was Ticketed in 2008 for Parking in his own driveway.  5. All the

Arrests were by City of Springfield, MO Police Officers.  6. It should be

noted  none of the arrests were for crimes of violence nor does Appellant

have a history of arrests in other cities, towns, villages, states.   7.  Also

Springfield denied Reed the right to run as a write in candidate for Mayor,

contrary to Missouri law and that case went to the Missouri Supreme Court.

8. Springfield, MO refused to accept Petitions from Appellant regarding

placing Technology Park issue on the ballot.   9.  Appellant Reed brought up

a number of times in Motions in this case, that the City had Arrested Reed 

for essentially political activities.  10.   City of Springfield, MO has even

succeeded in using the Federal Government to discredit Appellant Reed

currently.   From City Council minutes:

        Steven Reed, 1446 E. Estate, THE CITY SAID IN MINUTES he spoke

in support of the proposed. He expressed his belief that the Stimulus funds

would benefit the community greatly by helping to create more jobs and

provide funds for the City to implement items that may have not been

viable previously due to budget cuts.  The facts are that Appellant Reed read

the names and comments from 15 State Representatives who support the

possible development of Technology Parks to create jobs including

Springfield.

        11.    And the City of Springfield, MO in conspiracy with other

defendants in this case have succeeded in using the Federal District Court

and Magistrate Hays in furtherance of their pattern of denying Appellant

Reed his rights under the US Constitution and other federal and state laws. 

               12.  Civil Applications  Title 42, U.S.C., Section 14141 makes it

unlawful for state or local law enforcement agencies to allow officers to

engage in a pattern or practice of conduct that deprives persons of rights

protected by the Constitution or U.S. laws. This law, commonly referred to

as the Police Misconduct Statute, gives the Department of Justice authority

to seek civil remedies in cases where law enforcement agencies have

policies or practices that foster a pattern of misconduct by employees. This

action is directed against an agency, not against individual officers. The

types of issues which may initiate a pattern and practice investigation

include:

Lack of supervision/monitoring of officers' actions;

Lack of justification or reporting by officers on incidents involving the

use of force; Lack of, or improper training of, officers; and Citizen

complaint processes that treat complainants as adversaries.

      13.  Abuse of discretion by Magistrate Hays to refuse to accept

supplemental jurisdiction over what she declared were state claims she

knew or should have known were at the time of her granting Summary

Judgment to Springfield and ultimately closing the case time barred for

filing in state courts. 

A.  The court’s decision was wholly contrary to the facts in that the

so called state claims belonged in federal court for a fair and complete

review by a jury.    

 1.  The Magistrate knew or should have known Appellant was

going to be beyond the statute of limitations for filing state claims.  In

continuing to aid the defendants in getting by with having violated

Appellant’s rights the Magistrate certainly did not provide any warnings

regarding his being time barred from pursuit of state claims

2.   Page 471 U. S. 267 law or policy to do so. [Footnote 12] In 42 U.S.C. §

1988, Congress has implicitly endorsed this approach with respect to claims

enforceable under the Reconstruction Civil Rights Acts.

The language of § 1988 [Footnote 13] directs the courts to follow "a three-

step process" in determining the rules of decision applicable to civil rights

 

claims: "First, courts are to look to the laws of the United States 'so far as

 

such laws are suitable to carry [the civil and criminal civil rights statutes]

 

into effect.' [42 U.S.C. § 1988.] If no suitable federal rule exists, courts

 

undertake the second step by considering application of state 'common law,

 

as modified and changed by the constitution and statutes' of the forum state.

 

Ibid. A third step asserts the predominance of the federal interest: courts are

 

to apply state law only if it is not 'inconsistent with the Constitution and

 

laws of the United States.' Ibid."  Burnett v. Grattan, 468 U. S. 42, 468 U. S. 47-48 (1984)….Page 471 U. S. 278  Relying on the language of

 

the statute, the Court of Appeals for the Fourth Circuit has succinctly

 

explained why this analogy is persuasive:"In essence, § 1983 creates a cause

 

of action where there has been injury, under color of state law, to the person

 

or to the constitutional or federal statutory rights which emanate from or are

 

guaranteed to the person. In the broad sense, every cause of action under §

 

1983 which is well-founded results from 'personal injuries.'"Almond v. Kent,

 

459 F.2d 200, 204 (1972). The rights enforceable under § 1983 include those

 

guaranteed by the Federal Government in the Fourteenth Amendment: that

 

every person within the United States is entitled to equal protection of the

 

laws and to those "fundamental principles of liberty and justice" that are

 

contained in the Bill of Rights and "lie at the base of all our civil and

 

political institutions." [Footnote 39] These guarantees of Page 471 U. S. 279

 

liberty are among the rights possessed by every individual in a civilized

 

society, and not privileges extended to the people by the legislature.

 

Footnote 40]  Finally, we are satisfied that Congress would not have

 

characterized § 1983 as providing a cause of action analogous to state

 

remedies for wrongs committed by public officials. It was the very

 

ineffectiveness of state remedies that led Congress to enact

 

the Civil Rights Acts in the first place. [Footnote 41][Footnote 12]See, e.g.,

 

Runyon v. McCrary, 427 U. S. 160, 427 U. S. 180-182 (1976); Auto Workers

 

v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 704 (1966);

 

Chattanooga Foundry & Pipe Works v. Atlanta,

 

203 U. S. 390, 203 U. S. 397-398 (1906);  McClaine v. Rankin,

 

197 U. S. 154, 197 U. S. 158 (1905); Campbell v. Haverhill, 155 U. S. 610,

 

155 U. S. 617 (1895).  [Footnote 40]"It is a fundamental principle of law

 

that, while the citizen owes allegiance to the Government, he has a right to

 

expect and demand protection for life, person, and property. But we are not

 

compelled to rest upon this inherent and undeniable right to protect our

 

citizens. The Constitution of the United States contains an express grant of

 

power, coupled with an imperative injunction for its exercise."  Cong.Globe,

 

42d Cong., 1st Sess., 322 (1871) (Rep. Stoughton). See also id. at 339 (Rep.

 

Kelley); 367-368 (Rep. Sheldon); 382 (Rep. Hawley); 475-476 (Rep.

 

Dawes); 482 (Rep. Wilson); 691 (Sen. Edmunds).  [Footnote 41]See supra at

 

471 U. S. 276-277. Also see the legislative history related in Patsy v. Board

 

of Regents, 457 U. S. 496, 457 U. S. 503-505 (1982); Mitchum v. Foster,

 

407 U. S. 225, 407 U. S. 240-242 (1972); McNeese v. Board of Education,

 

373 U. S. 668, 373 U. S. 671-672 (1963); Monroe v.Pape,

 

365 U. S. 167, 365 U. S. 172-180 (1961); id. at 365 U. S. 196, and n. 5

 

(Harlan, J., concurring).  Wilson v. Garcia 471 US 261 (1985)

 

B.    Abuse of discretion when a court does not apply the correct

law or if it rests its decision on a clearly erroneous finding of a material fact.

U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also

abuse its discretion when the record contains no evidence to support its

decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91).

     9.  Abuse of discretion and contrary to federal law for Magistrate Hays to

deny Appellant’s Request for a Federal Grand Jury to look into possible

crimes concerning civil rights violations.

A.   When a person is presented any evidence that crimes have been

committed they have a duty to see that the proper law enforcement are

notified.   If they do not that may become part of the conspiracy or

considered to be aiding and abetting in the crime(s).  18 USC 18 § 4.

Misprision of felony  Whoever, having knowledge of the actual commission

of a felony cognizable by a court of the United States, conceals and does not

as soon as possible make known the same to some judge or other person in

civil or military authority under the United States, shall be fined under this

title or imprisoned not more than three years, or both.

B.  Special grand juries exist for review of public corruption and

 

judges can ask for investigation of alleged offenses.  18 USC 3332 (bold

 

added for emphasis) “(a) It shall be the duty of each such grand jury

 

impaneled within any judicial district to inquire into offenses against

 

the criminal laws of the United States alleged to have been committed

 

within that district.  Such alleged offenses may be brought to the

 

attention of the grand jury by the court or by any attorney appearing on

 

behalf of the United States for the presentation of evidence.

Any such attorney receiving information concerning such an alleged offense

 

from any other person shall, if requested by such other person, inform the

 

grand jury of such alleged offense, the identity of such other person, and

 

such attorney's action or recommendation. (b) Whenever the district court

 

determines that the volume of business of the special grand jury exceeds the

 

capacity of the grand jury to discharge its obligations, the district court may

 

order an additional special grand jury for that district to be impaneled….”

    10.  Abuse of discretion for Magistrate Hays to declare the case frivolous.

 

A.   Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

 

(2d Cir. 1998) (quoting Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir.

 

1990)).  “An action is “frivolous” when either: (1) “the ‘factual contentions

 

are clearly baseless,’ such as when allegations are the product of delusion or

 

fantasy;” or (2) “the claim is ‘based on an indisputably meritless legal

 

theory.’” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

 

(quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104

 

L. Ed. 2d 338 (1989)). A claim is based on an “indisputably meritless legal

 

theory” when either the claim lacks an arguable basis in law, Benitez v.

 

Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam), or a dispositive

 

defense clearly exists on the face of the complaint. See Pino v. Ryan, 49

 

F.3d 51, 53 (2d Cir. 1995). Livingston, 141 F.3d at 437. The court exercises

 

caution in dismissing a case under section 1915(e)3 because a claim that the

 

court perceives as likely to be unsuccessful is not necessarily frivolous. See

 

Neitzke v. Williams, 490 U.S. 319, 329 (1989).”

 

          B.  Magistrate Hays acts as though Appellant would have had to of

missed work and/or been jailed in order to have a valid claim.    Appellant

was held, as if a dangerous criminal, handcuffed in a police car for over four

hours, in full public view; pled guilty contrary to his will and his

instructions to legal counsel and watched on probation for an extended

period of time.   

1.  A motorist stopped and detained by a police detective raised a

genuine issue of fact as to whether the initial seizure of herself and her

vehicle had been improperly extended for over two hours after there was no

longer any reasonable suspicion of any criminal activity. She claimed that

she remained handcuffed at the scene for a prolonged period of time and

was then directed to go with officers to police headquarters. Overturning

summary judgment for the detective, the appeals court ruled that the

plaintiff alleged facts from which a reasonable jury or other fact finder could

find that her continued detention violated the Fourth Amendment.

Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis 29520 (2nd Cir.).

2.   Officers and a town were not entitled to dismissal of a woman's claim

that she was unlawfully detained. While it could be argued that any

reasonable person would have felt free to leave when she was being

questioned by one of the defendant officers, the court stated, the arrival of

three officers changed the circumstances enough to possibly constitute an

unlawful seizure or improper interrogation, requiring further proceedings.

The court rejected the argument that the plaintiff had clearly already been

seized by the one officer before the others arrived, and that they therefore

could not be liable for her seizure. Saenz v. Lucas, 07 Civ. 10534, 2008

U.S. Dist. Lexis 69571 (S.D.N.Y.).

         C.  Magistrate Hays acts as though it is ok for law enforcement to

interfere with the political process and/or freedom of speech and association

and nothing wrong with Appellant having been roughly handcuffed,

detained for an extended period of time in a police car, arrested, charged

with trespass, pled guilty against his will and without full due process found

guilty and placed on probation.   And Magistrate Hays wants everyone to

believe and accept non facts as undisputed facts.    In the least, Appellant

Reed’s rights under the 1st, 4th, and 14th Amendments to the US

Constitution were violated and subject to full review by a jury pursuant to

the laws of the USA.   Sad indeed that violations of those rights are declared

frivolous.  

      11.  Abuse of discretion for Magistrate Hays to deny Appellant’s

application to proceed on appeal as a pauper.

A. Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (except in

extraordinary circumstances, all civil litigants must be afforded a

meaningful opportunity to be heard); Chambers v. Baltimore & Ohio R.R.

Co., 207 U.S. 142, 148 (1907). Justice Stevens thus stated:   Freedom of

access to the courts is a cherished value in our democratic society. . . . The

courts provide the mechanism for the peaceful resolution of disputes that

might otherwise give rise to attempts at self-help. There is, and should be,

the strongest presumption of open access to all levels of the judicial system.

. . . This Court, above all, should uphold the principle of open access.

Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070-1071 (1985) (Stevens, J.,

concurring) (footnotes omitted) (emphasis added).  Unreasonable exclusion

of individuals from the proceedings and activities of courts undermines the

legitimacy of the courts and decreases public trust in the judicial system as a

whole. … (“[T]he reduction of governmental resources to provide legal

services to the poor is, for them, a removal of the civil justice system’s

accessibility (and thus, its legitimacy).”).

                B.  “…Perhaps no characteristic of an organized and cohesive

society is more fundamental than its erection and enforcement of a system

of rules defining the various rights and duties of its members, enabling them

to govern their affairs and definitively settle their differences in an orderly,

predictable manner. Without such a "legal system," social organization and

cohesion are virtually impossible; with the ability to seek regularized

resolution of conflicts, individuals are capable of interdependent action that

enables them to strive for achievements without the anxieties that would

beset them in a disorganized society.  [Footnote 6] In short, "within the

limits of practicability," id. at 339 U. S. 318, a State must afford to all

individuals a meaningful opportunity to be heard if it is to fulfill the promise

of the Due Process Clause….No less than these rights, the right to a

meaningful opportunity to be heard within the limits of practicality, must be

protected against denial by particular laws Page 401 U. S. 380 that operate to

jeopardize it for particular individuals. See Mullane v. Central Hanover Tr.

Co., supra; Covey v. Town of Somers, 351 U. S. 141 (1956)….” BODDIE

V. CONNECTICUT, 401 U. S. 371 (1971).

        C.   "...See Roberts v. United States Dist. Court, 339 U.S. 844,

845, 70 S.Ct. 954, 955, 94 L.Ed. 1326 (1950) ("the denial by a district judge

of a motion to proceed in forma pauperis is an appealable order.")...." From

PHIPPS v. KING, US Ct of Appeals, 6th Circuit 866 F.2d 824 (1988)

       D.  Just because Appellant paid the initial filing fee in the case is

no reason to deny him equal access to the courts for purpose of appeal.  

And for all the reasons stated in other points herein this case should not be

considered frivolous or without merit and those reasons used to claim he

cannot file as a pauper.   Indeed, the City of Springfield has succeeded in

contributing to Appellant’s poverty and is believed to, as a part of its pattern

and conspiracy to deny him his constitutional rights, have interfered with

his ability to find work.  Appellant is a pauper, who should be allowed

his full day in court for a jury to make full review of this case.

CONCLUSION:

Magistrate Hays erred in failing to give reasons for declaring the case

frivolous.  Appeals court should overturn dismissal of case and allow

Appellant Reed to start at the beginning or the Court should order the

Appellees/Defendants to offer a monetary settlement. This case is important

and not frivolous because most people would have quit, went home, never

participated again and cases of false arrest in the future may result in more

citizens turning away from participating which is already a big problem

presently for our government at all levels.   Appellant kept going and

developed a statewide group that helped win McCaskill the primary and then

helped in her campaign for the United States Senate. McCaskill herself then

made world news by  being the first Senator to stepout and support Obama

for President and she even used the same terminology “he inspires people”. 

“…[J]ustice must satisfy the appearance of justice.” Aetna Life Ins. Co.

v. Lavoie 475 US 813, 825; 106 S Ct. 1850 (1986).    See also In re

Murchison 349 US 133, 136; 75 Sct 623, 625 (1955)   There is nothing in

the Court’s mishandling of this case that has given an appearance of

justice.   What began as a case that stemmed from political activism in the

public interest has been used to make an example of Appellant/Plaintiff and

to discourage others from active participation in free and fair elections, in

Democracy.  

 

 

Respectfully submitted, Steven L. Reed    

 

_________________________________________________ 

Steven L. Reed, Plaintiff Pro Se

      1441 South Estate Avenue

Springfield MO 65802

417-882-2942

stevenlloydreed@hotmail.com

 

 

CERTIFICATE OF COMPLIANCE

 

Undersigned appellant hereby certifies, pursuant to Rule32(a)(7)(C), Fed. R.

 

App. P., and 8 Cir. th R. 28A(c), that the foregoing Brief was printed using

 

WordPerfect version 10, Times New Roman proportional typeface in 14-

 

point type size, and that the brief complies with the type-volume limitations

 

of Rule 32(a)(7), Fed. R. App. P. Exclusive of material not counted under

 

Rule 32(a)(7)(B)(iii), the brief contains 13, 881 words.

 

 

 

 

 

 

 

 

                                CERTIFICATE OF SERVICE                                

Certificate of Service---I certify that on _________________ a true copy of the above was mailed, postage pre paid or electronically to the last known mailing address of each party to this lawsuit and the United States Court of Appeals for the Eight Circuit. 

 

Respectfully submitted, Steven L. Reed    

_________________________________________________ 

Steven L. Reed, Plaintiff Pro Se

      1441 South Estate Avenue

Springfield MO 65802

417-882-2942

stevenlloydreed@hotmail.com

 

David R. Wichmer, Esq.

Attorney Appellees City of Springfield, MO, Springfield MO Police Department, and John and Jane Does

 

John W. Housley, Esq.

Attorney for Defendant Gail M. Campbell

 

Taylor, Stafford, Clithero, Fitzgerald & Harris, LLP

Attorney for Muhammad Salem

 

John G. Schultz

Attorneys for Defendant Choice Hotels

 

Craig Hosmer

Attorney for Steve Stepp

 

ADDENDUM

 

 

State of Missouri Department of Corrections

Board of Probation and Parole

1511 Christy Drive

Jefferson City, MO 65101

 

Dear Mr. Steve Long:

 

Your letter of September 22, 2008 as follows:

 

This writing is in reference to your application for Executive Clemency.

 

It has been determined that the offense for which you seek clemency is a municipal conviction.  Please be advised that the Governor is not authorized to consider clemency on municipal cases, therefore, we will close further interest in this matter.

 

I Steven Reed hereby declare your letter and opinion and ruling are wrong and should be investigated by the proper authorities.  This involves an arrest by Springfield Police in which I argue that was provoked in part and combination of City of Springfield Police, State Governor and others who had a meeting of the minds and had Steven Reed and Jeff Kenkel arrested for handing out Draft Claire Materials.

 

It took me several hours to gather all the items requested by Amanda Moore of Probation and Parole including:

 

Names dates of birth, and SSN# of all adults in tour home.

Names, addresses, and phone numbers of immediate family.

School records,

List of employment for the past five years with addresses, phone

numbers, dates of employment, rate of pay, and reason of termination.

Last two years of income returns.

Most recent paycheck stub from current employer

Copies of Professional licenses.

Any letters of recommendation from law-abiding individuals (personal

and/ or professional) You have known for more than three years,

including their address and phone number.

Disability or government assistance benefit paperwork

Any medical records documenting a physical or mental health limitation.

Military records

12. any other material you deem appropriate for our interview.

 

I had to take off work to meet with Amanda Moore on July 29, 2008.  She signed a card saying I was there see exhibit.  The meeting was close to two hours.  She did seem to side with the City of Springfield since she knows I have a Federal Case Pending Case Number.  In that Federal Case I have requested a Civil Rights Lawyer to be appointed by the Court to help me with situations such as this in which Civil Rights Violations concerning State and Federal Constitutional Rights.

 

The following letters concern the alleged pleading Guilty by Plaintiff Reed:

September 18, 2008

 

To:      Missouri Advisory Committee

          217 East McCarty Street

          Jefferson City, Missouri 65101

 

Re:  Response and Complaint to Missouri Supreme Court Advisory Committee.

 

Dear Members of the Missouri Supreme Court Advisory Committee

 

This issue of Steven Reed being plead guilty against his request is an issue in the Federal Case No. 05-3133-CV-S-SWH.because the Magistrate Judge has mentioned it in herorders.  I Steven Reed have requested Federal Civil Rights Lawyers and plan ask for a delay in the trial since this issue of misconduct of a lawyer pleading myself guilty is improper to the highest degree and violating ethical standards.  Steven Reed request a delay in the trail in the referenced case to allow time for the government to respond including, but not limited to, the FBI and the USA Department of Justice and the issues contained in this letter are one of the issues that has to be addressed.

The letter addressed to me from Region XV Disciplinary Committee dated August 27, 2008 state s that I may request a review of this activity, investigation and failures of the “Randee S. Stemmons, Special Representative” response to my written complaint against attorney Robert E. Childress for gross negligence and incompetence concerning his faulty representation in the case where I was falsely accused, arrested, detained, denied legal representation, and legal defense, and was plead guilty by Robert Childress without a signature, my knowledge or consent of myself Steven Reed.  Mr. Childress plead me guilty and then stated in a letter to me the Judge “granted me SIS.”  I Steven Reed was denied a fair and speedy trial by Jury, (Constitutional Rights), and further the right to be confronted with those who made the false allegation and or contributed to them.

 

This letter itself shows I was not advised of the options presented, nor the potential repercussions of a "Guilty" plea for my honor or representation.  Further, the first page of the August 27, 2008 letter to me by the committee investigating did falsely state, the fact that I had not “complained” objected or challenged this denial of my rights to a fair and speedy trial by jury and to be confronted with witnesses that has conspired, or made false complaints via hearsay, and had in effect blocked and substantially abridged my federally constitutionally protected rights to be engaged in governmental functioning and governmental freedoms to appear, attend, and participate in a publicly advertised and publicly invited “Jackson Days” Democratic Convention”.  Without my legal rights upheld and fully applied, Attorney Robert E. Childress did knowingly and willfully permit and allow those involved in possible criminal conspiracies against myself to be concealed or guarded. 

 

The obvious conflicts of interest, that those now holding the committee of the Region XV Disciplinary investigating my complaint against Childers are themselves associated, connected to and bias with or to Steven Stepp, (who was listed as a defendant in the original federal motion listed above), and Michael T. Pivac who himself was a former Democratic Chairman for Greene County Democrats and those involved in the past formation of the “Democratic Alliance 1986” *(See Exhibit A).  These people including the Special Representative Randee S. Stemmons were involved together in 1986 and still are tied by this investigative committee.  It would appear an obvious additional conflict of interest and biased fashion that could shine a negative light on the Local Democratic Party for possible violations of civil rights.  The ruling by Representative Stemmons seems to be a ruling of protection for those in her past, and those in associations and those she had prior connections to and with.

 

The Missouri Supreme Court must accept responsibility and accountability for this failure to adequately police and oversight the courts and attorneys who present this type and manner of abuses from a lack of Article 5, Missouri Constitution.

 

Sincerely,

 

Steven L. Reed

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The following was submitted by Appellant/Plaintiff in motions on April

17,2008 and May 2, 2008.

INJURIES

Malice was committed by the City of Springfield and other parties without

just cause or reason, to commit a wrongful act that will result in harm to another.  Color of Law---A person acts under color of law when he or she exercises power possessed by virtue of law and “made possible only because the wrongdoer is clothed with the authority of state law.”  Defendant Choice Hotel, Defendant Muhammed, Defendant City of Springfield,

Defendant Springfield, Mo. Police Department, Defendant Gale Ann Campbell, Defendant Steve Stepp, and Defendant Bob Holden all appear to have had an involvement of a “meeting of the minds” that Plaintiff Steven Reed and Jeff Kenkel were going to quit handing out campaign flyers to Draft Claire MCaskill for Governor. 

 

Oppression---Plaintiff Reed  was arrested because of Classism the institutional, cultural, and individual set of practices and beliefs that assign differential value to people according to their socioeconomic class; and an economic system which creates excessive inequality and causes basic human needs to go unmet.  Clearly if Reed was wealthy or perceived to be wealthy the Springfield Police and the other actors would not have taken the actions they did.  Reed was also subject to "Bullying---the willful, conscious desire to hurt another and put him/her under stress"

 

Fraud

City used police report to commit fraud.  Plaintiff Reed was told the City of Springfield was going to come after him for legal charges by Attorney for Steve Stepp.

Treason
is Violation of allegiance toward one's country or sovereign, especially the betrayal of one's country by waging war against it or by consciously and purposely acting to aid its enemies.  The City of Springfield may have aided enemies of the USA by giving them reasons to point out the USA takes actions against their own citizens for freedom of speech.

 

Loss of labor which you received to unjustly enrich yourselves---Clearly Reed has spent much time over the last five years trying to defend the case and has spent time he could have been on the clock getting paid for.  The case also likely effected his possible hiring on for some jobs.  It is unclear if his arrest record appears when employers do background checks.

 

Violation of due process 

Plaintiff Reed was not given proper due process by the police in deciding whether to unlawfully detain or arrest him.

Breach of contract (Original U.S. Constitution 1787)

         

Clearly Reed was violated in the area of Freedom of Speech, illegal detainment, denied right to petition government, and virtually all the rights fee citizens are supposed to have via the contract the USA government has with the People known as the US Constitution…….

 

The events that brought this civil matter occurred on April 4, 2003 for

 

handing out campaign Draft Claire materials.  Plaintiff filed April 1, 2005 in

 

Court and has spent on average of 15 hours per week on research, discovery,

 

motions, typing, time in transport to federal buildings, time making copies,

 

and expending money from sending same through the US mail.  The

 

ongoing stress and mental anguish caused by this must be considered. 

 

15 hours x 52 weeks = 780 hrs, . x 3 years = 2,340  total man hours.

 

Estimated damages are:

 

10 Million Dollars Total

 

TIME TO MOUNT DEFENSE AND CIVIL ACTION……1 Million Dollars

 

EMOTIONAL DAMAGE…………………………………4 Million Dollars

 

PUNATIVE DAMAGES…………………………………..5 Million Dollars

 

www.thestevenreedlegalfund.4t.com

 
 
 
 
 
BUNCH OF B.S.
 

IN THE UNITED STATES

EIGHTH CIRCUIT COURT OF APPEALS

Case No. 09-1351

STEVEN L. REED

Plaintiff/Appellant,

v.

CHOICE HOTELS INTERNATIONAL, et al.,

Defendants/Appellees.

Appeal from the United States District Court

for the Western District of Missouri

Honorable Sarah W. Hays, United States Magistrate Judge

Case No. 05-03133-CV-S-SWH

BRIEF OF APPELLEE

GAIL ANN CAMPBELL

LOWTHER JOHNSON,

Attorneys at Law, LLC

John W. Housley

Missouri Bar Number 28708

901 St. Louis Street, 20th Floor

Springfield, MO 65806

Telephone: (417) 866-7777

Facsimile: (417) 866-1752

ATTORNEYS FOR APPELLEE GAIL ANN CAMPBELL

i

SUMMARY AND REQUEST FOR ORAL ARGUMENT

Defendant Gail Ann Campbell was not properly served with process when

Plaintiff merely left a copy of the Summons and Complaint at her place of

employment. She was not served personally. Nor were the Summons and

Complaint left with anyone at her residence. Plaintiff never notified Ms. Campbell

by mail of the commencement of the action and requested she waive service of the

Summons and Complaint pursuant to Fed.R.Civ.P. 4. No other methods of service

authorized by the Federal or Missouri Rules of Civil Procedure were used.

Defendant Campbell entered her special appearance to file a motion to dismiss

Plaintiff’s Complaint for insufficient service of process and lack of jurisdiction

over the person. The District Court correctly granted Defendant Campbell’s

Motion to Dismiss and dismissed her from this action.

Plaintiff has not requested oral argument. Appellee Campbell states oral

argument would not be materially helpful to the Court in deciding the issues raised

in this appeal and waives oral argument.

ii

TABLE OF CONTENTS

SUMMARY AND REQUEST FOR ORAL ARGUMENT...................................... i

TABLE OF AUTHORITES .................................................................................... iii

JURISDICTIONAL STATEMENT ......................................................................... 1

STATEMENT OF ISSUE PRESENTED FOR REVIEW....................................... 2

STATEMENT OF THE CASE................................................................................. 3

STATEMENT OF THE FACTS .............................................................................. 4

SUMMARY OF THE ARGUMENT ....................................................................... 8

STANDARD OF REVIEW...................................................................................... 9

ARGUMENT............................................................................................................ 9

I. Standard of Review.............................................................................. 9

II. Gail Campbell was not properly served............................................. 10

CONCLUSION....................................................................................................... 15

CERTIFICATE OF SERVICE ............................................................................... 17

CERTIFICATE OF COMPLIANCE...................................................................... 18

iii

TABLE OF AUTHORITIES

Cases

Adams v. Allied Signal General Aviation Avionics

, 74 F.3d 882, 884-86

(8th Cir. 1996)...................................................................................................9

Brown v. Frey,

806 F.2d 801, 804 (8th Cir. 1986) ...................................................9

CF. Volkswheenwerk Aktiengesellschaft v. Schlunk

, 486 U.S. 694, 700,

108 S.Ct. 2104, 100 L.Ed. 2d 722 (1988).......................................................13

Fitzwater v. Ray

, 2008 WL 2705361*1 (W.D. Ark., July 8, 2008) ......................15

Marshall v. Warwick

, 155 F.3d 1027 (8th Cir. 1998)..............................................2

McGinnis v. Gustafson

, 978 F.2d 1199, 1201 (10th Cir. 1992) ..............................1

Peterson v. Sheran,

635 F2d 1335 (8th Cir. 1980) .................................................15

Shapiro v. Brown

, 979 S.W.2d 526, 529 (Mo. App. 1996) .....................................2

Slack v. St. Louis County Government

, 919 F.2d 98, 99-100 (8th Cir. 1990) .........5

State ex rel. Northwest Ark. Produce Co. v. Gaertner

, 573 S.W.2d 391,

395-96 (Mo. App. E.D. 1978).........................................................................14

United States v. Williamson

, 53 F.3d 1500, 1514 n. 7 (10th Circ. 1995), cert.

denied, 516 U.S. 882 (1995) .............................................................................1

iv

Rules

28 U.S.C. § 1291....................................................................................................... 1

Eighth Circuit Rule 28A(b)....................................................................................... 1

Fed.R.App.Pro. 28(a)(4) (2009)................................................................................ 1

Fed.R.App.Pro. 28(a)(6)-(7) ..................................................................................... 4

Fed.R.App.Pro. 28(1)................................................................................................ 9

Fed.R.Civ.P. 4(e)..................................................................................................... 11

Fed.R.Civ.P. 4(e)2................................................................................................... 12

Mo.R.Civ.P. 54.13(a)(1) ......................................................................................... 12

Mo.R.Civ.P. 54.13(b)(1) ......................................................................................... 12

Rule 4, Fed.R.Civ.P. ................................................................................................. 2

Rule 4(d), Fed.R.Civ.P.............................................................................................. 5

Rule 4(e)1, Fed.R.Civ.P. ......................................................................................... 12

Rule 4(e)2, Fed.R.Civ.P. ......................................................................................... 12

Rule 4(m), Fed.R.Civ.P.(m)...................................................................................... 6

Rule 54.13(a), Mo.R.Civ.P. .................................................................................... 13

1

JURISDICTIONAL STATEMENT

Appellee Gail Ann Campbell ("Campbell") agrees with Appellant Steven L.

Reed ("Reed") that this Court has jurisdiction over this appeal pursuant to 28

U.S.C. § 1291.

Reed's Brief, however, does not comply with Federal Rule of Appellate

Procedure 28(a)(4) in that it does not state the basis for the District Court's subject

matter jurisdiction, does not contain facts establishing the District Court or this

Court's jurisdiction, and does not contain any assertion that the appeal is from a

final order or judgment that disposes of all parties' claims.

See generally

Appellant's Brief

, Page 1; See also Fed.R.App.Pro. 28(a)(4) (2009).1

1

Plaintiff has failed to include in an appendix, or even as an addendum to his Brief, the Order of the District Court

as required by Eighth Circuit Rule 28A(b). Thus, this Court may affirm the District Court without reaching the

merits of this Appeal.

See McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992). “All counsel should

understand the potentially serious consequences that could result from noncompliance with the applicable Rules of

Appellate Procedures.”

United States v. Williamson, 53 F.3d 1500, 1514 n. 7 (10th Cir. 1995), cert. denied, 516

U.S. 882 (1995).

2

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Reed's Appellate Brief preserves no issues for review by this Court with

respect to Gail Ann Campbell.

See generally Appellant's Brief. Specifically,

Reed's "Statement of the Issues" does not properly delineate any issue for a proper

appeal of the District Court's Order granting Campbell's motions to dismiss for

insufficient service of process under Rule 4, Fed.R.Civ.P., and for lack of

jurisdiction over the person.

See Appellant's Brief, p. 1-4. Indeed, of the nine (9)

separately numbered issues raised by Reed in his Brief, none assert an error by the

District Court in granting Defendant Campbell's motions to dismiss. (Doc. No. 45).

If the Court chooses to review the District Court's dismissal of Defendant

Campbell from the action for insufficient service of process and lack of jurisdiction

over the person, notwithstanding Reed's failure to preserve this issue for review by

this Court, the proper issue is:

I. Whether the District Court correctly dismissed Reed's claims against

Campbell for lack of jurisdiction over the person because of insufficient service of

process.

Apposite Cases:

Shapiro v. Brown

, 979 S.W.2d 526, 529 (Mo. App. 1996)

Marshall v. Warwick

, 155 F.3d 1027 (8th Cir. 1998)

3

STATEMENT OF THE CASE

Plaintiff Steven L. Reed filed this case in the United States District Court for

the Western District of Missouri on April 1, 2005, alleging a variety of violations

of Federal statutes and State laws against numerous public and private entities and

officers, including Gail Ann Campbell. (

See Plaintiff's Complaint, Doc. No. 1).

Because of the total failure of Reed to properly serve Ms. Campbell with process,

she filed a Motion to Dismiss for lack of jurisdiction over the person due to

insufficiency of service of process pursuant to Fed.R.Civ.P. 4 on May 9, 2005.

See

Campbell's Motion to Dismiss

, (Doc. No. 11). The Honorable Sarah W. Hays, on

October 21, 2005, deferred ruling upon Campbell's Motion to Dismiss to allow

Plaintiff thirty (30) additional days to properly serve Defendant Campbell (Doc.

No. 30). After Plaintiff filed a report on November 22, 2005, stating that he had

been unable to properly serve Defendant Campbell, (Doc. No. 34), Defendant

Campbell filed an additional motion to dismiss (Doc. No. 35) based upon Reed's

failure to comply with the Court's October 21, 2005 Order. Judge Hays granted

Defendant Campbell's motions to dismiss and dismissed her from this action on

March 31, 2006 (Doc. No. 45).

4

STATEMENT OF THE FACTS

Ms. Campbell disagrees with Plaintiff's Statement of Facts. The "Facts" are

nothing more than repetition of Plaintiff's conclusory allegations and innuendo that

were raised in his voluminous, rambling Complaint which the District Court

ultimately summarily dismissed.

See Appellant's Brief, pp. 5-8. The "Statement of

Facts" section of Plaintiff's Brief contains no citations to the record or any true

facts

at all, as required by Fed.R.App.Pro. 28(a)(6)-(7).

Because Plaintiff's Brief does not comply with Federal Rule of Appellate

Procedure 28, Plaintiff has failed to preserve any issue for review by this Court.

See Slack v. St. Louis County Government

, 919 F.2d 98, 99-100 (8th Cir. 1990)

(per curiam) (stating "Appeals that fail to comply with the applicable rules

governing briefs are subject to dismissal.") (Internal citation omitted). Thus, there

are no facts relevant to any issues properly submitted to this Court for review with

respect to Defendant Campbell.

Moreover, the District Court dismissed Ms. Campbell as a defendant in

Plaintiff’s suit for lack of jurisdiction over the person due to insufficiency of

service of process.

See Order, Doc. No. 45. Any review by this Court of such a

dismissal only requires an analysis of the undisputed relevant facts pertaining to

Plaintiff's failure to comply with the federal requirements for service of process or

substitute service of process under Missouri law.

5

Plaintiff filed his lawsuit on April 1, 2005. (Doc. No. 1). On or about April

6, 2005, an individual other than the Plaintiff delivered a copy of Plaintiff's 31-

page

pro se Complaint, along with a Summons, to Officer Carlos Kerley at the

Springfield Police Department's south side station on Battlefield Road in

Springfield, Missouri. The front of the Summons stated that it was to "Gail Ann

Campbell". (Doc. No. 8). (

See Suggestions in Support of Defendant Campbell's

Motion to Dismiss

Doc. No. 11). Gail Ann Campbell was not served personally

with the Summons and Complaint in this case, nor was anyone residing at her

place of residence served with the Summons and Complaint. Plaintiff never mailed

Defendant Campbell a copy of the Summons and Complaint with a request to

waive service of process, as provided in Rule 4(d), Fed.R.Civ.P

Ms. Campbell, through a special appearance, filed a motion to dismiss based

upon insufficiency of service of process and for lack of jurisdiction over the person

(Doc. No. 10-11). In response, the Plaintiff did not deny that he had not properly

served Defendant Campbell (

See Plaintiff's Objections to Defendant Campbell's

Motion to Dismiss

, Doc. No. 14, and Plaintiff's Motion (with incorporated

Suggestions in Support

thereof) for Order to Compel Service or Waive Personal

Service Defendant Campbell to Accept or Acknowledge

, Doc. No. 15). Rather,

Plaintiff requested the District Court to require Defendant Campbell to provide

6

Plaintiff with an address where she will accept mail service and sign a waiver, or

where Defendant Campbell can be personally served. (Doc. No. 15).

The District Court on October 21, 2005, entered an Order finding that

Plaintiff had not properly served Ms. Campbell and other Defendants within the

120-day period prescribed by Fed.R.Civ.P. 4(m) (Doc. No. 30). However, rather

than dismissing the action against Defendant Campbell, the court deferred ruling

on Defendant's Motion to Dismiss (Doc. No. 11) and granted the Plaintiff an

additional thirty (30) days to properly serve Ms. Campbell and certain other

Defendants. The Court's Order also warned Plaintiff that "[f]ailure to properly

serve these Defendants within this time period may result in the dismissal of the

action." (Doc. No. 30 at p. 8).

On November 22, 2005, Plaintiff filed his report with the Court (Doc. No.

34) acknowledging he had not served Defendant Campbell with a copy of the

Summons and Complaint. On November 28, 2005, Defendant Campbell filed an

additional Motion to Dismiss (Doc. No. 35) based upon Plaintiff's failure to

comply with the requirements of the Court's Order of October 21, 2005. The

District Court on March 31, 2006 entered an Order finding that there is no

indication that service of process have been made on Defendant Campbell and that

Plaintiff's action cannot proceed without jurisdiction over her person. (Doc. No. 45

at p. 2). The Court granted Defendant Campbell's motions to dismiss (Doc. Nos.

7

10 and 35), and dismissed Ms. Campbell from this action. The Court also granted

Defendant Salam's separate motion to dismiss for insufficiency of service of

process on the same grounds on March 31, 2006.

See Order, Doc. No. 46. This

appeal followed after the District Court granted summary judgment in favor of the

City of Springfield on November 7, 2008 (Doc. No. 137).

8

SUMMARY OF THE ARGUMENT

The Court should affirm the District Court's Order dismissing Defendant

Campbell from this action because it correctly found Plaintiff's attempted service

on Ms. Campbell was insufficient as a matter of law. Plaintiff failed to offer any

evidence or authority to support the legality of his chosen method of service.

Indeed, Plaintiff acknowledged in his report to the District Court that he had been

unable to properly serve Defendant Campbell. Accordingly, the District Court's

Order dismissing Defendant Campbell from this action for lack of jurisdiction over

the person because service of process had not been properly made upon Defendant

Campbell should be affirmed. Even when given the most liberal construction, the

issues and arguments set forth in Appellant’s Brief preserve nothing for Appellate

review with respect to Defendant Campbell.

9

ARGUMENT

I. STANDARD OF REVIEW.

This Court reviews the propriety of service of process under a

de novo

review standard while the District Court's dismissal of a defendant for lack of

jurisdiction over the person is reviewed under an abuse of discretion standard.

See

Marshall v. Warwick

, 155 F.3d 1027, 1030 (8th Cir. 1998); Adams v. Allied Signal

General Aviation Avionics

, 74 F.3d 882, 884-86 (8th Cir. 1996) (dismissal for

insufficient service of process).

Because Reed’s

pro se Appellant’s Brief presents no issues statement and

did not identify any basis of alleged error by the District Court in dismissing Gail

Campbell as a Defendant in the instant action, as well as no legal argument,

Plaintiff’s Brief fails to comply with the Federal Rules of Appellate Procedure.

See

Fed.R.App.P. 28(i); Slack v. St. Louis County Gov’t, 919 F.2d 98, 99-100 (8th

Cir. 1990) (per curiam) (similarly dismissing appeal where Appellant’s Brief

contained no recital of facts, did not point out any basis for an alleged District

Court error, and did not challenge the District Court’s reasoning);

Brown v. Frey,

806 F.2d 801, 804 (8

th Cir. 1986) (pro se litigants are not excused from compliance

with procedural law).

10

II. GAIL ANN CAMPBELL WAS NOT PROPERLY SERVED.

The purported service of the Summons and Plaintiff's Complaint on Gail

Ann Campbell was unquestionably insufficient. She never received personal

service as required by State and Federal law. Ms. Campbell’s motion to dismiss

for insufficiency of service of process was never seriously contested by the Mr.

Reed who offered no evidence to contradict her statement that she was not

personally served with a copy of the Summons and Complaint in the instant action.

See Suggestions in Support of Defendant Campbell's Motion to Dismiss

, Doc. No.

11 at p. 1. Indeed, Mr. Reed did not deny that he had not properly served

Defendant Campbell. (

See Plaintiff's Objections to Defendant Campbell's Motion

to Dismiss

, Doc. No. 14, and Plaintiff's Motion (with Incorporated Suggestions in

Support Thereof) for an Order to Compel Service or Waiver Personal Service

Defendant Campbell to Accept or Acknowledge

, Doc. No. 15). Rather, Mr. Reed

requested the Court to require Defendant Campbell to accept or waive personal

service. When the District Court entered an Order giving Plaintiff an additional

thirty (30) days in which to properly serve Defendant Campbell (Doc. No. 30), Mr.

Reed filed his report with the Court thirty-one (31) days thereafter acknowledging

he did not serve Defendant Campbell with a copy of the Summons and Complaint.

(Doc. No. 34).

11

More importantly, Reed’s opening Brief does not even mention the issue or

offer any factual or legal authorities to excuse his failure to properly serve

Defendant Campbell. Consequently, the District Court's Order dismissing Gail

Ann Campbell as a Defendant in the instant action for lack of jurisdiction of the

person due to insufficiency of service of process should be affirmed.

Gail Ann Campbell is alleged by Mr. Reed to be a resident of the State of

Missouri (Doc. 1, Complaint, p. 9). The Rules governing proper service of process

upon an individual residing in Missouri are plain. Federal Rule of Civil Procedure

4 requires personal service upon an individual defendant, unless a defendant

waives service of the summons. Rule 4(d) provides that, to avoid costs, the

plaintiff may notify a defendant of the commencement of an action and request the

defendant waive service of the summons by placing the notice and request in

writing, addressing it directly to the defendant, dispatching it with a copy of the

Complaint through first class mail, or other reliable means, informing the

defendant of the consequences of compliance and of a failure to comply with the

request, setting forth the date on which the request is sent, and allowing the

defendant a reasonable time to return the waiver. Mr. Reed never attempted to

avail himself of this method of serving Defendant Campbell.

If a plaintiff is unable to obtain a defendant’s waiver of service of the

summons, Fed.R.Civ.P. 4(e) provides two methods for obtaining personal service

12

of process on an individual. Under Rule 4(e)(1), service may be made on an

individual in any judicial district in conformity with State law. Subsection 2 of the

Rule allows for service by either (1) delivering a copy of the summons and

complaint to the individual

personally; (2) by leaving copies at the individual('s)

dwelling or usual place of abode with a person of suitable age

2 residing therein; or

(3) leaving copies with a person designated by the Defendant or by law to receive

process. Fed.R.Civ.P. 4(e)(2) (emphasis added); Mo.R.Civ.P. 54.13(b)(1).

There is no dispute that none of the requirements for proper service of

process were met by Plaintiff with respect to Defendant Campbell. It is undisputed

that Plaintiff did not serve Ms. Campbell personally. (

Plaintiff's Report to the

Court, Doc. No. 34

). Nor was the Summons and Complaint left with anyone at her

usual place of abode who was of suitable age and also resided there. Finally, Ms.

Campbell has never designated her employer or anyone at her place of

employment to receive process on her behalf. Nor was anyone appointed by law to

accept service of process for her.

Although Mr. Reed never personally served Ms. Campbell as required by

Rule 4(e), Fed.R.Civ.P., and the applicable State Rule, Rule 54.13(a), Mo.R.Civ.P.,

he attempted to serve Campbell by leaving a copy of the Summons and Complaint

at the front desk of one of the branch locations of the Springfield Police

2

Under Missouri law, the individual must be over the age of 15 years. Mo.R.Civ.P. 54.13(b)(1).

13

Department with another police officer. (Doc. No. 8;

Suggestions in Support of

Defendant Campbell's Motion to Dismiss

, Doc. No. 11, p. 1). Plaintiff may argue

that Defendant Campbell admitted service of process because her motion to

dismiss referenced the delivery of the Summons and Complaint to another police

officer at a branch office of her employer. Such an interpretation is unavailing if

the rules pertaining to service of process are to have any meaning more than the

mere delivery of documents.

cf. Volkswheenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed. 2d 722 (1988) (explaining in the

international context that "the term 'service of process' has a well-established

technical

meaning[:]… a form of delivery of documents that is legally sufficient to

charge the defendant with notice of a pending action.") (emphasis added).

The express requirements for service of process under Fed.R.Civ.P. 4(e)

address who can serve process, where it can be served, who can accept it, and

whether proof of service is required. Plaintiff's attempt at service, namely, leaving

a copy of the Summons and Complaint at a branch office of Plaintiff's employer

with another police officer has been rejected in Missouri.

Shapiro v. Brown, 979

S.W.2d 526, 529 (Mo. App. 1996). As in this case, in

Shapiro, the Plaintiff

attempted to serve the Defendant by leaving the Summons and Petition with a coworker

at her place of employment.

Shapiro, 979 S.W.2d at 529. The court held

14

that such service was improper under Rule 54.13 and thus the trial court was

obliged to dismiss.

Id.

This Court should follow

Shapiro and affirm the District Court's dismissal.

Plaintiff has acknowledged his attempted service of process upon Defendant

Campbell was insufficient and otherwise improper under the Federal Rules of Civil

Procedure. (

See Report to the Court, Doc. No. 34; Fed.R.Civ.P. 4(e); Marshall v.

Warwick

, 155 F.3d 1027 (8th Cir. 1998); see also Mo.R.Civ.P. 54.13(b)(1); State

ex rel. Northwest Ark. Produce Co. v. Gaertner

, 573 S.W.2d 391, 395-96 (Mo.

App. E.D. 1978)(jurisdiction not acquired when service is improper)).

Although the Plaintiff failed to properly serve Defendant Campbell within

the 120-day period prescribed by Fed.R.Civ.P. 4(m), nevertheless, the District

Court granted Plaintiff thirty (30) additional days in which to properly serve

Defendant Campbell while simultaneously warning Plaintiff that his "[f]ailure to

properly serve [Defendant Campbell] within this time period may result in the

dismissal of the action." (Doc. No. 30.) Thirty-one (31) days thereafter, the

Plaintiff reported to the Court he had not served Defendant Campbell. (Doc. No.

34). Because Defendant Campbell was not served properly, the District Court

lacked jurisdiction over the person and all of Plaintiff's claims against Defendant

Campbell were properly dismissed.

15

The U.S. District Court for the Western District of Arkansas recently

concluded the same in a very similar case. There, the plaintiff had filed suit

naming a number of individuals and state employees just as here.

See Fitzwater v.

Ray

, 2008 WL 2705361*1 (W.D. Ark., July 8, 2008). Several of the Defendants

moved to quash service of process as insufficient or improper.

Id. at *3-5. The

Arkansas District Court had "no difficulty" reaching the conclusion that service

was not perfected.

Id. at *3, 5. In particular, just as here, the District Court found

that the Plaintiff's leaving of a summons and complaint at someone's office does

not amount to proper service of process.

Id. at *3. If a defendant is not served

with process, the court lacks personal jurisdiction over the defendant.

Peterson v.

Sheran,

635 F.2d 1335 (8th Cir. 1980).

CONCLUSION

For these reasons, this Court should affirm the District Court's order granting

Ms. Campbell's Motion to Dismiss for lack of jurisdiction over the person due to

insufficiency of service of process.

16

Respectfully submitted,

LOWTHER JOHNSON

Attorneys at Law, LLC

BY: /s/John W. Housley

John W. Housley

Missouri Bar Number 28708

901 St. Louis Street, 20th Floor

Springfield, MO 65806

Telephone: 417-866-7777

Facsimile: 417-866-1752

Attorneys for Appellee

Gail Ann Campbell

17

CERTIFICATE OF SERVICE

I hereby certify that two (2) true and correct copies of the foregoing Brief,

along with a virus-free DVD, were sent by United States mail, proper postage

prepaid, this 26

th day of June, 2009, to:

Steven L. Reed

1441 S. Estate Avenue

Springfield, MO 65804

Appellant

with copies delivered by United States mail, postage prepaid, to:

Thomas E. Rykowski

Assistant City Attorney

840 Boonville

Springfield, MO 65802

Carl Stephen Yendes

City of Springfield

840 Boonville

Springfield, MO 65802

Daniel R. Wichmer

City of Springfield

840 Boonville

Springfield, MO 65802

/s/ John W. Housley

Attorney for Appellee Gail Ann Campbell

18

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

1. This Brief complies with the Type-Volume limitation of

Fed.R.App.Pro. 32(a)(7)(B) because this Brief contains 3,700 words, excluding the

parts of the Brief exempted by Fed.R.App.Pro.32(a)(7)(B)(iii).

2. This Brief complies with the typeface requirements of Fed.R.App.Pro.

32(a)(5) and the type style requirements of Fed.R.App.Pro. 32(a)(6) because this

Brief has been prepared in a proportionally spaced typeface using MicroSoft Office

Word 2003 and Times New Roman 14 pt. font.

Respectfully submitted,

LOWTHER JOHNSON

Attorneys at Law, LLC

BY: /s/ John W. Housley

John W. Housley

Missouri Bar Number 28708

901 St. Louis Street, 20th Floor

Springfield, MO 65806

Telephone: 417-866-7777

Facsimile: 417-866-1752

Attorneys for Appellee

Gail Ann Campbell

 

 

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