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On the last court day of 2011, a Mandamus in the US Tenth Circuit Court of Appeals was filed related to this Kansas District Court action. The mandamus link is In Re Landrith, Case No. 11-3388



In the United States District Court

for the District of Kansas

at Kansas City, Kansas 

BRET D. LANDRITH                                                                         )

Plaintiff                                                                                                 ) Case No. 11-cv-02465-KHV -GLR

                                                                                                                )

vs.                                                                                                            )

                                                                                                                )

THE HONORABLE JOHN C. GARIGLIETTI                                )

CHIEF JUDGE OF THE ELEVENTH JUDICIAL DIST.               )

CRAWFORD COUNTY STATE OF KANSAS                               )

(In his official capacity)                                                                     )

                                                                                                               )

CAROL G. GREEN                                                                            )

CLERK OF THE APPELLATE COURTS,                                     )

STATE OF KANSAS                                                                         )        JURY REQUESTED

(In her official capacity)                                                                   )

Defendants                                                                                         )

 

PLAINTIFF’S COMPLAINT FOR INJUNCTIVE

RELIEF UNDER THE FOURTEENTH AMENDMENT

 

Comes now the plaintiff, Bret D. Landrith, appearing pro se and makes the following complaint for prospective injunctive relief and no money damages or fees under the Fourteenth Amendment of the United States Constitution to restrain the defendants’ ministerial and executive conduct in violation of the plaintiff’s Due Process rights protected under the First Amendment and right to Equal Protection applicable to judicial branch officials of the State of Kansas.

I. JURISDICTION

 

1. This court has jurisdiction over the parties, all residents of the State of Kansas under the Fourteenth Amendment to the United States Constitution which incorporates the Supremacy Clause, the First Amendment, the right to Equal Protection and the Due Process Clause in governing the conduct complained of.

2. The plaintiff does not pursue a claim against the defendant HON. JOHN C. GARIGLIETTI under 42 USC § 1983.

II. RELATED ACTIONS

 

3. The plaintiff on August 16, 2011 filed a concurrent jurisdiction mandamus action in the State of Kansas Court of Appeals seeking relief under Art. 3, § 3 of the Kansas Constitution, K.S.A. 60-801 and K.S.A. 60-802 in the form of an order to require the defendant HON. JOHN C. GARIGLIETTI to obtain in personam jurisdiction over the plaintiff for any judgment of monetary payments or child support and to provide notice of any hearings and an opportunity to be heard on custody decisions regarding his remaining minor children the action is stayed by Assistant Supreme Court Clerk Allison Schneider’s refusal to docket the original action at the instruction and direction of the defendant CAROL G. GREEN.

         4. The plaintiff had primary custody awarded to his ex wife and visitation of them restrained while State of Kansas Judicial Branch officials were involved in retaliating against the plaintiff for his First Amendment and 42 USC § 1981 protected speech as an attorney advocating State of Kansas Judicial Branch officials involvement in a for profit industry to take infants and adolescents through kidnapping accomplished by extrinsic fraud, deception and extortion from Kansas parents in violation of 18 U.S.C. § 242 under color of law as a way to maximize federal funds from false claims in violation of in violation of the False Claims Act, 31 U.S.C. § 3729, et seq., through bad faith state child protective services actions violating 42 U.S.C. § 671 from adoption and foster care contractors.

            5. The two cases related to the obtainment of custody over the plaintiff’s children under color of law are In The Matter of the Marriage of Donna Elizabeth Landrith and Bret David Landrith, Crawford County District Court Case No. CR03DM00296P presided over by the defendant HON. JOHN C. GARIGLIETTI never obtained in personam jurisdiction over the petitioner and In the Marriage of Bret and Donna Landrith, Shawnee County Case No. 01D001961 presided over by Honorable Jean M. Schmidt where the plaintiff’s ex wife’s attorney Jennifer Brunetti voluntarily submitted to jurisdiction incontrovertibly prejudiced the plaintiff’s motion to reopen meeting the requirements for a divorce petition under Kansas law by telephoning the Honorable Jean M. Schmidt ex parte the afternoon before the hearing which resulted in the hearing being canceled and the divorce action being dismissed without the knowledge of the plaintiff.

6. The plaintiff was disbarred by the proceeding In the Matter of BRET D. LANDRITH, Case No. 94,333 (Kan. 2005) by State of Kansas Judicial Branch officials for bringing the racial discrimination Civil Rights claims of James L. Bolden, Jr., an African American to federal court[1] and for the pro bono representation of Bolden’s witness David M. Price in an appeal of a parental rights termination case where the Kansas SRS deprived the natural father of access to interstate compact against child trafficking documents used to place the American Indian child in an adoption out of state prior to the termination of parental rights.

7. The plaintiff was also disbarred by State of Kansas Judicial Branch officials for raising the Indian Child Welfare Act which prohibited the taking and placement of the child without notice to the natural father[2].

8. The disbarment proceeding facially in violation of 18 U.S.C. § 245 (b)(5), the Fourteenth Amendment and 42 USC § 1981 imposes a prior restraint of speech against the plaintiff for having sought redress in federal courts to enjoin the State of Kansas Judicial Branch official Stanton Hazlett from prosecuting the plaintiff for advocacy and representation of James L. Bolden, Jr., an African American and for the pro bono representation of Bolden’s witness David M. Price and David M. Price’s American Indian son on federal civil rights racial discrimination causes of action.

9. The plaintiff sought redress in Landrith v. Don Jordan Secretary of SRS et al, Shawnee County District Court Case No. 10C1436 for continuing conduct after the disbarment and from new violations under color of state law to deprive the plaintiff of his federal statutory and constitutional rights in violation of 42 USC §1983 including his right to earn a living and his statutory right to Food Stamps as part of an ongoing conspiracy to obstruct justice under 42 USC §1983.

         10. The plaintiff was forced to seek redress in state court in Landrith v. Don Jordan Secretary of SRS et al, Shawnee County District Court Case No. 10C1436  for the violation of the plaintiff’s federal civil rights to Due Process and Equal Protection Under the Law secured by the United States Constitution or by Federal law and guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States against conduct to deprive the plaintiff of property and due course of justice in violation of 42 U.S.C. sec. 1981, 42 U.S.C. sec. 1985 (3) and 42 U.S.C. sec. 1983 because the plaintiff is seeking to be readmitted to the practice of law and the disbarment’s facial prior restraint of the plaintiff’s First Amendment rights of advocacy and redress punishes the plaintiff for his Sixth Amendment guaranteed right to seek redress in federal court.

11. All claims and parties have not been dismissed from Landrith v. Don Jordan Secretary of SRS et al, Shawnee County District Court Case No. 10C1436, however the plaintiff had good cause to seek to appeal the separate dismissals of all claims against the private defendants Young Williams PC and Brian Frost. The Assistant Supreme Court Clerk Allison Schneider’s refused to docket the two appeals at the instruction and direction of the defendant CAROL G. GREEN and no case numbers have been assigned.

III. PARTIES

12. The plaintiff is a citizen of the State of Kansas and resides at 5308 SW Tenth Street, Topeka, KS 66604.

13. The defendant Honorable John C. Gariglietti, is Chief Judge of the Eleventh Judicial District,

And his office is in the Crawford County Judicial Center 602 N Locust Pittsburg, KS 66762.

14. The defendant CAROL G. GREEN is Clerk of the Supreme Court of the State of Kansas and her office is located in the Kansas Judicial Center.

IV. STATEMENT OF FACTS

15. The plaintiff hereby incorporates the above stated facts and makes the following averments:

The defendant HONORABLE JOHN C. GARIGLIETTI is presiding over In The Matter of the Marriage of Donna Elizabeth Landrith and Bret David Landrith, Crawford County District Court Case No. CR03DM00296P where ex parte hearings determined the custody of children of the marriage and caused the matter case or controversy in an earlier Shawnee County District Court divorce to be dismissed in comity for a later Crawford County District Court action that never obtained in personam jurisdiction over the petitioner.

            1. Violation of Due Process and Equal Protection

16. The plaintiff was never served process under the requirements of K.S.A. 60-203, K.S.A. 60-308(d) and first came under the jurisdiction of Crawford County District Court Case No. CR03DM00296P through sheriff’s service of a show cause order on child support on 8/26/2010.

17. The plaintiff Bret D. Landrith as respondent to the HONORABLE JOHN C. GARIGLIETTI’s Show Cause Order raised the affirmative defenses of void service of process in the divorce and the lack of in personam jurisdiction which resulted in the Secretary of the Social and Rehabilitation Services and their law firm Young Williams PC to voluntarily dismiss their show cause proceeding.

18. An intervening order of the Kansas Court of Appeals court in Porter v. Bank (Kan. App., 2011) brought to the attention of the court and the parties in a formal notice, reaffirmed authorities cited by the p   laintiff BRET D. LANDRITH that purported registered mail service out of state at a business address instead of the plaintiff’s in state residence made the defendant HONORABLE JOHN C. GARIGLIETTI monetary judgments void ab initio.

19. The HONORABLE JOHN C. GARIGLIETTI stated he would rule on the parties’ briefs at the first hearing on the plaintiff’s motion for relief from judgment, then failed to do so, and when the plaintiff BRET D. LANDRITH contacted the defendant’s clerk to schedule a second hearing, she stated the defendant the HONORABLE JOHN C. GARIGLIETTI had instructed her not to schedule a hearing on the relief from judgment.

20. A hearing was finally scheduled on the motion for relief from judgment and an unopposed motion for transcript and set to take place on Friday, August 12, 2011 at 10:00 am, but unforeseeably to the plaintiff, the defendant HONORABLE JOHN C. GARIGLIETTI was approximately twenty minutes late for the hearing while counsel for the plaintiff’s ex wife was also out of the courtroom.

2. No Relief At Law

21. The defendant HONORABLE JOHN C. GARIGLIETTI determined on August 12, 2011 there was no relief at law for a void ab initio judgment because too much time had passed from the time the divorce judgment was issued in 2004.

22. Later the plaintiff learned his seventeen year old daughter was seeking to reside with the plaintiff and attend her Senior year of high school away from Pittsburg, Kansas and that the plaintiff’s ex wife was relying on her counsel to determine with the court that the daughter would not be allowed to change her residential custody during this time, but no notice of a hearing was given to the plaintiff BRET D. LANDRITH and neither the court or opposing counsel gave notice of any proceeding in chambers regarding his youngest daughter before the scheduled hearing.

3. Duty

23. The defendant HONORABLE JOHN C. GARIGLIETTI has clearly established ministerial and executive duties to hear motions submitted to his court, and duties under the constitution of the United States to provide both parties to a proceeding a fair opportunity to be heard without making determinations ex parte and to exercise discipline over the parties for misrepresentations to the court that materially injured the federally protected rights of parties before it, and no relief at law exists when proceedings and rights are without any level of Due Process, determined in the absence of, and without the knowledge of the party effected.

4. Imminent Danger of Future Violations

24. The plaintiff is in imminent danger of the loss of parenting opportunities in violation of the plaintiff’s Fourteenth Amendment right to parent his children as a punishment for protected advocacy on behalf of racial minorities where racial animus was a motivating factor by the civil rights conspiracy of some State of Kansas Judicial Branch officials and resulting from ex parte obtained orders before the defendant HONORABLE JOHN C. GARIGLIETTI and his predecessor on the matter case or controversy of the divorce, Shawnee County District judge, Honorable Jean M. Schmidt.

5. Relief is Not Adverse to Public Policy

25. The defendant HONORABLE JOHN C. GARIGLIETTI’s complained is needlessly subjecting Bob Corkins SRS General Counsel and Rob Siedlecki SRS Secretary to prospective injunctive relief liability under 42 USC § 1983 where on April 19, 2011, Honorable Judge Larry A. Hendricks in Landrith v. Don Jordan Secretary of SRS et al, Shawnee County District Court Case No. 10C1436 determined that the plaintiff continues to be in jeopardy of an action brought to collect child support on the Crawford County District Court Case No. CR03DM00296P in rem jurisdiction order.

6. Defendant CAROL G. GREEN’s Conduct

26. The defendant CAROL G. GREEN has in all three actions brought to the Kansas Court of Appeals by the plaintiff in 2011 directed that no case number be assigned and ministerially in her executive capacity prevented Due Process and Equal Protection from being afforded the plaintiff in his appellate court actions, bypassing a judge hearing on two appeals and an original action for mandamus.

27. The defendant CAROL G. GREEN’s no process denial of Due Process is effective in preventing a case number or file from appearing on the Kansas appellate courts’ records and excluding evidence of continuing misconduct in trial courts from being discovered by law enforcement agencies seeking access to documentation related to the State of Kansas’ pattern and practice of 18 U.S.C. § 242 color of law of law violations against minorities and their advocates and from the investigation of False Claims Act, 31 U.S.C. § 3729, et seq., violations through extrinsic fraud in Kansas courtrooms to take children from natural parents.

28. In 2005, the defendant CAROL G. GREEN received knowledge that Kansas trial courts were withholding records required to docket adoption appeals and to seek US Supreme Court review.

29. The plaintiff was unable to obtain records from Shawnee County Court for both James L. Bolden’s appeal of a demolition case and for his witness David M. Price’s appeal of parental rights termination.

30. The plaintiff was disbarred in part because of Assistant Supreme Court Clerk Allison Schneider’s false testimony under oath in the disciplinary proceeding that she did not refuse to docket James L. Bolden’s appeal when the plaintiff elected to do so after being informed by her of the deficiency and electing to file the docketing statement anyway because he had denied some of the required trial court documents by Shawnee District Court after driving up from Pittsburg, Kansas to get them. See In The Matter of Bret D. Landrith Attorney Disciplinary Proceeding Hearing transcript of Assistant Supreme Court Clerk Allison Schneider.

31. The disciplinary administrator Stanton Hazlett also prosecuted the plaintiff because he sought the interstate compact documents used by the SRS to prevent interstate child trafficking through mandamus even though the State of Kansas Supreme Court had ruled in Nunn v. Morrison, 608 P.2d 1359, 227 Kan. 730 (Kan., 1980)  that there was a nondiscretionary duty of the SRS to provide documents used to terminate parental rights and that mandamus was the correct way to obtain them when they were denied. See exhibit 1 transcript of Deputy Supreme Court Clerk Jason Oldham Deposition.

32. The plaintiff BRET D. LANDRITH lives in fear that he could be arrested and jailed for contempt on a judgment he clearly was not under the jurisdiction of for lack of valid service of process and from extrinsic fraud to procure the prejudiced dismissal of the Shawnee County Motion to Reopen the Divorce in In the Marriage of Bret and Donna Landrith, Shawnee County Case No. 01D001961 which met the requirements for a divorce petition and which both parties voluntarily submitted to jurisdiction in through the ex parte contact between the petitioner’s ex wife’s attorney Jennifer Brunetti and the Honorable Jean M. Schmidt the afternoon before the hearing. See exhibits 2 thru 5 on the second page of each letter.

         33. The plaintiff was prevented by the defendant HONORABLE JOHN C. GARIGLIETTI from submitting evidence of this fear to the trial court of four letters addressed to the Crawford and Shawnee County District Attorneys, the Secretary of the SRS and The Attorney General of Kansas (see exhibits 2 thru 5) which exempt the petitioner under the doctrine of acquiescence exception when the threat of contempt exists in the garnishee ( stated in Haberer v. Newman, 219 Kan. 562, 568 (Kan. 1976)) from the defendant HONORABLE JOHN C. GARIGLIETTI’s judgment under.

         34. The plaintiff’s former client David M. Price was jailed for contempt in a prearranged hearing on a warrant submitted to the State of Kansas Supreme Court by Attorney General Six that misrepresented the court’s jurisdiction over Price during removal to federal court and Price’s timely appeal of US District Court Judge Hon. Sam Crow’s remand, where it is clearly established under Tenth Circuit Court controlling authority Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (C.A.10 (Okla.), 1998)  that removal jurisdiction was appropriate when enforcement of a state supreme court order threatened the Kiowa Indian tribe’s right to sell cigarettes, even though the action had been earlier remanded and it was also clearly established that the state court never regained jurisdiction during the pendency of the appeal, this heightens the plaintiff’s fear of being falsely arrested for contempt.

         35. The Kansas Attorney General Steve Six and Kansas Appeals Court Judge Hon. Lee A. Johnson were both responsible for knowing that it is also clearly established that jurisdiction over a case passes from the district court to the court of appeals immediately and automatically upon the filing of a notice of appeal. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985); Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3d § 3949.1 at 39-40 (1999).

         36. The Kansas Attorney General Steve Six and Kansas Appeals Court Judge Hon. Lee A. Johnson were both responsible for knowing that Any action taken in state court after a written notice of removal and before remand is of no force or effect. See Crawford v. Morris Trans.,Inc., 990 So. 2d 162, 169 (Miss. 2008).

         37. The Kansas Attorney General Steve Six and Kansas Appeals Court Judge Hon. Lee A. Johnson were both responsible for knowing that Pursuant to § 1446, “it has been uniformly held that the state court loses all jurisdiction to proceed immediately upon the filing of the petition in the federal court and a copy in the state court.” Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1239(9th Cir. 1994); Moore v. Interstate Fire Insurance, 717 F.Supp 1193 (S.D. Miss.1989); South Carolina v. Moore, 447 F.2d 1067, 1073 (4th Cir. 1971). “Any further proceedings in the state court in the removed action, unless and until thecase is remanded, would be a nullity. 1A Moore’s Federal Practice § 0.168[3-8-4]. See also, Caldwell v. Montgomery Ward and Co., 207 F.Supp. 161 (S.D.Texas 1962).

         38. Hon. Lee A. Johnson was the same judge that repeatedly issued orders denying the plaintiff’s motion for access to Price’s parental rights trial court and adoption records in In the Matter of Baby C, Kansas State Court of Appeals Case No. 03 90035 A, Baby C was taken through fraud on the SRS and the Shawnee District Court and trafficked by Kansas attorney Austin K. Vincent to a couple in the State of Colorado.

         39. The plaintiff’s fear of false arrest for contempt on judgments where no in personam jurisdiction exists is heightened because the Kansas Appellate Courts demonstrated that United States constitutionally protected fundamental liberty interests of the plaintiff’s former client could not be vindicated before defendant CAROL G. GREEN’s courts through appeal and the plaintiff would be irreparably injured.

V. CLAIM FOR RELIEF

         The plaintiff reasserts the above averments of facts and makes the following claims for prospective injunctive relief against the defendants and does not assert any monetary damages or demand fees:

FOURTEENTH AMENDMENT

HONORABLE JOHN C. GARIGLIETTI, SUPREME COURT CLERK CAROL GREEN

 

         The defendants are violating the plaintiff’s interest and property interests protected under the Fourteenth Amendment of the Constitution of the United States.

         In support of this claim the plaintiff reasserts the above averments of facts and states:

         HON. JOHN C. GARIGLIETTI is denying the plaintiff’s right to parent his child without a hearing where the plaintiff has notice and an opportunity to respond.

         The lack of a hearing is no process.

         HON. JOHN C. GARIGLIETTI is denying the plaintiff’s right to Due Process and Equal Protection by not requiring parties seeking to enforce monetary judgments to respond to the plaintiff’s affirmative defense and proffer of evidence that in personam jurisdiction was not obtained by his court over the plaintiff for a divorce decree.

         State of Kansas Supreme Court Clerk CAROL G. GREEN is denying the plaintiff’s right to Due Process and Equal Protection by not docketing or assigning case numbers to appeals and original actions submitted to her office by the plaintiff.

         The lack of a hearing by an appeals court judge or a written determination that the filing will not be accepted is no process and cuts off the plaintiff’s right to judicial review including US Supreme Court review of deprivations of federal rights by State of Kansas Judicial branch officials through a writ of certiorari.

         The lack of a case number or record of the plaintiff’s submission of appeals and original actions prevents the plaintiff from enjoying Equal Protection under the law that results from federal law enforcement officials being able to discover evidence of civil rights criminal statute violations by State of Kansas Judicial branch officials that would have protected the plaintiff from foreseeable deprivations of his federal rights.

VI. PRAYER FOR RELIEF

         The plaintiff respectfully requests the court grant prospective injunctive relief to restrain the defendants from violating his Fourteenth Amendment protected rights.

                                                                        Respectfully submitted,

 

S/ Bret D. Landrith

Bret D. Landrith

Plaintiff

appearing Pro se

 

Exhibit 1. Transcript of Deputy Supreme Court Clerk Jason Oldham Deposition

Exhibit 2. Letter to Crawford County District Attorney Guiterrez

Exhibit 3. Letter to Shawnee County District Attorney Hecht

Exhibit 4. Letter to Secretary of SRS

Exhibit 5. Letter to Kansas Attorney General Phil Kline

Exhibit 6. 18 U.S.C. § 242

 

Exhibit 7. 31 U.S.C. § 3729

Exhibit 8. 42 U.S.C. § 671

Exhibit 9. 18 U.S.C. § 245

 

 

CERTIFICATE OF SERVICE

 

I hereby certify I have provided on August 17, 2011 a true copy of the above to the respondent and attorneys in the underlying action via US Mail First Class postage pre-paid as indicated:

 

Honorable John C. Gariglietti, Chief Judge of the Eleventh Judicial District,

Crawford County Judicial Center 602 N Locust Pittsburg, KS 66762

Respondent

 

Lori A. Flemming #20315, Wilbert & Towner. PA, 506 North Pine, Pittsburg, KS 66762

 

(Petitioner Donna Landrith’s current attorney in Crawford County District Court Case No. CR03DM00296P)

 

Jennifer Brunetti, Attorney for the Petitioner 214 E McKay St Frontenac, KS 66763

 

(Petitioner Donna Landrith’s current attorney in Crawford County District Court Case No. CR03DM00296P and In the Marriage of Bret and Donna Landrith, Shawnee County Case No. 01D001961)

 

Brandi L. Ridgeway Staff Attorney, Young Williams, Child Support Services, 215 E. Maple, Columbus, KS 66725

 

(Petitioner Donna Landrith’s prior attorney in Crawford County District Court Case No. CR03DM00296P)

 

John Gutierrez, Staff Attorney, Young Williams, Child Support Services

215 E. Maple, Columbus, KS 66725

 

(Petitioner Donna Landrith’s prior attorney in Crawford County District Court Case No. CR03DM00296P)

 

 

 

 

S/ Bret D. Landrith

Bret D. Landrith

Plaintiff

appearing Pro se

Apartment 209,
5308 SW Tenth St.
Topeka, KS 66604
Cell 913-951-1715
bret@bretlandrith.com

 

 

 

 



[1] The Tenth Circuit Court of Appeals Decision reinvigorated 42 USC Sec. 1981 as a cause of action against government discrimination and real estate takings in Bolden v. City of Topeka. 441 F.3d 1129 (10th Cir. 2006). The decision has been favorably cited by the Sixth Circuit in Coles v. Granville Case No. 05-3342 (6th Cir. May 22, 2006).

[2] The Kansas Supreme Court later adopted the plaintiff’s argument that the Indian Child Welfare Act applied to American Indians living off the reservation in its decision on In The Matter Of A.J.S., Kansas Supreme Court Case No. 99,130 (2009).

The Kansas Supreme Court has also adopted the plaintiff’s argument that misrepresentations by a natural mother to conceal the existence of a child from a father could not disqualify a father’s reasonable efforts to parent his child. In The Matter Of The Adoption Of Baby Girl P. Case No. No. 102, 287 at 13-16 (Kan., Oct. 2010).






Subpages (1): In Re Landrith 11-3388