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In Re Landrith 11-3388

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

___________

 

No. 11-           

(Kansas District Court Case No. 11-cv-02465-KHV –GLR)

___________

 

In Re Bret D. Landrith,                                         ) 

                                                                                  ) On Petition for Writ of Mandamus 

                                                                                  ) to the United States District Court

                                                                                  ) for the District of Kansas

            Petitioner,                                                   )    

___________

 

PETITION FOR WRIT OF MANDAMUS

PURSUANT TO 28 U.S.C. § 1361

 

            Comes now the petitioner Bret D. Landrith appearing pro se and makes this

Petition for Writ of Mandamus to the United States District Court for the District of Kansas from the action Landrith v. Hon Judge John C. Gariglietti case  no. 11-cv-02465-KHV -GLR.

PRELIMINARY STATEMENT

The petitioner has been unable to have his motion resolving a dispute over the federal question jurisdiction of the United States District Court for the District of Kansas heard or ruled on. As a consequence, the defendants have declined to answer or otherwise defend against the petitioner’s complaint in a form permissible under the Federal Rules of Civil Procedure, despite the defendants having been served process and the complaint by the US Marshal. The delay in injunctive relief sought by petitioner’s complaint before the District of Kansas furthers the conduct of the defendants and completes the goal of depriving the plaintiff of constitutional rights the injunction would have protected.

 

I. STATEMENT OF THE ISSUE

             Whether a federal court can unreasonably delay or decline to rule on motions concerning the existence of or lack of jurisdiction over the parties before it and whether doing so usurps authority by negating or nullifying clearly established law that state officials are subject to prospective injunctive relief under the Fourteenth Amendment.

II. STATEMENT OF THE FACTS

1. The petitioner includes as Exhibit 1, the print out of the online appearance docket for the Kansas District Court to meet the requirements of Fed. R. App. P. Rule 21 (C) where the trial judge, Hon. Chief Judge Kathryn H. Vratil has issued no order.

2. The petitioner has been unable to have his affirmative defense of invalid service of process rendering his divorce in rem and not in personam heard when timely raised in his State of Kansas divorce action in response to valid service on a show cause action for non payment of child support filed against him by the Secretary of the Kansas Social and Rehabilitation Services.

3. The Secretary of the Kansas Social and Rehabilitation Services voluntarily dismissed the show cause action in the divorce after the plaintiff brought a concurrent civil rights action for Abuse of Process under 42 USC § 1983 against the Secretary in a State of Kansas Court.

4. The plaintiff immediately filed for relief from judgment due to invalid service of process in the divorce action, but the defendant Hon. Judge John C. Gariglietti made false statements regarding a hearing on the motion resulting in it repeatedly being delayed in aid of the Kansas SRS in the concurrent action.

5. The youngest child of the marriage, in her 17th year sought to move to the petitioner’s custody and attend school in Olathe or Topeka instead of Pittsburg, Kansas where she was having problems.

6. The defendant Hon. Judge John C. Gariglietti continued the ex parte determinations of custody over the petitioner ( divorce respondent’s) children, even when the petitioner  ( divorce respondent) was there as scheduled in his courtroom, the petitioner was unaware his ex wife’s attorney was resolving the custody of his 17 year old daughter while the attorney and the judge were out of the courtroom.

7. The petitioner was prevented at the direction of the defendant Carol G. Green, Clerk of the Appellate Courts Carol from filing an appeal of the dismissal of two parties from the State of Kansas Civil Rights case for good cause under the collateral order doctrine recognized by the United States Supreme Court and the Kansas Supreme Court as a "very narrow exception" to the final order requirement and from having filings accepted under in forma pauperis to address the defendant Hon. Judge John C. Gariglietti failing to rule on the lack of in personam jurisdiction  for the divorce order.

8. The petitioner was forced to file in federal court a complaint under the Fourteenth Amendment and 28 U.S.C. § 1331 for prospective injunctive relief and no money damages on 08/17/2011.

9.  The petitioner had been afraid to file previously for relief in federal court because his disbarment is expressly for taking his client James L. Bolden’s racial discrimination claims to federal court and the State of Kansas Supreme Court has not withdrawn its sanction and has directly or through its judicial branch agencies taken negative action against the attorneys Keen A. Umbehr, Donna L. Huffman and others expressly for their advocacy of federally protected civil rights under federal law.

10. The Kansas District Court delayed recognizing the petitioner’s in forma pauperis status where employment for the preceding 4 years was left blank (the complaint and supporting pleadings documents State of  Kansas officials including State of Kansas judicial branch agency officials interfering with and preventing the petitioner from working even in non law related jobs as a resident of other states in retaliation for the petitioner’s advocacy on behalf of the African American James L. Bolden and the court recognized American Indian infant son of David M. Price in support of their race based civil rights discrimination claims.

11. The petitioner on 08/26/2011, 08/30/2011, 09/14/2011 and 10/07/2011  filed supplemental pleadings requesting US Marshal service as an  in forma pauperis litigant and supporting his poverty status and the lack of frivolousness of his action, not knowing that the court was not approving his in forma pauperis application.

12. The Kansas District Court Magistrate finally accepted the petitioner’s his in forma pauperis status and directed the US Marshall to serve process on the defendants on 10/18/2011.

13. It is not the practice of the Kansas District Court to docket a § 1915 review or its result on the Pacer system.

14. The defendants on 10/21/2011 entered a non contested appearance through their counsel via a Motion for  § 1915 review stating reasons the plaintiff’s complaint should be dismissed.

15. The defendants have not answered the complaint or filed a recognized Rule 12b Motion under the Federal Rules of Civil Procedure in answer to the complaint.

16. The petitioner on 10/21/2011 filed a Motion to Strike the defendants’ request for a second § 1915 review and the defendants’ answered opposing the Motion to Strike.

17. The defendants then filed a Motion to Stay all proceedings on 11/17/2011  with no citation to authority supporting a stay under the Federal Rules of Civil Procedure.

18. When there was still no ruling on the Motion to Strike, the petitioner attempted to schedule a hearing on the motion via an email to Hon. Chief Judge Kathryn H. Vratil’s chambers on December 20, 2011. See Exhibit 2, Email to Hon. Judge Vratil and cc’d to Assistant Attorney General Steve Phillips.

19. There was no response from Hon. Chief Judge Kathryn H. Vratil or the court.

20. The petitioner then contacted Assistant Attorney General Steve Phillips on December 27, 2011, giving notice to Attorney General Derek Schmidt that the continuation of their misconduct through to the evening of December 30th would necessitate the petitioner filing a Mandamus action in the Tenth Circuit Court of Appeals and cautioning them that it was not in the interest of the State of Kansas to do so. See Exhibit 3, Email to Assistant Attorney General Steve Phillips.

21. Attorney General Derek Schmidt did not withdraw his filings or file an answer to the complaint or other motions permitted defendants under the Federal Rules of Civil Procedure by 5 pm December 30th.

22. The Attorney General of Kansas participated in taking a second child from the petitioner’s former client David M. Price, again through fraud on the State of Kansas court and all redress was prevented David M. Price by the similar practice of not ruling on motions before the court to aid in continuing the state’s unlawful custody and has been docketed on December 20, 2011 by the US Supreme Court as case no.  11-7952.

 

 

 

III. RELIEF SOUGHT

The petitioner seeks an order from this court compelling the United States District Court of Kansas to exercise its authority when it is its duty to do so and to make timely rulings on the motions by the parties.

IV. REASONS WHY THE WRIT SHOULD ISSUE

 

The petitioner seeks an order from this court compelling the United States District Court of Kansas to exercise its authority.

In Will v. United States, 389 U.S. 90 (1967) the Supreme Court observed:

"[T]he writ of mandamus has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."

 

            Will v. United States, Page 389 U. S. 95, id.

            The Supreme Court holds that mandamus is an appropriate remedy for "exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion." Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).

            A. The petitioner’s right to the writ is "clear and indisputable”

            It is clearly established under Tenth Circuit precedent that a tribunal abuses its discretion when it fails to exercise discretion. This court has applied the rule in less severe abuses such as an Oklahoma district court making a decision without providing reasons:

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). See also FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7th Cir.1990) ("A trial court may abuse its discretion by failing to exercise its discretion," citing cases in other contexts).”

 

ARW Exploration Corp. v. Aguirre, 45 F.3d 1455 (C.A.10 (Okla.), 1995).

This court in ARW Exploration equated the abuse of discretion of making an order without findings of fact or law with the abuse of not making a ruling at all: “A district court that does not exercise its discretion, or makes a decision without providing reasons, abuses that discretion”. ARW Exploration, 45 F.3d 1455, id.

            This court has determined a commissioner had abused their discretion by not addressing a motion:

Fisher v. Commissioner, 45 F.d. 396, 397 (10th Cir.1995) ("By failing to rule specifically on the request for waiver and by failing to offer any reasons for her decision, the Commissioner failed to demonstrate that she had exercised her discretion and thereby abused that discretion.”).”

 

Taylor v. C.I.R., 108 F.3d 1388 (C.A.10, 1993).

1. Courts have a duty to exercise discretion enforceable by mandamus

Other circuit courts of appeal have had occasion to review district courts that actually failed to exercise discretion by not making a ruling:

“Clair's contention, however, was not that his habeas counsel was constitutionally ineffective, but rather that the district court failed properly to exercise its discretion with respect to his request for his statutory right with regard to a change of counsel. As with other matters concerning the district court's exercise of its discretion, we must reverse the district court on a showing that it abused that discretion. Here, by failing to exercise its discretion at all, it abused it.”

 

Clair v. Ayers at 6-7 (9th Cir., 2010).

The Seventh Circuit has frequently applied this rule where a trial court failed to make a ruling:

“A district court abuses its discretion if it relies upon inaccurate information in exercising its discretion, or fails to exercise any discretion at all. United States v. Nesbitt, 852 F.2d 1502 (7th Cir.1988); United States v. Ford, 840 F.2d 460, 466 (7th Cir.1988)” [Emphasis added]

 

U.S. v. Threw, 861 F.2d 1046 (C.A.7 (Ill.), 1989).

            In LSLJ Partnership v. Frito-Lay, Inc the court listed several of it precedents finding abuse of discretion when no ruling was made:

“However, "[a] trial court may abuse its discretion by failing to exercise its discretion." FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7th Cir.1990); see also United States v. Threw, 861 F.2d 1046, 1049 (7th Cir.1988); Hernandez v. Cepeda, 860 F.2d 260, 266 (7th Cir.1988). Furthermore, the "abuse of discretion standard implies that the judge must actually exercise his discretion." United States v. U.S. Currency, In the Amount of $103,387.27, 863 F.2d 555, 561 (7th Cir.1988) (citing In re American Reserve Corp., 841 F.2d 159, 162 (7th Cir.1987)). In this case, the district court's erroneous denial of jurisdiction resulted in an abuse of its discretion when it failed to exercise any discretion in not reaching the merits of the plaintiff's Rule 60(b) motion.”

 

LSLJ Partnership v. Frito-Lay, Inc., 920 F.2d 476 (C.A.7 (Ill.), 1991).

In Chudasama v. Mazda Motor Corporation, the Eleventh Circuit Court stated:

We recognize that district courts enjoy broad discretion in deciding how best to manage the cases before them. This discretion is not unfettered, however. When a litigant's rights are materially prejudiced by the district court's mismanagement of a case, we must redress the abuse of discretion. Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion. See, e.g., In re School Asbestos Litig., 977 F.2d 764, 792-93 (3d Cir. 1992) (granting writ of mandamus as remedy for district court's "arbitrar[y] refus[al] to rule on a summary judgment motion");

Chudasama v. Mazda Motor Corporation, 123 F.3d 1353 (11th Cir. 1997),

Various state courts have determined that mandamus is warranted where judges refused to rule on motions or exercise jurisdiction.

In Florida, Mandamus is recognized as a common law writ used to direct an official to perform his official duties. Where the judge refuses to rule on a motion challenging personal jurisdiction, it is appropriate to issue the writ.“ Berens v.Cobb, 539 So.2d 24, 25 (Fla.App. 2 Dist. 1989)(citing State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200,150 So. 508 (1933)). 

In Texas, Mandamus may issue to compel a trial court to rule on a motion which has been pending before the court for a reasonable period of time. See In re Hearn, 137 S.W.3d 681, 685 (Tex.App.-San Antonio 2004, orig. proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex.App.-Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding);             Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225 S.W.3d 676, 679 (Tex.App.-El Paso 2006, orig. proceeding).

2. Subject Matter Jurisdiction Under 28 U.S.C. § 1331

The underlying complaint for injunctive relief is within the clearly established jurisdiction of the District Court to proceed upon under 28 U.S.C. § 1331.

The Tenth Circuit follows the United States Supreme Court’s determination in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) that federal courts have jurisdiction to hear prospective injunctive relief actions to protect against violations of federal rights directly under the constitution in the absence of self activating statutory remedies:

“[T]his Court has sustained the jurisdiction of the district courts in suits brought to recover damages for depriving a citizen of the right to vote in violation of the Constitution.And it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. Moreover, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” [Emphasis added, foot notes omitted]

 

Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

            The Tenth Circuit in reviewing the District of Kansas case Ediger v. Belcher determined this year that Bell v. Hood still controls this issue:

“1. See Bell v. Hood, 327 U.S. 678, 681-83 (1946)(federal court has jurisdiction to entertain complaint seeking recovery directly under the Constitution unless the claims "clearly appear[ ] to be immaterial and made solely for the purpose of obtaining jurisdiction" or are "wholly insubstantial and frivolous"); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-31 (10th Cir.2005)(federal district courts have jurisdiction over claims by federal prisoners seeking vindication of their constitutional rights under 28 U.S.C. § 1331 against federal officials).”

 

Ediger v. Belcher at fn 1 (D. Kan., 2011).

The Ediger court also cited a Tenth Circuit court decision Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (Fed. 10th Cir., 2005) establishing that claims in Equity for injunctive relief directly under the constitution were not frivolous and could be brought against government officials via 28 U.S.C. § 1331 federal question jurisdiction directly under the constitution:

Davis v. Gray, 16 Wall. 203, 83 U.S. 203, 220, 21 L.Ed. 447 (1872) ("A Circuit Court of the United States, in a proper case in equity, may enjoin a State officer from executing a State law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the complainant."); Ex Parte Young, 209 U.S. 123, 151-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (tracing the history of the doctrine holding that state officers "may be enjoined by a Federal court of equity" from enforcing unconstitutional statutes); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (recognizing the "jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution"); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (holding that the Fifth Amendment and § 1331 created a remedy for unconstitutional racial discrimination in the D.C. public school system). In his concurring opinion in Bivens, Justice Harlan cited "the presumed availability of federal equitable relief, if a proper showing can be made in terms of the ordinary principles governing equitable remedies" as a factor distinguishing equitable relief from money damages. Bivens, 403 U.S. at 400, 91 S.Ct. 1999.

Equity thus provides the basis for relief—the cause of action, so to speak—in appropriate cases within the court's jurisdiction.”[Emphasis added]

 

Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 at 1231-32 (Fed. 10th Cir., 2005).

No immunity exists for the defendants from the Fourteenth Amendment under Pulliam v. Allen, 466 U.S. 522 (1984) and the US Congress’s amendment of  42 U.S.C. § 1983 did not change how a federal court should analyze a claim brought under the Fourteenth Amendment expressly denying jurisdiction for redress under 42 U.S.C. § 1983. The Tenth Circuit has repeatedly held state judicial officials are liable for prospective injunctive relief in the wake of Pulliam v. Allen, 466 U.S. 522 (1984). See Martinez v. Winner, 771 F.2d 424 at437 (C.A.10 (Colo.), 1985); Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 at 267 (C.A.10 (Okla.), 1994); Fritz v. Hammons, 991 F.2d 805 (unpublished) (C.A.10 (Okla.), 1993); Hunt v. Bennett, 17 F.3d 1263 (C.A.10 (Colo.), 1994).

The petitioner’s prospective injunctive relief to obtain Due Process and a hearing to resolve the lack of in personam service of process in the defendant Hon. Judge John C. Gariglietti’s court is not estopped or even unusual:

“State and federal courts have not hesitated to find challenges to divorce decrees based on lack of jurisdiction subject to, and defeated by rules of estoppel where the challenging party was a participant in the challenged divorce. The leading case is Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948) where the Supreme Court wrote

‘[T]he requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.’

        Id. at p. 351-52, 68 S.Ct. at 1091.”

 

Foca-Rodi v. Foca-Rodi, 528 N.Y.S.2d 257, 139 Misc.2d 628 (N.Y.Sup., 1988).

 

3. No basis for rehearing the court’s Sec. 1915(d) determination

The court in Switzer v. Coan et al., 261 F.3d 985 (10th Cir., 2001) determined that a colorable claim against judicial officials state or federal is not easily denied and therefore not subject to Sec. 1915(d)  sua sponte frivolous dismissal:

“9. The U.S. Attorney also argues that plaintiff's allegations implicate judicial or quasi-judicial immunity shielding all or most of the defendants. Invocation of this defense raises a thorny legal question, as the complaint seeks equitable relief. The Supreme Court held in Pulliam v. Allen, 466 U.S. 522 (1984), that judicial immunity does not insulate state judges from claims for equitable relief under 42 U.S.C. 1983, and it is unsettled whether the corresponding immunity afforded federal judges in Bivens cases permits or precludes such claims. Compare Mullis v. United States Bankr. Court for the Dist. of Nev., 828 F.2d 1385, 1394 (9th Cir. 1987) (distinguishing Pulliam and extending federal judicial immunity to preclude equitable Bivens claim) and Bolin v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000) (following Mullis, but noting issue "is a closer one than it would seem at first blush"), with Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989) (finding Mullis immunity analysis to be "of doubtful merit," though not deciding issue). We express no opinion on the issue and rely instead for our disposition on uncontroversial principles specifically barring the equitable relief sought here.”

 

Switzer v. Coan et al., 261 F.3d 985 at fn 9 (10th Cir., 2001).

The Kansas District Court was required to sua sponte review the plaintiff’s complaint for frivolousness or bad faith motive before directing service by US Marshal.

Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

        Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal to effect service pursuant to Fed.R.Civ.P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before service of process is made on the opposing parties").”

        The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(l) is identical to the legal standard used when ruling on 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B)).

There cannot be more than one motion to dismiss. Palermo, Federal Pretrial Practice: Basic Procedure & Strategy 2001 states at page 21; "Rules 12(g) and 12(h), read together, provide in general, there shall not be more than one Rule 12 motion to dismiss ....AlI defenses and grounds "then available" shall be asserted in the one motion; certain defenses shall be asserted in the Rule 12 motion, or in the initial responsive pleading (or amendment thereof) under threat of waiver."

The State of Kansas Attorney General Derek Schmidt is without authority under § 1915 to file a motion to initiate a § 1915 or to force a second § 1915   review where the statute expressly says the court must do so sua sponte.   

The State of Kansas Attorney General Derek Schmidt seeks to have the plaintiff held to an impermissibly high standard under Sec. 1915(d). Clearly the District Court court already evaluated and passed upon the plaintiff’s claims as statute required before US Marshal service was ordered.

The trial court cannot hear a motion outside of the Federal Rules of Civil Procedure to repudiate its own determination by the defendants through their agent Attorney General Derek Schmidt. Clearly the federal court is delaying a timely ruling on motions addressing its jurisdiction on the pretext of entertaining an invitaqtion to participate in the State of Kansas official’s discriminatory and bad faith treatment of the plaintiff through different standards than those permitted at law:

“[T]he barrier erected by Sec. 1915(d) is not unduly high. To avoid dismissal, Mr. Lemmons need not make out a perfect case. See Neitzke v. Williams, 490 U.S. 319, 326-29, 109 S.Ct. 1827, 1832-34, 104 L.Ed.2d 338 (1989) ("When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, ... dismissal on the basis of frivolousness is not [appropriate]."). It suffices for him to state claims that are rationally related to the existing law and the credible factual allegations. See id. at 328-29, 109 S.Ct. at 1833-34 (noting that speculative claims often implicate important questions of law and cannot therefore be deemed "frivolous"). Nothing in the record contradicts Mr. Lemmons's otherwise plausible account of the facts of this case. Hence, if Mr. Lemmons can set forth arguable legal grounds for relief, then his cause of action may not properly be dismissed as frivolous under Sec. 1915(d) "even if the legal basis underlying the claim ultimately proves incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991)” [Emphasis added]

 

Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 at 268 (C.A.10 (Okla.), 1994).

            In delaying rulings on the plaintiff’s motions resolving the jurisdictional questions before the court and in entertaining the State of Kansas Attorney General Derek Schmidt’s motions initiate a § 1915 or to force a second § 1915  review without authority under the Federal Rules of Civil Procedure for a party to file before filing a Rule 12b motion, the trial court is usurping authority she does not possess.

B. Adequate alternative remedies are absent

            The petitioner is unable to utilize appellate review where the trial court makes no order.

            Even if the trial court eventually makes an order after the plaintiff has lost his chance to parent the last child of the marriage while she is a minor or after the State of Kansas jails the petitioner for non payment of child support while still actively preventing the petitioner’s employment in Kansas and other states, the petitioner will be irreparably injured in violation of his constitutional rights.

            There is no other adequate remedy available.

CONCLUSION

            The petitioner respectfully requests that the Court of Appeals grant his

petition for a writ of mandamus and provide the much needed relief from

the irreparable harm of loss of his rights to enjoy the opportunity to parent his children and to enjoy Due Process in State of Kansas courts.

Respectfully submitted,

 

S/ Bret D. Landrith

Bret D. Landrith

Petitioner

appearing Pro se

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

 

 

CERTIFICATE OF SERVICE

I hereby certify I have provided on December 30, 2011 a true copy of the above to the Kansas District Court Judge and counsel of record in the underlying action via the court’s electronic filing system, by email and by US Mail.

 

Hon. Judge Vratil

Kansas District COurt

ksd_vraEl_chambers@ksd.uscourts.gov           

 

Stephen Phillips, KS Sup. Ct. No. 14130

Assistant Attorney General

120 SW 10th Avenue, 2nd Floor

Topeka, Kansas 66612-1597

Tel:            (785) 296-2215

Fax: (785) 291-3767

steve.phillips@ksag.org Attorney for

Honorable John C. Gariglietti,

Supreme Court Clerk Carol G. Green

Defendants

 

 

S/ Bret D. Landrith

Bret D. Landrith

Petitioner

appearing Pro se

 

Ċ
Bret Landrith,
Jan 10, 2012, 9:22 AM
Ċ
Bret Landrith,
Jan 10, 2012, 9:23 AM
Ċ
Bret Landrith,
Jan 10, 2012, 9:22 AM
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