000000000 Hazlett, Frost, Young Williams Appeal







STATEMENT OF THE NATURE OF THE CASE

 

            This is an appeal from a civil rights case alleging violations of federal constitutional and statutory rights privately enforceable under 42 USC § 1983. The petition and amended petition allege the appellant’s rights continued to be violated after he was disbarred as an attorney by members of a 42 USC § 1983 conspiracy or in the alternative a 42 USC § 1985 (2) and (3) conspiracy in interference of his right to enjoy the benefits of contracting to represent three minority persons, and in retaliation for his protected advocacy on behalf of the African American James L. Bolden, Bolden’s witness David M. Price of Cherokee Indian descent and Price’s infant son determined by the Shawnee District Court to be American Indian.

STATEMENT OF ISSUES

 

The appellant raises the following issues on appeal: Whether Counsel Described In a Petition As Participating in The Charged Conduct Is Disqualified For Conflict of Interest And As A Witness; Whether It Is premature To Grant Judgment on the Pleadings Before Discovery and The Close of Pleadings; Whether Conversion of a Motion Judgment on the Pleadings Without Providing Notice And Discovery Violates Due Process; Whether Imposition of a Heightened Pleading Standard For Claims Under 42 USC § 1983 Violates Kansas Notice Pleading; Whether Construing a Petition’s Averments of Fact Against Their Plain Meaning Can Be Used To Support Dismissal; Whether Standing Under 42 USC § 1983 For First Amendment Prohibited Retaliation Includes Injury From The Targeting of Intimate Associates; Whether Standing Under 42 USC § 1981 Includes Loss of Property Rights and Retaliation Against a White Attorney For His Representation of a Minority Citizen’s Colorable Claims of Race Based Discrimination; Whether Averments of a Defendants’ Violation of Rules or Statutes to Further A Conspiracy’s Identified Objectives Sufficiently Support An Allegation of Civil Rights Conspiracy At The Pleading Stage; and Whether A State Attorney Discipline Administrator Can Be Subjected to Prospective Injunctive Relief Under 42 USC § 1983 Against Continuing Violation of Federal Law.

STATEMENT OF FACTS

 

1.              The appellant provides the following neutral recitation of facts related to the issues on appeal, each fact is referenced to its location by page number and paragraph number where applicable in the record on appeal.

2.              The appellant and the appellees believed during the course of this litigation that the U.S. Supreme Court decision Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) placed a requirement for greater specificity in pleading 42 USC § 1983 and/or 42 USC § 1983 conspiracy and 42 USC § 1985 conspiracy claims than had previously existed under Federal Rule of Civil Procedure Rule 8 Notice Pleading.

Facts Related to Issue I

Whether Counsel Described In a Petition As Participating in The Charged Conduct Is Disqualified For Conflict of Interest And As A Witness

 

3.              The petition and amended petition describe FROST’s counsel participating in the conduct charged against FROST for his actions against the appellant’s intimate associate Huffman alleged to directly injure the appellant and alleged to have been committed in furtherance of the civil rights conspiracy (ROA, Vol. 1, p.32, ¶112, ¶113, p.33, ¶114, ¶117, ¶118, ¶121; p.35, ¶129, ¶130, ¶131, and the hearing held 4/06/2011 Vol. XV Pgs. 1-39)).

4.              FROST’s counsel is described as conspiring with CRAGE E. COLLINS to compromise Huffman’s representation (ROA, Vol. 1, p.33, ¶117) by COLLINS in defense of FROST’s case management billing claims to further RICO predicate acts under 18 U.S.C. Sec. 1962(d) against Huffman as a source of income for the civil rights conspiracy, and to further the civil rights conspiracy’s goal to cause Huffman to be sanctioned when she got licensed that had the foreseeable effect of violating the appellant’s civil rights (ROA, Vol. 1, p.33, ¶114).

5.              COLLINS as a knowledgeable co-conspirator is alleged to have stated that Huffman’s representation before the Board of Law Examiners was also compromised for a casino license near Wichita (ROA, Vol. 1, p.25, ¶58).

6.              COLLINS despite several extensions never answered the allegations in the first amended petition and defaulted on the appellant’s materially equivalent allegations in Kansas District Court in 2012. (ROA, Vol. I p. 1-15).

7.              In seeking disqualification, the appellant alleged FROST’s counsel had an unwaivable conflict of interest and members of the firm would be necessary witnesses. (ROA Vol. II Pgs. 87-95; Vol. III Pgs. 160-171; and the hearing held 4/06/2011 Vol. XV Pgs. 1-39).

8.              The appellant had Huffman testify at the disqualification hearing (ROA hearing held 4/06/2011 Vol. XV Pgs. 1-39).

9.              The trial judge declined to disqualify FROST’s counsel (ROA Vol. XV Pgs. 1-39).

Facts Related to Issue II

Whether It Is premature To Grant Judgment on the Pleadings Before Discovery and The Close of Pleadings

 

10.           FROST’s motion for judgment on the pleadings was granted before FROST answered the first amended petition and before any pretrial conference or discovery had taken place. (ROA, Vol. I p. 1-15).

11.           The appellant opposed FROST’s motion as a premature judgment on the pleadings closed (ROA Vol. V Pgs. 369-402; Vol. V Pgs. 443-445; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-69).

12.           FROST’s motion relied on a material controversy in fact over the jobs, reimbursement, and business expectancies alleged in the petition and first amended petition. (ROA Vol. V p. 348-368).

13.           The appellant opposed YOUNG WILLIAMS’ motion to dismiss as untimely and as a premature judgment on the pleadings. (ROA Vol. III p. 216-218, Vol. IV p. 314-317)

14.           The trial court granted YOUNG WILLIAMS judgment before YOUNG WILLIAMS answered the first amended petition and before any pretrial conference or discovery had taken place. (ROA Vol. XIII Pgs. 1-54).

Facts Related to Issue III

Whether Conversion of a Motion Judgment on the Pleadings Without Providing Notice And Discovery Violates Due Process

 

15.           The appellant introduced testimony of Huffman related to disqualification of FROST’s counsel (ROA Vol. XV Pgs. 1-69).

16.           The trial court denied a limiting order on the scope of testimony to prevent conversion of FROST’s motion for judgment on the pleadings into summary judgment by Huffman’s testimony (ROA Vol. XV Pgs. 6, 7, and 8).

17.           The appellant objected and preserved his objection stating he would need discovery if the motion for judgment on the pleadings was unintentionally converted into summary judgment by Huffman’s testimony (ROA Vol. XV Pg. 8). See Aplt Apdx 0001.

18.           The appellant did not question Huffman on the stand beyond the scope of disqualification of FROST’s counsel to prevent unintentional conversion into summary judgment (ROA Vol. XV Pgs. 6, 7, and 8).

19.           The trial court’s finding of facts in ruling on FROST’s motion for judgment on the pleadings expressly stated consideration of Huffman’s testimony (ROA Vol. XV Pgs. 63 and 64). ). See Aplt Apdx 0002.

20.           The appellant objected to the proposed journal entry for conversion into summary judgment (ROA Vol. VI p. 443-446).

Facts Related to Issue IV

Whether Imposition of a Heightened Pleading Standard For Claims Under 42 USC § 1983 Violates Kansas Notice Pleading

 

21.           The trial court made findings of law FROST’s and YOUNG WILLIAMS’ dismissals that something more than stating the elements of federal statutory civil rights claims with supporting averments of fact because of recent US Supreme Court decisions within the last six to eight months. (ROA Vol. XV Pgs. 1-69 and Vol. XIII Pgs. 1-54). See Aplt Apdx 0003

22.           The trial court at YOUNG WILLIAMS’ motion hearing and again at the final hearing before appeal that § 1983 Abuse of Process requires an additional element of a successful outcome in the underlying litigation that prevented finding the appellant’s abuse of process claim ( ROA Vol. XIII Pgs. 1-54, Vol. XIV Pgs. 1-57 ).

23.           The trial court at YOUNG WILLIAMS’ motion hearing expressly stated that Bloom v. FNU Arnold, et al., Kansas Appeals Case No. 103,352 (2010) does not provide the standard for § 1983 claims (ROA, Vol. XIII Pgs. 1-54).

Appellant’s allegations in his § 1983 based claims that FROST, YOUNG WILLIAMS, and HAZLETT  were state actors

 

24.           FROST is alleged to act with state officials to commit the charged conduct as a state actor in the petition (ROA, Vol. 1, p.18, ¶14; p.20, ¶26; p.32, ¶¶105, 106, 107, 111; p.33, ¶¶ 117; p.34, ¶ 127, p.36, ¶¶ 135,140; p.37, ¶¶ 141, 142, 143); and in the first amended petition (ROA, Vol. VI p.416, ¶ 26; p.428, ¶¶ 105, 106, 107, 111; p.429 ¶¶ 117, 118; p.431 ¶¶ 127, 129, 131; p.432 ¶ 135; p.433 ¶¶ 140, 141, 142, 143; p.434 ¶ 146; p.438 ¶ 176 ).

25.           YOUNG WILLIAMS is alleged to act with state officials to commit the charged conduct ; and in the first amended petition (ROA, Vol. VI p.423, ¶ 72; p.425, ¶¶ 87, 88, 89, 90-92  ; p.426, ¶¶ 93, 94, 95, 96; p.427, ¶¶ 98, 101, 103, p.431, ¶¶ 127, 128; p. 432, ¶¶131, 134; p.433, ¶141, 142, 143; p. 434, ¶146; p. 435, ¶153; p. 454, ¶155; p. 436, ¶158, 

26.           HAZLETT (and Gayle B. Larkin ) is alleged to be a state official a state actor in the petition (ROA, Vol. 1, p.2037, ¶28); HAZLETT (Gayle B. Larkin and Rex Sharp ) and alleged to be a state actor in the first amended petition (Hazlett ROA, Vol. VI p. 416, ¶28 ; Larkin, Vol. VI p. 416, ¶26; Sharp Vol. VI p. 439, ¶175).

Appellant’s allegations in his § 1983 based claims that FROST, and YOUNG WILLIAMS, had directly violated his U.S. constitutional and federal statutory rights and that he was in imminent danger of HAZLETT violating his U.S. constitutional and federal statutory rights and of violating the federal criminal civil rights statutes

 

27.           FROST is alleged to have directly violated the appellant’s U.S. constitutional and federal statutory rights in the petition (ROA, Constitutional property right to pursue a trade: Vol. 1, p.18 ¶14;  p.20, ¶26; , p.32, ¶107, p.32, ¶112; p.33, ¶118; p.35, ¶13;  Retaliation for First Amendment protected advocacy: p.33, ¶117, ¶121; Retaliation for § 1981 protected advocacy: p.36, ¶140: p.37, ¶141: p.37, ¶142 ); and in the first amended petition (ROA,

28.           Constitutional property right to pursue a trade: Vol. VI p.416, ¶ 26; p.423, ¶ 72; p.428, ¶106; ¶111, ¶112; p.429, ¶117, ¶118; p.430, ¶121; p.431, ¶131; p.432, ¶135; p.433, ¶140; p.438, ¶176; Retaliation for § 1981 protected advocacy: p.433, ¶140, ¶142; Retaliation for First Amendment protected advocacy: p.434, ¶146; p.438, ¶174)

29.           YOUNG WILLIAMS is alleged to have directly violated the appellant’s U.S. constitutional and federal statutory rights in the petition (ROA, Federal food stamp benefits Vol. 1, p.27, ¶72; § 1983 Abuse of Process Vol. 1, p.29, ¶87, ¶90, ¶91, ¶92; p.30, ¶93, ¶94, ¶95, ¶96; p.31, ¶98, ¶101, ¶103; Retaliation for § 1981 protected advocacy: p.35, ¶133; p.36, ¶140; p.37, ¶142; Retaliation for First Amendment protected advocacy: p.35, ¶134 ) and in the first amended petition (ROA, Constitutional property right to pursue a trade: VI p.423, ¶72; § 1983 Abuse of Process: p.425, ¶ 87, ¶88, ¶89, ¶90, ¶91, ¶92; p.426, ¶93; ¶94, ¶95, ¶96; p.427, ¶98, ¶101, ¶103, Federal food stamp benefits:

30.           Retaliation for § 1981 protected advocacy: p. 431, ¶133; p.433, ¶140; p.433, ¶142;

31.           Retaliation for First Amendment protected advocacy: p. 432, ¶134; p. 433, ¶143; p. 434, ¶146; p. 436, ¶158; p. 437, ¶171).

32.           HAZLETT is alleged to be in imminent danger of violating the appellant’s  U.S. constitutional and federal statutory rights, and of posing a probable risk of violating the federal criminal civil rights statutes in the first amended petition (ROA, Retaliation for First Amendment protected advocacy: Vol. VI p. 416, ¶28, ¶30, ¶31; . 417, ¶39; p. 418, ¶41; p. 421, ¶57; p. 423, ¶69; p. 438, ¶172; Constitutional property right to pursue a trade (reporting to other jurisdictions): p. 417, ¶40; p. 422, ¶66; p. 422, ¶67; VI p. 435, ¶156; p. 436, ¶162: (protection of attorneys using extrinsic fraud to win for the civil rights conspiracy) p. 439, ¶173; p. 439, ¶174; p. 416, ¶28; p. 416, ¶31 (misrepresentation to out of state no law based employers to prevent the appellant from getting a job) p. 439, ¶175; Retaliation against appellant’s intimate associates (through HAZLETT’s deputy Gayle B. Larkin): p. 416, ¶26; (through HAZLETT’s deputy Rex A. Sharp): p. 439, ¶175, ¶178.

Appellant’s allegations in his § 1983 based claims that FROST, and YOUNG WILLIAMS, were co-conspirators in violation of §§1983 conspiracy and 1985 civil rights conspiracy to injure the appellant’s U.S. constitutional and federal statutory rights with HAZLETT, Gayle B. Larkin, the SRS’ Matthew W. Boddington and other state actors

 

33.           FROST is alleged to have knowingly joined the alleged civil rights conspiracy violating §§1983 conspiracy and 1985 civil rights conspiracy that had a goal of injuring the appellant’s U.S. constitutional and federal statutory rights in the petition (ROA, Vol. 1, p.32, ¶107, ¶112; p.33, ¶117, ¶118, ¶121; p.34, ¶127; p.35, ¶129, ¶130; p.37, ¶142; to injure the appellant’s U.S. constitutional and federal statutory rights:

34.           p.36, ¶140; p.37, ¶141, ¶142 ¶143); and in the first amended petition (ROA, Vol. VI p.431, ¶127, ¶129, ¶130, ¶131; p.432, ¶135; to injure the appellant’s U.S. constitutional and federal statutory rights: p.433, ¶140, ¶141, ¶142, ¶143).

35.           YOUNG WILLIAMS is alleged to have knowingly joined the alleged civil rights conspiracy violating §§1983 conspiracy and 1985 civil rights conspiracy that had a goal of injuring the appellant’s U.S. constitutional and federal statutory rights in the petition (ROA, Vol. 1, p.34, ¶127; p.35, ¶128, ¶133, ¶134; to injure the appellant’s U.S. constitutional and federal statutory rights: p.36, ¶140; p.37, ¶141, ¶142¶143); and in the first amended petition (ROA, Vol. VI p.431, ¶127, ¶128; to injure the appellant’s U.S. constitutional and federal statutory rights: p.425, ¶ 87; p.427, ¶98, ¶103; p. 431, ¶133; p. 432, ¶134; p.433, ¶140, ¶141, ¶142, ¶143; p. 434, ¶146 ).

Facts Related to Issue V

Whether Construing a Petition’s Averments of Fact Against Their Plain Meaning Can Be Used To Support Dismissal

 

36.           FROST’s motion for judgment on the pleadings made its strongest argument on the appellant’s lack of standing based on the property rights arising from transactions with Huffman averred in the petition (ROA Vol. V p. 348-368).

37.           FROST argued for inferences to be made against the sufficiency of the appellant’s claims (ROA Vol. V p. 348-368).

38.           The trial court adopted FROST’s inferences against the sufficiency of the appellant’s claims in its decision to sustain the motion for judgment on the pleadings (Hearing held 4/06/2011 Vol. XV Pgs. 1-69).

Facts Related to Issue VI

Whether Standing Under 42 USC § 1983 For First Amendment Prohibited Retaliation Includes Injury From The Targeting of Intimate Associates

 

39.           The trial court sustained FROST, and YOUNG WILLIAMS’ motions and oral argument for judgments on the pleadings, and HAZLETT’s motion to dismiss that contended the appellant did not have standing because he did not have direct personal injury (ROA Vol. V Pgs. 326-342; Vol. VI Pgs. 462-464; and at a hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

40.           The appellant argued that injuries to his intimate associates Price and Huffman alleged in the petition and amended petition to be directly because of their association with the appellant and in retaliation for the appellant’s protected advocacy were an actionable personal injury to the appellant. (Hearings held 4/06/2011 Vol. XV Pgs. 1-69; 4/19/2011 Vol. XIII Pgs. 1-54).

41.           The trial court found that all Third Person injuries the appellant advocated as actionable in the petition and amended petition were claims of others. (Hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

Facts Related to Issue VII

Whether Standing Under 42 USC § 1981 Includes Loss of Property Rights and Retaliation Against a White Attorney For His Representation of a Minority Citizen’s Colorable Claims of Race Based Discrimination

 

42.           The petition and first amended petition that the defendants deprived the appellant of U.S. constitutional and federal rights from contracts for his representation of the African American James L. Bolden, his witness David M. Price and Baby C found by Shawnee District Court to be American Indian from his father’s racial heritage. (ROA petition Vol. I 16-38; first amended petition Vol. VI 411-442 ).

43.           The petition and first amended petition that the defendants deprived the appellant of U.S. constitutional and federal rights in retaliation for his § 1981 protected advocacy James L. Bolden, his witness David M. Price and Baby C to vindicate their federal statutory rights against race based discrimination. (ROA petition’s allegations of Retaliation for § 1981 protected advocacy: Vol. 1, p.35, ¶133; p.36, ¶140, ¶134;  p.37, ¶141: p.37, ¶142 first amended petition’s allegations of Retaliation for § 1981 protected advocacy Vol. VI p. 431, ¶133; p.433, ¶140, ¶142 ).

Facts Related to Issue VIII

Whether Averments of a Defendants’ Violation of Rules or Statutes to Further A Conspiracy’s Identified Objectives Sufficiently Support An Allegation of Civil Rights Conspiracy At The Pleading Stage

 

 

44.           FROST, and YOUNG WILLIAMS’ motions and oral argument for judgments on the pleadings sought and the trial judge sustained dismissal of the appellant’s civil rights conspiracy claims for insufficiently stating the elements of conspiracy (ROA Vol. XV Pgs. 1-69 and Vol. XIII Pgs. 1-54).

45.           The petition and amended petition make allegations with supporting averments of fact related to FROST, and YOUNG WILLIAMS participation in § 1983 conspiracy including: "a conspiracy to deprive a plaintiff of a constitutional or federally protected right under color of state law” (ROA petition Vol. I p. 16-38; first amended petition Vol. VI p. 411-442).

46.           The petition and amended petition make allegations with supporting averments of fact related to FROST, and YOUNG WILLIAMS participation in § 1985(2) conspiracy including (1) a conspiracy, (2) to deter testimony by force or intimidation, and (3) injury to the plaintiff (ROA petition Vol. I p. 34-37; deter testimony: p. 20 ¶¶ 28-32; first amended petition Vol. VI p. 430-433 deter testimony: p. 416-417 ¶¶  26-40).

47.           The petition and amended petition make allegations with supporting averments of fact related to FROST, and YOUNG WILLIAMS participation in § 1985(3) conspiracy including (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom (ROA petition Vol. I p. 34-37; retaliation for minority race advocacy: p. 36-7 ¶¶ 137-143; first amended petition Vol. VI p. 430-433; retaliation for minority race advocacy: p. 432-433 ).

 

 

Facts Related to Issue IX

Whether A State Attorney Discipline Administrator Can Be Subjected to Prospective Injunctive Relief Under 42 USC § 1983 Against Continuing Violations of Federal Law

 

48.           During the course of the litigation, the five year anniversary of the appellant’s disbarment neared, causing the appellant to add a claim for § 1983 prospective injunctive relief against HAZLETT in the first amended petition who had only been identified as a non defendant co-conspirator in the conduct alleged in the original petition (ROA Vol. VI p. 411-442).

49.           The first amended petition refers to the appellant’s ongoing efforts for admission to practice law in the State of New Jersey that does not permit attorneys to fraudulently procure adoptions or disciplinary actions against their opponents to facilitate civil rights felonies and the US District Court for the Western District of Oklahoma which follows controlling US Supreme Court precedent related to attorney Freedom of Speech (ROA Vol. VI p. 412 ¶ 31, p. 436, ¶161, p. 442 ¶156, p. 436, ¶161 ).

50.           The trial court found instead of the express language of the petition that the appellant did not meet the likelihood of success element for obtaining evidence of Gayle B. Larkin’s misrepresentations to the Kansas Supreme Court on behalf of the civil rights conspiracy to procure the appellant’s disbarment because it is unlikely that the State of Kansas will undo the disbarment procured by the fraud.

51.           The discipline actions by HAZLETT over the conduct alleged in the petition and first amended petition and recognizable in the record of the litigation in trial court by the involved Kansas licensed attorneys only occurred when the attorney fails the alleged goals described to be held by the civil rights conspiracy.

52.           As of the last hearing before this appeal where FROST, and YOUNG WILLIAMS called for the sanctioning of the appellant for filing a parallel action in federal court that indexed its common allegations and averments to the petition in Shawnee District Court for the convenience of the parties and Hon. Judge Murguia, HAZLETT had only taken action against the attorneys identified that failed to accomplish the civil conspiracy’s intentions for Huffman . ( ROA Vol. XIV Pgs. 1-57 ).

53.           The trial court made its ruling on the pleadings without a hearing giving the effect of immunity for HAZLETT from federal civil rights statutes as a judicial branch official.

 

 

ARGUMENTS AND AUTHORITIES

 

The appellant respectfully makes the following assertions or error supported by the controlling authorities for this jurisdiction.

I.            Whether Counsel Described In a Petition As Participating in The Charged Conduct Is Disqualified For Conflict of Interest And As A Witness

 

This court invokes a de novo standard of review when disqualification is based upon disciplinary or ethical rules. See Chrispens v. Coastal Refining & Mktg. Inc., 257 Kan. 745, 761, 897 P.2d 104 (1995) (disqualification of counsel under ethical rules adopted by court question of law); see also State v. Dimaplas, 267 Kan. 65, Syl. ¶ 1, 978 P.2d 891 (1999) (standard of appellate review on whether disciplinary rule prohibits certain professional conduct question of law subject to plenary review).

The appellant sought disqualification of FROST’s counsel (ROA Vol. II Pgs. 87-95; Vol. III Pgs. 160-171; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-39). The trial court denied the motion for disqualification on 4/06/2011(ROA Vol. XV Pg. 39).

As participants in the conduct charged against FROST by the appellant in the petition and amended petition, J. Steven Pigg and his law firm Fisher, Patterson, Sayler & Smith, LLP must be disqualified from representing FROST because they have an unwaivable conflict of interest with FROST and also will likely have to provide testimony against FROST.

A persuasive authority in support of this argument is United States v. Urutyan where an attorney in an unlawful conspiracy with his client was not allowed to represent him:

“Further, the district court considered that “the Government may choose to establish the fraud conspiracy by showing the payment of $85,000 in cash to Mr. Graysen, which would result in Mr. Graysen becoming a potential witness against his client.” Id. Any of these scenarios would pose an unwaivable conflict of interest, and it was therefore well within the district court's substantial latitude to conclude that Graysen's representation posed a serious potential for conflict of interest. See Wheat, 486 U.S. at 164, 108 S.Ct. 1692.”

 

United States v. Urutyan, No. 08-4295 (4th Cir. 2009).

            The Second Circuit found that allegations counsel has engaged in criminal activity related to the charges for which the client is on trial create an unwaivable conflict of interest. See United States v. Williams, 372 F.3d 96, 105 (2d Cir.2004) (finding unwaivable conflict of interest in a criminal case where counsel unlawfully exchanged firearms with defendant indicted for using firearms in furtherance of his criminal activities); United States v. Fulton, 5 F.3d 605 at 609-10 (2d Cir. 1993) (habeas petitioner convicted on heroin charges was denied effective assistance of counsel where a government witness alleged that counsel received part of the heroin linked to defendant, and was involved in heroin trafficking). If the allegations are true, an attorney cannot freely advise the client whether to cooperate, or whether to take the stand at trial, for fear that the client could reveal information implicating the attorney. Fulton at 610. The Fulton court determined that even if the allegations are false, the attorney cannot examine the government witness regarding the allegations against the attorney without in effect becoming an unsworn witness. Id.

The Kansas Supreme court has evaluated whether an attorney must be disqualified as a necessary witness by looking at what is required of an attorney under the Kansas Rules of Professional Conduct, specifically Rule 3.7 and its modifying rules, Rule 1.7 and Rule 1.9. Dimaplas, 267 Kan. at 68, 978 P.2d 891. Only KRPC 3.7 and 1.7 are relevant here.

J. Steven Pigg and employees of his law firm Fisher, Patterson, Sayler & Smith, LLP are likely to be necessary witnesses to the conduct alleged in the petition and amended petition against FROST. Because the petition and amended petition allege a prima facie case of extrinsic fraud by FROST’s counsel in Frost v. Huffman Dist. Ct. Case No. 08CV171 in conspiracy with the defendant CRAIG E. COLLINS who was Huffman’s attorney and a prima facie case of Mail Fraud and collection of invalid debt as fraud based predicate acts under 18 U.S.C. Sec. 1962(d); J. Steven Pigg and employees of his law firm Fisher, Patterson, Sayler & Smith, LLP do not enjoy attorney client privilege in relationship to their representation of FROST:

“To drive the privilege away, there must be 'something to give colour to the charge;' there must be 'prima facie evidence that it has some foundation in fact.' [Citation omitted.] When that evidence is supplied, the seal of secrecy is broken." Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933).

        K.S.A. 60-426(b)(1) requires a finding of sufficient evidence of fraud to create any exception to the attorney-client privilege. We hold sufficient evidence is that which constitutes a prima facie case.

We have stated:

"Prima facie evidence denotes evidence which, if left unexplained or uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports." Baker v. City of Garden City, 240 Kan. 554, Syl. p 3, 731 P.2d 278 (1987).”

 

 Wallace, Saunders, Austin, Brown & Enochs, Chartered v. Louisburg Grain Co., Inc., 824 P.2d 933 at 939, 250 Kan. 54 at 60 (Kan., 1992).

Under KRPC 3.7, the trial court was in error not to have disqualified J. Steven Pigg and employees of his law firm Fisher, Patterson, Sayler & Smith, LLP.

In addition to being likely and necessary witnesses against FROST, J. Steven Pigg and employees of his law firm Fisher, Patterson, Sayler & Smith, LLP have an unwaivable conflict of interest with FROST where their conduct in the alleged civil rights conspiracy by compromising Huffman’s representation through CRAIG E. COLLINS to further the civil rights conspiracy may have been without FROST’s knowledge or consent. Under KRPC 1.7 Conflict of Interest, the trial court was in error not to have disqualified J. Steven Pigg and employees of his law firm Fisher, Patterson, Sayler & Smith, LLP.

II.             Whether It Is premature To Grant Judgment on the Pleadings Before Discovery and The Close of Pleadings  

 

This court has determined the standard of review of a judgment on the pleadings for failure to state a claim for relief under K.S.A. 60-212(b)(6), (c) requires the following: 

       "`"When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition...."

        "`"Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim."

        "`"In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom."' [Citations omitted.]" Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992).”

 

Nelson Energy Programs, Inc. v. Ogtf, 143 P.3d 50 at pg. 57 (Kan. App., 2006)

The appellant opposed FROST’s motion for judgment on the pleadings as untimely before pleadings are closed (ROA Vol. V Pgs. 369-402; Vol. V Pgs. 443-445; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-69). The appellant opposed YOUNG WILLIAMS’ untimely motion to dismiss as a premature motion for judgment on the pleadings (ROA Vol. III Pgs. 216-218;Vol. V Pgs. 326-342; Vol. VI Pgs. 462-464; and at a hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

The appellant filed a motion to amend his petition on 1/11/2011 and served it on the defendants including FROST and YOUNG WILLIAMS with the proposed amended petition (Vol. IV Pgs. 278-313). None of the defendants objected to the amendment and the trial court granted amendment at the beginning of the 4/06/2011 hearing and the changes in the amended petition were referred to by the parties and the court (ROA Vol. XV Pgs. 4-6 and 47, 52).

            The appellant made an oral motion (ROA Vol. XV Pgs. 6,  7, and 8) to limit the testimony by the appellant’s witness on FROST’S counsel’s disqualification, Donna L. Huffman, giving the court and FROST notice that unintended conversion of FROST’s motion to a motion for summary judgment would then require discovery for the appellant to answer. See Aplt Apdx 0001

The appellant served the first amended petition on the defendants including FROST, YOUNG WILLIAMS and HAZLETT on 4/18/2011 (Vol. IV Pgs. 278-313). 

The trial court granted FROST’s motion for judgment on the pleadings including the petition and the unanswered amended petition 4/06/2011 (FROST never answered or made a motion to dismiss the first amended petititon); denied the motion to strike as untimely the motion to dismiss by YOUNG WILLIAMS on 1/24/2011 and dismissed the appellant’s claims against YOUNG WILLIAMS in both the petition and the unanswered amended petition on 4/19/2011.

There has been no pretrial conference or discovery in trial court (ROA, Vol. I p. 1-15).

The appellant gave notice to the court and YOUNG WILLIAMS on 12/28/2010 that “The pleadings are not closed and the plaintiff contends that he has sufficiently plead his claims for discrimination under § 1983 and § 1985(3), but in an abundance of caution, will seek leave to amend his Complaint if a defendant is permitted a KSA 60-212(b)(6) motion” (ROA, Vol. I p. 217-218) and did file a motion to amend, serving the proposed amended petition (Vol. IV Pgs. 278-313) as an attachment to FROST and YOUNG WILLIAMS and with leave of the court served the first amended petition on FROST, YOUNG WILLIAMS and HAZLETT on 4/18/2011 (Vol. IV Pgs. 278-313).

The judgment on the pleadings obtained by FROST and then by YOUNG WILLIAMS respectfully violates the Kansas Supreme Court’s controlling precedent in Montoy v. State, 275 Kan. 145 HN4, 5, 6, 7 (Kan. 2003) on the issue of summarily dismissing claims before a pretrial conference and before discovery (Vol. V Pg. 372). "Ordinarily, summary judgment should not be granted when discovery is incomplete." Bell v. Kansas City, Kansas, Housing Authority, 268 Kan. 208, 220, 992 P.2d 1233 (1999).

FROST’s Motion for Judgment on the Pleadings violated the requirements of K.S.A. 60-212(c) that the pleadings be closed (Vol. V Pg. 372).

The trial court judgment before the first amended petition is answered respectfully contradicts the Court of Appeals’ determination when pleadings are closed:

“Pleadings are not closed until an answer is filed unless a counterclaim, cross-claim, or third party claim is filed, in which event the filing of a reply or answer to the cross-claim or third-party claim will normally mark the close of the pleadings. Hetman v. Fruit Growers Express Company, 200 F.Supp. 234 (D.N.J.1961); Williams v. Walnut Park Plaza, Inc., 68 F.Supp. 957 (E.D.Pa.1946); Van Dyke v. Broadhurst, 28 F.Supp. 737 (M.D.Pa.1939); Interstate Commerce Commission v. Daley, 26 F.Supp. 421 (D.Mass.1939); Mull v. Colt Co., 31 F.R.D. 154 (S.D.N.Y. 1962); Colboch v. Aviation Credit Corporation, 64 Ariz. 88, 166 P.2d 584 (1946); 5 Wright & Miller, Federal Practice & Procedure: Civil § 1367, p. 687 (1969); 2A Moore's Federal Practice P 12.15 (2d ed. 1981); 71 C.J.S. Pleading § 425, at 864.

        Dora Bond could not properly move for, nor could the trial court properly grant, a judgment on the pleadings prior to an answer being filed.”

 

Simmon v. Bond, 634 P.2d 1148 at 1151, 6 Kan.App.2d 766 at 768-9 (Kan. App., 1981).

Our state’s most authoritative precedent on K.S.A. 60-212(c) is the Kansas Supreme Court in Tabor v. Lederer (argued by appellant at Vol. V Pg. 373) that was decided in the context of a similar fact situation to the action on appeal where no discovery had yet taken place and the first amended petition pleading had not been answered:

“[W]e believe this case was improperly disposed of by dismissal through the medium of the defendant's motion for judgment on the pleadings.

***

Moreover, it is perfectly obvious that pretrial discovery had not been completed.  The plaintiff's request for admission of facts and genuineness  of documents, filed February 28, remained still unanswered by the defendant, whose only response up to that time had been to interpose objections. When the trial court heard and sustained the defendant's motion for judgment on the pleadings, the request for admissions was still pending and the defendant's objections thereto had not been acted upon.

In Timmermeyer v. Brack, 196 Kan. 481, 412 P. 2d 984, this court considered a comparable situation and held:

"Summary judgment should not be entered if there remains a genuine issue of a material fact, nor where the opposing party is proceeding with due diligence with his pretrial discovery but has not had an opportunity to complete it." (Syl. para. 1.) (Emphasis supplied.)

The rule expressed in Timmermeyer has been threaded through our decisions with notable consistency. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, we said:

"Ordinarily a motion for summary judgment should not be granted so long as pretrial discovery remains unfinished. ( Smith-Corona Marchant, Inc. v. American Photocopy Equip. Co., 217 F. Supp. 39 [S. D. N. Y. 1963].)" (p. 211.)

See, also, Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770.

***

In conclusion, we hold that the trial court erred in sustaining the defendant's motion for judgment on the pleadings.”[Emphasis added]

 

Tabor v. Lederer, 205 Kan. 746, 748-749 (Kan. 1970).

 

III.             Whether Conversion of a Motion Judgment on the Pleadings Without Providing Notice And Discovery Violates Due Process

 

Whether matters outside the pleadings were considered "must be decided from the allegations of the petition." State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 790, 112 P.3d 131 (2005). Dismissal is only justified if the petition's allegations clearly demonstrate petitioners do not have a claim, after viewing all claims in the light most favorable to petitioner and resolving every doubt in their favor. 279 Kan. at 790, 112 P.3d 131.

            At the hearing on the appellant’s motion for FROST’S counsel’s disqualification and FROST’s motion for judgment on the pleadings held 4/06/2011 (ROA Vol. XV Pgs. 1-69), the appellant made an oral motion (ROA Vol. XV Pgs. 6,  7, and 8) to limit the testimony by the appellant’s witness on FROST’S counsel’s disqualification, Donna L. Huffman to avoid unintended conversion of FROST’s motion to a motion for summary judgment which would then require discovery for the appellant to answer. The trial judge denied the appellant’s request for a limiting order (ROA Vol. XV Pg. 8). See Aplt Apdx 0001

In order to prevent unintentional conversion to summary judgment, the appellant did not question Huffman during the hearing (ROA Vol. XV Pgs. 1-69) on the different jobs he performed for her several businesses and what operating costs and reimbursements for use of the truck and travel costs.

            The trial judge then at the conclusion of the hearing in dictating his order on FROST’s motion for judgment on the pleadings, stated he had weighed Huffman’s testimony on the key issue raised by FROST to dismiss the pleadings, the appellant’s standing related to business arrangements between the appellant and Huffman though they were still unclear to the court (ROA Vol. XV Pgs. 63 and 64). ). See Aplt Apdx 0002

In addition to raising the issue of unintentional conversion of FROST’s motion to a motion for summary judgment and the result which would require discovery (ROA Vol. XV Pgs. 6, 7, and 8) by the appellant in order to respond to FROST, the appellant also raised his objection that the court ruled that the witness Huffman to the impermissible conflict motion’s testimony could not be limited to the conflict motion, despite her potential to convert the motion to one for summary judgment where there had not yet been any discovery allowed (ROA Vol. VI Pg. 444, ¶5).

The appellant also raised his objection that the court ruled that FROST is dismissed from the action because the court specifically found that on the basis of the written memorandums on the motion for judgment on the pleadings and the evidence the court heard from the testimony of Donna L. Hufffman, the court was sustaining FROST’s motion (ROA Vol. VI Pg. 444, ¶6). Converting the motion to one for summary judgment sua sponte.

The court could not have granted FROST’s motion, which the court turned into one for summary judgment without allowing discovery and the Due Process guaranteed by the Kansas Rules of Civil Procedure for summary judgment. The appellant was prejudiced by the deprivation of his right to discovery and the trial court’s judgment must respectfully be reversed.

The trial court impermissibly turned the motion for judgment on the pleadings into a motion for summary judgment, when the court weighed Huffman’s testimony beyond the evidence related to the need to disqualify FROST’s counsel.

The trial court did not permit the appellant the opportunity for discovery to obtain evidence to clarify the court’s understanding of the many contracts made and jobs the appellant did with Huffman and for her several businesses. And, ultimately the court settled a factual controversy reserved for the jury.

The Kansas Supreme court has determined that doing so converts the motion into one for summary judgment under K.S.A. 60-212(b):

“K.S.A. 60-212(b) says if "matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss for failure to state a claim upon which relief can be granted] shall be treated as one for summary judgment." (Emphasis added.)

Goldbarth v. Kansas State Board of Regents, 269 Kan. 881 at 885, 9 P.3d 1251 (Kan., 2000).

In Collier v. Operating Engineers Local Union No. 101, 612 P.2d 150, 228 Kan. 52 (Kan., 1980), the Kansas Supreme Court observed that K.S.A. 60-212(b)(6) further provides in pertinent part:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256."

        When the status of a motion under K.S.A. 60-212(b )(6) has been converted to that of a motion for summary judgment reasonable opportunity to present all material pertinent to such a motion should be given.”

 

Collier v. Operating Engineers Local Union No. 101, 612 P.2d 150 at 153, 228 Kan. 52 at 55 (Kan., 1980).

The court in Ronald v. Odette Family v. Agco Finance, 129 P.3d 95, 35 Kan. App. 2d 1 (Kan. App., 2005) determined that Supreme Court Rule 141 does not create a reason for more discovery but where there was no discovery the Ronald v. Odette court’s observation that Supreme Court Rule 141 provides a chance to marshal conflicting evidence precluding judgment:

“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant's memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra.)"”

 

Ronald v. Odette Family v. Agco Finance, 129 P.3d 95 at 99-100, 35 Kan. App. 2d 1 (Kan. App., 2005).

Here, the appellant’s petition and amended petition pointed to “ witnesses and additional facts supporting the party's position” including the gasoline (ROA, Vol. I p. 34, ¶124 ),  and operating costs of the truck (ROA, Vol. I p. 24, ¶51 ), and independent odd jobs that were completed like clearing the apartment (ROA, Vol. I p. 24, ¶49 ), separate Kansas Banking agency controlled employment in the mortgage brokerage as a substitute for a paid employee on pregnancy leave (ROA, Vol. I p. 25, ¶¶55, 56 ), and a planned 1/3rd of a realty business ROA, Vol. I p. 24, ¶50 ), that precluded summary judgment. “[W]here we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]'" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).

IV.             Whether Imposition of a Heightened Pleading Standard For Claims Under 42 USC § 1983 Violates Kansas Notice Pleading.

 

This court must also decide whether the pleaded facts and inferences state a claim, not only on the theories that were espoused by the plaintiffs, but also on any possible theory we can divine. Kansans for Fair Taxation, Inc. v. Miller, 20 Kan. App. 2d 470, Syl. ¶ 1, 889 P.2d 154, rev. denied 257 Kan. 1092 (1995).

            The trial judge stated that it is insufficient to plead each of the elements for a federal statutory claim with supporting elements of facts. More was required. See hearings held 4/06/2011 and 4/19/2011 (ROA Vol. XV Pgs. 1-69 and Vol. XIII Pgs. 1-54). At the final hearing before appeal, the judge indicated that he still believed 42 U.S.C. § 1983 required an additional element that the underlying action terminate in favor of the plaintiff.  The Appendix excerpt from the 4/19/2011 summarizes the heightened pleading standard the court adopted at FROST and YOUNG WILLIAMS suggestion. See Aplt Apdx 0003

The claims in the petition and amended petition state each element of  42 U.S.C. § 1983 with supporting averments of fact giving plausibility to the alleged injury to the appellant’s identified rights, privileges, and immunities secured by the laws and the Constitution of the United States.

The petition and first amended petition meet the requirements in Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007).

The trial court was respectfully in error to find that Bloom v. FNU Arnold, et al., Kansas Appeals Case No. 103,352 (2010) did not control the elements required to plead a claim for Abuse of Process which were alleged in the petition and first amended petition against YOUNG WILLIAMS (ROA, Vol. VI pg. 472, ¶5 ).

The trial court expressly ruled that Bloom v. FNU Arnold, et al., Kansas Appeals Case No. 103,352 (2010) did not control the elements required to plead a claim for civil rights retaliation under 42 USC § 1983. The appellant’s petition and first amended petition alleged YOUNG WILLIAMS’ violations of 42 USC § 1981,  42 USC § 1983 conspiracy, 42 USC § 1985(2) conspiracy and 42 USC § 1985(3) (ROA, Vol. VI pg. 472, ¶6 ) with the same elements this court would adopt in Bloom.

The trial court expressly ruled that pleading the elements of Bloom v. FNU Arnold, et al., Kansas Appeals Case No. 103,352 (2010) did not prevent dismissal of the plaintiff’s  42 USC § 1983 claims against YOUNG WILLIAMS at the pleading stage before discovery (ROA, Vol. VI pg. 473, ¶7 ).

The petition and the amended petition (adding HAZLETT) sufficiently states FROST, YOUNG WILLIAMS and HAZLETT Acted Under Color Of State Law:

“ ‘[S]tating a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required element. This ‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary element.”

 

Phillips v. County of Allegheny, 515 F.3d 224, 2e4 (3d Cir.2008)(quoting Twombly, 550 U.S. at 556).

FROST and YOUNG WILLIAMS are alleged to be a conspirator with Boddington and Larkin (FROST) and an agent of the Kansas SRS (YOUNG WILLIAMS) meeting the attorney as 42 U.S.C. § 1983 state actor requirement explained in Srubar v. Rudd, Rosenberg, Mitofsky & Hollender, 875 F. Supp. 155 (S.D.N.Y., 1994) and for which the Tenth Circuit and Kansas District court have recognized “…liability can extend to a private party if that party is a willful participant in joint action with the state actor. See Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995).” Jackson v. City of Overland Park at pg. 6 (D. Kan., 2012).

The petition and the amended petition (adding HAZLETT) sufficiently states FROST, YOUNG WILLIAMS and HAZLETT participated in depriving the appellant of his rights, privileges, and immunities secured by the laws or Constitution of the United States.

It is beyond refutation that the First Amended Complaint alleges deprivations of fundamental liberty interests protected under the constitution and laws of the United States. See Aplt. Stmt. of Facts Section IV, supra.

Under 42 U.S.C. § 1983 and § 1983 conspiracy alleged by the appellant’s petition and first amended petition, inactive co-conspirators are liable for the acts of another conspirator even if the conspirator is not a defendant or even if they are immune as would be the non defendant Attorney Disciplinary Prosecutor Gayle B. Larkin:

“The most common circumstance where litigants and lawyers are alleged to be liable under Section 1983 is where a plaintiff asserts that they conspired with a judge to deprive the plaintiff of civil rights. Polur v. Raffe, 912 F.2d 52, 55 (2d Cir.1990), cert. denied, 499 U.S. 937, 111 S.Ct. 1389, 113 L.Ed.2d 446 (1991); Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir.1985); Dahlberg, 748 F.2d at 91, 93. Even where a judge's judicial immunity precludes her being held liable in such a situation, an action against the attorney(s) or litigant(s) will lie. Polur, Id. at 56. Under this version of the "joint participation" theory, plaintiff must allege that at least one conspirator was an agent of the state, acting under color of law, to give rise to Section 1983 liability for private parties who deprived her of constitutional or legal rights.” [Emphasis added]

 

Srubar v. Rudd, Rosenberg, Mitofsky & Hollender, 875 F. Supp. 155 (S.D.N.Y., 1994).

            The appellant also adequately stated a claim against HAZLETT. The appellant need not allege or prove past violations of 42 USC 1983 in order to obtain injunctive relief. Instead, a plaintiff must make a showing of "irreparable injury…a likelihood of substantial and immediate irreparable injury." Id. (quoting Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). See also, Hoepfl v. Barlow, 906 F.Supp. 317 (E.D.Va.1995) (holding that a plaintiff will be precluded from obtaining injunctive relief based upon past injuries and instead must show that he faces a "threat of present or future harm").

This court has adopted the Kansas Supreme Court’s determination that there are two elements required to state a claim under 42 U.S.C. § 1983:

“A 42 U.S.C. § 1983 claim has two essential elements: whether the conduct complained of was committed by a person acting under color of state law and whether the conduct deprived a person of rights, privileges, or immunities secured by the laws or Constitution of the United States. Prager v. State, 271 Kan. 1, 11-12, 20 P.3d 39 (2001).”

 

Westboro Baptist Church, Inc., Appellant, v. David L. Patton; 32 Kan. App. 2d 941; 93 P.3d 718; 2004 Kan. App. LEXIS 684 (2004).

The Kansas Supreme Court does not appear to have changed its standard based on the plausibility requirement from Twombly, however the Tenth Circuit and its component courts have reacted to the plausibility requirement and the appellant’s petition and first amended petition state plausible claims because averments of fact support each element of the appellant’s civil rights claims: "Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow 'the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Schmidt v. DJO, LLC, No. 09-CV-02683-WYD-MEH, 2010 WL 3239249, at *2 (D. Colo. Aug. 12, 2010) (quoting Ashcroft v. Iqbal, 129 S. CT. 1937 . at 1949 (2009))

The Tenth Circuit has again recognized that Fed. R. Civ. P. 8 is still the valid standard for evaluating 42 U.S.C. § 1983 claims under Fed. R, Civ. P. 12(b)(6) in a new refined standard that is truer to the subtle nuances of the Supreme Court in Twombly, 550 U.S. 544 in a ruling appearing after the trial court dismissed FROST, YOUNG WILLIAMS, and HAZLETT. See Khalik v. United Air Lines at 5-7 (10th Cir., 2012).

            This court employs the current standard for evaluating retaliation and an abuse of process claims brought under 42 U.S.C. § 1983 in Bloom v. FNU Arnold, et al., Kansas Appeals Case No. 103,352 (2010) which was met by the appellant’s claims in his petition and amended petition. Dismissal of the appellant’s claims against must respectfully be reversed.

V.            Whether Construing a Petition’s Averments of Fact Against Their Plain Meaning Can Be Used To Support Dismissal

 

The court views” the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002).” Rosewood Services, Inc. v. Sunflower Diversified Services, Inc. at 23 (Kan., 2003).

The appellant opposed FROST’s motion for judgment on the pleadings based on FROST’s argument that the appellant lacked standing for retaliation against First Amendment and other protected speech (ROA Vol. V Pgs. 369-402; Vol. V Pgs. 443-445; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-69).

All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to the plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).

Even the right to get the cost of gasoline fully refunded is facially enough to prevail on claims based on First Amendment retaliation. In arguing that the court should not infer the appellants’ petition and amended petition and all reasonable inferences in favor of the appellant, FROST was fighting a battle that was costly to the reputation of the court and ultimately futile. The sufficiency of the various property rights the appellant had with Huffman had no bearing on the standing in claims for retaliation for protected speech.

The Tenth Circuit has determined a property right is not required for standing in a First Amendment retaliation claim:

[T]he Supreme Court has held a property right is not required for a first amendment retaliation claim. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See also Dickeson, 844 F.2d at 1440. In Perry, the Supreme Court stated that "even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech." 408 U.S. at 597, 92 S.Ct. at 2697. See also Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); L. Tribe, American Constitutional Law, Sec. 11-5 at 781 (2d ed. 1988).”

 

Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228 (C.A.10 (Okl.), 1990).

The trial court was respectfully in error to construe the many forms of business, contract, and reimbursement rights from interactions with Donna L. Huffman that were interfered with by FROST, YOUNG WILLIAMS and their civil rights co-conspirators as a single contract against the plain meaning of the paragraphs in the petition and first amended petition:

“However, drawing all reasonable inferences in favor of Rosewood, as the court must, it can reasonably be inferred that Mr. Johnson's activities were substantially motivated as a response to Ms. Hammond's lobbying activities.”

 

Rosewood Services, Inc. v. Sunflower Diversified Services, Inc. at 37 (Kan., 2003).

            In Bolden v. City of Topeka, the Tenth Circuit court reversed Hon. Chief

Judge Kathryn H. Vratil’s determination that the complaint should be dismissed by drawing inferences against the complaint’s incorporation of § 1981 claims under § 1983 despite the express language on the face of the complaint doing so:

“Mr. Bolden contends that he brought his § 1981 claims against the City under § 1983. His contention is far from frivolous. In his Second Amended Complaint his claim under § 1983 (Count 3) incorporates by reference all his preceding allegations, which include those in his § 1981 claim (Count 1). A complication arises in that his § 1981 claim concerning the janitorial contract first appears in the pretrial order, in which no mention is made that the § 1981 claim is being brought under § 1983. But one could infer that, as in his complaint, the § 1983 claim incorporates his § 1981 claim; and, indeed, Mr. Bolden argued to the district court that his § 1981 claim had been incorporated into his § 1983 claim. The City disputed the argument, and the district court did not specifically address it.”

 

Bolden v. City of Topeka, Kan., 441 F.3d 1129 (10th Cir., 2006).           

            The trial court was respectfully in error to dismiss the appellant’s claims against FROST based on a clear error of fact and law that the appellant lacked property rights and therefore that the appellant lacked standing.

VI.             Whether Standing Under 42 USC § 1983 For First Amendment Prohibited Retaliation Includes Injury From The Targeting of Intimate Associates

 

Speech standard: "[T]he First Amendment bars retaliation for protected speech." Crawford-El v. Britton, 523 U.S. 574, 592, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). "[A]ny form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom." Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000).

The appellant opposed YOUNG WILLIAMS’ argument the appellant lacked standing made in an untimely motion to dismiss as a premature motion for judgment on the pleadings (ROA Vol. V Pgs. 326-342; Vol. VI Pgs. 462-464; and at a hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

The court at the urging of FROST and YOUNG WILLIAMS adopted as a finding of law the appellant cannot assert standing in a 42 U.S.C. § 1983 action for retaliation for protected speech under 42 U.S.C. § 1981 or First Amendment protected speech. Substantial authority would appear to support the application of the hornbook rule that 42 U.S.C. § 1983 injury must be personal. However hypothetical circumstances could be imagined where this hornbook rule about the direct personal injury requirement does not prevent the recognition of direct injury to the 42 U.S.C. § 1981 or First Amendment protected speaker by injuring family members, intimate associates, or even business associates to hurt or discourage the 42 U.S.C. § 1981 or First Amendment protected speaker from the protected speech in the future or in retaliation for it in the past.

The petition and amended petition identify similarly situated persons being treated the same as the appellant by the same actors and the same civil rights conspiracy. At the time both pleadings were written, the goal was to give notice to the defendants of the gravamen of their conduct and that the claims would necessarily survive summary judgment because: “...evidence of a similarly situated individual who was retaliated against "might also be sufficient to show the existence of an unconstitutional municipal policy giving rise to section 1983 liability."  Melton v. City of Oklahoma City, 879 F.2d 706, 725 n.26 (10th Cir. 1989).

Unfortunately, the defendants seized on the third party averments to justify dismissal of the appellant’s claims. Ignored was the clearly established third party advocacy on behalf of people who in the allegations of the complaint were restrained from representing their own rights to redress under federal civil rights and racketeering statutes by being deprived of counsel either through the over arching scheme of the civil rights conspiracy’s goal to increase the trafficking of children through the extrinsic fraud of preventing natural parents and lawful guardians from having independent counsel the conspiracy did not control or restrain through extortion, or the direct use of attorney discipline actions to deprive citizens of the opportunity to vindicate their rights by disciplining their attorneys for that protected advocacy in violation of the First and Sixth Amendments, 42 U.S.C. § 1981 and the Supremacy Clause.

The petition and amended petition state a claim for injury to these third parties including Donna L. Huffman, David M. Price, Mark Hunt, Dustin Sherwood, and Valery Rosproy. Third Party Injury standing jus tertii injury arising out of a common protected activity where there is a barrier to the Third person bringing a judicial action to vindicate their federal rights for monetary damages under McCormick v. City of Lawrence, Kansas, 253 F.Supp.2d 1156 at 1163-4 and 1169-70 (D. Kan., 2003). The appellant’s claims meet the Third Party Standing requirements the three-part analysis set forth in Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); and the requirements in Hodak v. City of St. Peters, 535 F.3d 899 at and fn2  (8th Cir., 2008) and especially where it concerns retaliation for protected advocacy Camacho v. Brandon, 317 F.3d 153 at 159-60 (2d Cir.2003).

The appellant, however argued in all memorandum and hearings that the petition and amended petition state claims for direct injury to the plaintiff by injurious acts done to the appellant’s intimate associates David M. Price and Donna L. Huffman which the petitions also give supporting averments of facts of intimacy unrelated to both being former clients. Instead the petitions describe complicated interpersonal interactions and a shared mutual life struggle and dependency beyond any mere business interactions. Intimacy is sufficiently averred to survive dismissal. 

The petition and amended petition describe express retaliation against Huffman for her association with the appellant in the First Amendment protected advocacy against securities fraud in W.D. of Missouri U.S. Court and a strong temporal relationship to the civil rights conspiracy’s actions against Price for his filing injunctive in Kansas District court to obtain the appellant’s representation to vindicate the federal civil rights of a class of Kansas SRS victims. This same kind of temporal relationship was used by the Kansas Supreme court as a reason to deny summary judgment: “Less than a month after the results …Mr. Johnson sent letters to SRS in December of 1999 and again in January of 2000 complaining about Rosewood's activities” Rosewood Services, Inc. v. Sunflower Diversified Services, Inc. at 37 (Kan., 2003).

On January 24, 2011, the United States Supreme Court held in Thompson v. North American Stainless, LP, No. 09-291, 561 U.S. __ (2011), that a male employee who claimed he was fired because his fiancée filed a sex discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) against their mutual employer, may pursue a retaliation claim under Title VII of the Civil Rights Act of 1964.  Specifically, the Court concluded that the male employee was a “person aggrieved” within the meaning of Title VII and, therefore, had standing to sue. Title VII and the civil rights act 42 U.S.C. § 1981 share the same controlling precedents.

Like a Title VII case, the appellant was the “person aggrieved.” Title VII prohibits an employer from discriminating against any employee on the basis of race, color, religion, sex, and national origin with respect to compensation, terms, conditions, or privileges of employment, and discriminatory practices that deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee.  Title VII also prohibits retaliation against any employee who has brought a charge of discrimination.  The statute permits any “person claiming to be aggrieved” by an alleged employment practice to file a civil action.

In determining whether the male employee in Thompson was a “person aggrieved” within the meaning of the statute, the Court relied on its prior decision in Burlington Northern Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which held that the anti-retaliation provision, unlike the anti- discrimination provision, extends beyond employer acts that affect terms and conditions of employment to also cover any employer action that might dissuade a reasonable employee from making or supporting a discrimination charge.  Based on this interpretation, the Court explained that a reasonable employee might be dissuaded from engaging in protected activity if the employee knew that his or her fiancée would be fired.

The Court therefore held that the male employee was a “person aggrieved” within the meaning of Title VII. By the same reasoning, the appellant is the “persons aggrieved” by FROST and the civil rights conspiracy’s many actions against Donna L. Huffman and likely, the appellant is also the “persons aggrieved” by YOUNG WILLIAMS and civil rights conspiracy’s actions against David M. Price.

The appellant meets the Thompson v. North American Stainless “Zone of Interests” test. The Court’s inquiry was whether the male employee had standing to bring a Title VII civil action against the employer.  The Court looked to the common usage of the term “person aggrieved” to adopt a “zone of interests” test for standing.  Under this test, a person who is adversely affected within the meaning of a relevant statute may not sue unless he or she falls within the “zone of interests” sought to be protected by the statute.

According to the Court, Title VII’s term “aggrieved” incorporates the zone of interest test, thus enabling suit by any plaintiff with an interest arguably sought to be protected by Title VII.  As the plaintiff in Thompson was an employee and Title VII’s purpose is to protect employees from their employers’ unlawful actions, the plaintiff fell within the “zone of interests” protected by Title VII and, therefore, had standing to sue. In light of this decision, any reprisal against family members and close associates of employees who have filed charges of discrimination is prohibited.

FROST, YOUNG WILLIAMS, and the civil rights conspiracy’s actions against the appellant’s intimate associates (the amended petition also details actions against the appellant’s son causing him to drop out of high school) in retaliation for the appellant’s First Amendment guaranteed and statutorily protected conduct of advocacy of behalf of racial minorities’ civil rights (James L. Bolden’s § 1981 and § 1982 claims and David M. Price or Baby C’s Indian Child Welfare Act (“ICWA”) 25 U.S.C. §§ 1901–1963 claims), exactly the “zone of interest” sought to be protected by 42 U.S.C. § 1981.

The Tenth Circuit has treated some of the standards for Title VII and 42 USC § 1981 based claims as the same: “Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir.1997) (citing Durham v. Xerox Corp., 18 F.3d 836, 838-39 (10th Cir.1994) for the proposition that “standards and burdens under § 1981 are the same as those under Title VII”).”Tademy v. Union Pac. Corp., 614 F.3d 1132 at 1144, 2008 WL 8085719 (10th Cir., 2008). See also Faragalla v. Douglas Cnty. Sch. Dist. Re 1 (10th Cir., 2011). This court and the Kansas Supreme Court which look to the Tenth Circuit as persuasive authority for application of U.S. Supreme Court precedent would find Thompson v. North American Stainless, LP, No. 09-291, 561 U.S. __ (2011) applies to the “zone of interest” sought to be protected by 42 U.S.C. § 1981 and reverse the trial court on the denial of standing for retaliation against intimate associates.

VII.             Whether Standing Under 42 USC § 1981 Includes Loss of Property Rights and Retaliation Against a White Attorney For His Representation of a Minority Citizen’s Colorable Claims of Race Based Discrimination

 

An appellate court has de novo review of a question of law. Zimmerman v. Bd. of County Commissioners of Wabaunsee County, 293 Kan. 332, 264 P.3d 989 (Kan., 2011) referring to review of a constitutional taking, not 42 U.S.C. § 1981.

The appellant opposed FROST’s motion for judgment on the pleadings for lack of standing (ROA Vol. V Pgs. 369-402; Vol. V Pgs. 443-445; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-69). The appellant opposed YOUNG WILLIAMS’ motion to dismiss for lack of standing (ROA Vol. III Pgs. 216-218;Vol. V Pgs. 326-342; Vol. VI Pgs. 462-464; and at a hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

            The appellant was disbarred for representing the rights of an American Indian infant boy through representing the boy’s father David Martin Price, known to be of qualifying American Indian descent  through the Cherokee Nation Eastern Band:

“D.M.P. was unaware of the birth, or the child's birth certificate with his name on it. Vot 1 page30 The petition attachments included notice to the area directors of the Sioux Nation, the birthmother's tribe. but not the Cherokee Nation Eastern Band, known by her to be the tribe of the natural father, or any notice to the Secretary of State, or Bureau of Indian Affairs. Vol 1 page 24. ln spite of the absolute knowledge the birth mother had of D.M.P .'s parentage as the adoption petition reveals, and that at all times throughout this matter, D.M.P .'s address and telephone number has remained the same as known by the birth mother, the birth mother and her attorney never contacted D.M.P”

 

Brief of the Appellant In the Matter of Baby C Case No. 03 90035 A at page 3 (ROA, Vol. VIII p. 585, ¶4 );

            The disbarment was also for the appellant’s briefing in appeal the defense to the State of Kansas’s termination of parental rights over the child in the raised by David M. Price in the Shawnee District Court case In the Matter of Baby C Case No. 01 A 4. See A. Brief of the Appellant In the Matter of Baby C Case No. 03 90035 A at page 35-36 (ROA, Vol. VIII p. 585, ¶5 ).

            The Kansas Supreme Court later adopted the appellant’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). See First Amended Complaint pg. 2 at fn. 2 (ROA, Vol. VIII p. 585, ¶6 ).

            The defendants including FROST and YOUNG WILLIAMS could not lawfully participate in the civil rights conspiracy to injure the appellant or his intimate associates for his representation of James L. Bolden, David M. Price or Baby C in their racial discrimination claims under the federal civil rights statutes.

The Kansas Supreme Court looks to federal circuit court of appeals decisions for interpreting the federal civil rights statutes. “However, the "independent action" in Prager [Prager v. State, 271 Kan. 1, 11-12, 20 P.3d 39 (2001)] was a federal claim brought under 42 U.S.C. § 1983 with a body of United States Supreme Court law to consider.” Purvis v. Williams, 73 P.3d 740, 276 Kan. 182 (Kan., 2003).

The Tenth Circuit in Phelps v. Wichita Eagle-Beacon recognizes that as a white attorney representing the African American James L. Bolden in federal race based civil rights discrimination claims, the appellant has standing under 42 U.S.C. § 1981. 

            The Phelps v. Wichita Eagle court specifically stated:

“We agree with plaintiff that the district court erred in its analysis. As this court and other circuits have held, alleged discrimination against a white person because of his association with blacks may state a cause of action under Section 1981. See, e.g., Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1447 (10th Cir.1988) (white employee who alleged that he was terminated for assisting black employee could maintain Section 1981 action); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir.1986) (white plaintiff discriminated against because of marriage to a non-white could maintain a claim under Section 1981); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir.1986) (same); Fiedler v. Marumsco Christian School, 631 F.2d 1144 (4th Cir.1980) (Section 1981 held to prohibit a private sectarian school from terminating a contractual relationship with a white student because of her association with a black student at the school); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.) (suit allowed under Section 1981 where white employee claimed his company forced him to retire because he sold his house to a fellow black employee), modified on other grounds, 520 F.2d 409 (2d Cir.1975). Thus, we conclude that plaintiff does have standing to sue under Section 1981.”[Emphasis added]

 

Phelps v. Wichita Eagle Beacon, 886 f.2d, 1267 (10 Cir. 1989).

FROST and YOUNG WILLIAMS are subject to § 1981 liability as civil rights conspirators for the acts of their co-conspirators even those that are themselves immune:

“Section 1981 provides: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981(a).”

 

Cook v. Randolph County, Ga., 573 F.3d 1143 at fn 8 (11th Cir., 2009).

            The appellant has stated interference with right to contract claims under § 1981  against FROST and YOUNG WILLIAMS for the conduct alleged to be committed against the appellant by members of the civil rights conspiracy for his contracted representation of Bolden, Price and Baby C, and for his offer to represent Price (who is of American Indian descent) in a class action against the Kansas SRS:

“To state a claim under § 1981 for interference with a right to contract, "a plaintiff must identify an impaired contractual relationship under which the plaintiff has rights." Kinnon v. Arcoub, Gopman & Assocs., 490 F.3d 886, 890 (11th Cir. 2007)”

 

Jimenez v. Wellstar Health System, 596 F.3d 1304 at 1309 (11th Cir., 2010).

The appellant has retaliation claims under § 1981 against FROST and YOUNG WILLIAMS for the conduct alleged to be committed against the appellant by members of the civil rights conspiracy for his representation of Bolden, Price and Baby C:

“To state a retaliation claim under § 1981, a plaintiff must allege a defendant retaliated against him because the plaintiff engaged in statutorily protected activity. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.2008). As with other statutory retaliation claims, such a claim under § 1981 requires that the protected activity involve the assertion of rights encompassed by the statute. See Hawkins v. 1115 Legal Svc. Care, 163 F.3d 684, 693 (2d Cir.1998)”

 

Jimenez v. Wellstar Health System, 596 F.3d 1304 at 1311 (11th Cir., 2010).

VIII.             Whether Averments of a Defendants’ Violation of Rules or Statutes to Further A Conspiracy’s Identified Objectives Sufficiently Support An Allegation of Civil Rights Conspiracy At The Pleading Stage

 

A plaintiff claiming conspiracy must plead “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement” Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

            The appellant opposed FROST’s motion for judgment on the pleadings for lack of standing (ROA Vol. V Pgs. 369-402; Vol. V Pgs. 443-445; and at a hearing held 4/06/2011 Vol. XV Pgs. 1-69). The appellant opposed YOUNG WILLIAMS’ motion to dismiss for lack of standing (ROA Vol. III Pgs. 216-218;Vol. V Pgs. 326-342; Vol. VI Pgs. 462-464; and at a hearing held 4/19/2011 Vol. XIII Pgs. 1-54).

Irrefutably, there is a civil rights conspiracy, the appellant is already the prevailing party at law and for monetary damages and costs on this issue. FROST and YOUNG WILLIAMS are left only to argue whether the petition or first amended petition sufficiently allege their role at the pleading stage. The appellant is the prevailing party against DON JORDAN FORMER SECRETARY OF SRS, SRS Caseworker DAVID WEBER, JOHN BADGER the former SRS General Counsel, the defendant private attorney CRAIG E.  COLLINS, and the non damages defendants HAZLETT, Gayle B. Larking, Boddington and Sharp under Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (C.A.10 (Kan.), 1998) for the 42 USC § 1983 food stamp claim and the

42 USC § 1983 Abuse of Process claim.  

The appellant’s petition and amended petition state the required pleading elements in the detail required to support the civil rights conspiracy allegations under what the parties perceived was Bell Atlantic v. Twombly, No. 05-1126, 2007 WL1461066 (May 21, 2007) elimination of Fed. R. Civ. P. Rule 8 Notice Pleading.

The supporting averments of facts meet the current controlling pleading standard for each count (42 USC § 1983 Abuse of Process and 42 USC § 1985(3) Civil Rights Conspiracy to violate 42 USC § 1981) against YOUNG WILLIAMS, PC directly and against each co-conspirator for whom YOUNG WILLIAMS, PC is liable under 42 USC § 1985(3).

In Merryfield v. Turner, 2009 U.S. Dist. LEXIS 61584, 5-7 (D. Kan. 2009) the court stated:

“The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom. Griffin, 403 U.S. at 102-03, 91 S.Ct. at 1798-99 (1971)…conspiracies motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Griffin, 403 U.S. at 101-02, 91 S.Ct. at 1798.”

 

Merryfield v. Turner, 2009 U.S. Dist. LEXIS 61584, 5-7 (D. Kan. 2009)

YOUNG WILLIAMS argued in trial court and the court adopted respectfully in error that no conspiracy exists unless every alleged conspirator commits every element of civil rights conspiracy under 42 U.S.C. § 1983 conspiracy, and 42 U.S.C. § 1985 conspiracy even though their counsel has repeatedly been briefed that under 42 U.S.C. § 1983 and the controlling authorities for this court, a conspirator need not commit the injurious act to be liable for participating in the conspiracy:

“The contention that a conspiracy existed which deprived the petitioner of rights guaranteed by federal law makes each member of the conspiracy potentially liable for the effects of that deprivation. Liability arises from membership in the conspiracy and from traditional notions that a conspirator is vicariously liable for the acts of his co-conspirators. Liability does not arise solely because of the individual's own conduct. Some personal conduct may serve as evidence of membership in the conspiracy, but the individual's actions do not always serve as the exclusive basis for liability. It is therefore not sufficient justification to say that a claim against a particular defendant must be dismissed because that defendant would be immune from liability for his own conduct. Additional inquiry is required to determine whether the immunity extends also to participation in a conspiracy. For example, private individuals may not be held liable under Section 1983 for their conduct. They may nevertheless be held liable if they conspired with a person who acted under color of state law.” (citations omitted).

 

Slavin v. Curry, 574 F.2d 1256 at 1263 (5th Cir. 1978)

The petition and first amended petition allege plausible civil rights conspiracy claims against FROST, first writing a letter with the non defendant state actor SRS Regional Counsel Matthew W. Boddington to keep Huffman from being eligible to take the bar exam because she had won an appeal of an SRS Agency decision while advocating to protect her daughter from SRS Agency documented abuse, then manufacturing false billing records at the direction of the non defendant state actor Attorney Disciplinary Prosecutor Gayle B. Larkin to further build on the group concerted effort to prevent Huffman from being eligible to take the bar exam in Kansas and then Nebraska with Disciplinary Prosecutor Gayle B. Larkin Huffman stating Huffman was unfit because she had allowed the appellant while an attorney in the W.D. of Missouri to represent her, Disciplinary Prosecutor Gayle B. Larkin having herself written a false report to the Kansas Supreme Court to cause the appellant’s disbarment, then FROST conspired (through his current counsel J.Steven Pigg) with  CRAIG E. COLLINS (defaulting on these claims in this court) to compromise Donna L. Huffman’s defense of FROST’s invalid debt collection action and obtain Huffman’s sanctioning for CRAIG E. COLLINS failure to deliver documents the appellant witnessed Huffman serving on CRAIG E. COLLINS and the state trial court judge in the action where Huffman was still sanctioned:

“The complaint also alleges a pattern of harassment by several officers over a period of months. It is a challenge to imagine a scenario in which that harassment would not have been the product of a conspiracy. Under Twombly, all plaintiff needed to allege was a plausible account of a conspiracy. See 550 U.S. at 556. This complaint goes well beyond that”

 

Geinosky v. City of Chicago at pgs. 11-13(7th Cir., 2012).

The Tenth Circuit threshold for liability as a co-conspirator is low:

“The fact that some of the participants might not have forseen the exact nature of the deprivation is of no moment:

        A plaintiff seeking redress need not prove that each participant in a conspiracy knew the "exact limits of the illegal plan or the identity of all the participants therein." Hoffman-LaRoche, Inc. [v. Greenberg], 447 F.2d at 875 [ (7th Cir.1971)].”

 

Snell v. Tunnell, 920 F.2d 673 at 702 (C.A.10 (Okl.), 1990).

 

The fact that FROST and YOUNG WILLIAMS willingly joined as latecomer co-conspirators subjects the latecomer defendants to liability for all acts during conspiracy's existence. Dextone Co. v. Building Trades Council of Westchester (2d Cir. 1932).

            The petition and first amended petition adequately pleads FROST and YOUNG WILLIAMS are liable for the earlier acts of the civil rights co-conspiratos:

“Finally, the Court also concludes that plaintiffs have pleaded sufficient facts from which one could plausibly infer that Huntsman joined the conspiracy with knowledge of the prior conduct and with the intent to pursue the same objectives, thereby allowing Huntsman to be held liable for the pre-1999 period on an alternative basis. See, e.g., Havoco of Am., Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir.1980). In that regard, the fact that Bayer has indicated that the same conspiracy extended back to 1994 raises the plausible inference that the pre-1999 and post-1999 conspiracies alleged by plaintiffs were connected.”

Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), 683 F. Supp.2d 1214 at 1224 (D. Kan., 2010)

42 U.S.C. § 1985(2) Conspiracy Liability: The petition and first amended petition allege retaliation against the appellant for testifying in USA v. Carrie Neighbors and Guy Neighbors, KS Dist. Ct. Case No. 07-20124, 08-20105, 07-20073. FROST and YOUNG WILLIAMS are alleged to be in a continuing civil rights conspiracy with DON JORDAN FORMER SECRETARY OF SRS , JOHN BADGER FORMER CHIEF COUNSEL.

Authority: plaintiff’s claims meet the standing requirements and plead the elements required to state sufficient claims for 42 U.S.C. § 1985(2) Conspiracy Liability

“[U]nder § 1983 and § 1985, we have generally held a federal conspiracy action brought under either of these statutes requires at least a combination of two or more persons acting in concert and an allegation of a meeting of the minds, an agreement among the defendants, or a general conspiratorial objective.”

 

Brooks v. Gaenzle, 614 F.3d 1213 at 1227-8 (10th Cir., 2010).

            The appellant’s allegations against FROST’s and YOUNG WILLIAMS’ continuing civil rights conspiracy co-conspirators DON JORDAN FORMER SECRETARY OF SRS, and JOHN BADGER FORMER CHIEF COUNSEL are the form of retaliation for testimony in the Kansas District Court and conduct to deter the appellant’s testimony as a prosecuting witness against the Kansas SRS and its officials that meets the conduct requirements for pleading 42 U.S.C. § 1985(2):

“3.The district court dismissed this claim on the ground that "Plaintiffs do not contend they were deterred from testifying," but "rather, they contend that they [were] retaliated against for having cooperated with the authorities." The statute, however, does forbid conspiracies to injure a witness "in his person or property on account of his having so attended or testified." 42 U.S.C. § 1985(2); see Haddle v. Garrison, 525 U.S. 121, 125 (1998).”

 

L.L. Nelson Enters., Inc. v. Cnty. of St. Louis  at fn 3 (8th Cir., 2012).

There is no class-based animus required. Keating v. Carey, 706 F.2d 377 at 385 (C.A.2, 1983)

42 U.S.C. § 1985(3) Conspiracy Liability: As a white man advocating in federal court on behalf of an African American’s racial discrimination claims, the appellant is squarely within the Equal Protection under the Fourteenth Amendment guaranteed by 42 U.S.C. § 1985(3) and actionable under 42 U.S.C. § 1983:

“First, the plaintiffs clearly constitute a class of Black and White civil rights workers and White supporters of their efforts and, thus, fall at the core of section 1985(3)'s concern. Plaintiffs Abbott and Booker were prominent in the Emergency Committee on the Transportation Crisis, a coalition of Black and White neighborhood groups opposed to construction of superhighways through the District's residential areas, because of the consequent displacement of many poor Blacks; plaintiffs Booker and Eaton were involved in organization of the Black United Front, a civil rights group. Plaintiff Hobson, an active member of the peace movement, also worked for and supported the civil rights efforts of her husband, Julius Hobson. Many of these plaintiffs also participated in protests against the Vietnam War, in part "to heighten the awareness of the public on particularly the racial miseries of the war ... [meaning] that minority youths were disproportionately being drafted and fighting for the war." 59 At the same time, the plaintiffs who were primarily involved with antiwar groups, such as the Washington Mobilization Committee and the New Mobilization Committee, worked with Black civil rights groups on peace marches 60 and otherwise, both to support civil rights generally and to increase Black awareness of the high casualty figures among Black soldiers and the perceived need, as a result, to participate in antiwar protest. Given the undisputed evidence that the antiwar plaintiffs and civil rights plaintiffs joined together to seek common goals of concern to each, we find they represent, at a minimum, a class of civil rights workers and their supporters at the core of section 1985(3)'s concerns.

        It is equally clear that the FBI defendants' conspiracy was directed against plaintiffs because of their participation in these very activities. Considerable testimony described efforts by the FBI to drive a wedge into this alliance between civil rights groups and peace groups.”

 

Hobson v. Wilson, 737 F.2d 1 at pg. 22-23 (C.A.D.C., 1984).

Under Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), section 1985(3) does not require a "specific" or "willful" intent to harm class members, as this Court noted in Griffin, 403 U.S. at 102 n.10. At the same time, Section 1985(3) is violated only when an individual acts, with or without "scienter," 403 U.S. at 102 n.10, for the purpose of injuring a member of a protected class.  The “discriminatory purpose" relevant for the Equal Protection Clause and Section 1985(3) "implies more than intent as volition or intent as awareness of consequences.  It implies that the decision maker * * *selected or reaffirmed a particular course of action at least in part because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r v. Feeney, 442 U.S. at 279 (citation and footnote omitted).  That is what Griffin meant by its requirement that there must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." 403 U.S. at 102 & n.10.

The plaintiff’s First Amended complaint has adequately alleged that FROST’s and YOUNG WILLIAMS’ conduct in concert with continuing civil rights conspiracy co-conspirators DON JORDAN FORMER SECRETARY OF SRS, JOHN BADGER FORMER CHIEF COUNSEL, DAVID WEBER SRS CASEWORKER, to meet the pleading requirements for FROST’s and YOUNG WILLIAMS’ liability under Section 1985(3).

IX.             Whether A State Attorney Discipline Administrator Can Be Subjected to Prospective Injunctive Relief Under 42 USC § 1983 Against Continuing Violations of Federal Law

 

In order to evaluate whether the plaintiff has stated a claim for injunctive relief under 42 U.S.C. § 1983 against a Kansas State office holder acting in his official capacity, this court is required to assume that the facts alleged by the plaintiff are true. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986) and  “the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), Curley v. Perry , 246 F.3d 1278, 1281 (10th Cir. 2001).

The appellant served the first amended petition on the defendants including FROST, YOUNG WILLIAMS and HAZLETT on 4/18/2011 (Vol. IV Pgs. 278-313). The appellant opposed HAZLETT’s motion for dismissal based on preclusion and standing arguments in an answering memorandum filed 6/16/2011(ROA, Vol. VII p. 502-509).

The trial court granted HAZLETT’s motion without a request for hearing and without a hearing. (ROA, Vol. I p. 1-15).

HAZLETT and the court were respectfully in error that the appellant failed to adequately state a claim for prospective injunctive relief with sufficient detail. This confusion seems to be over averments of HAZLETT’s past conduct not being as detailed as claims for monetary damages on past conduct alleged against the other defendants. The court also appears confused on the element of likelihood of success, in that contrary to the court’s order and judgment, the appellant was not seeking Gayle B. Larkin’s evidence from the extrinsic fraud in the report to the Kansas Supreme Court to procure the disbarment for a future rehearing.

The appellant had that rehearing during the proceeding in trial court and the Kansas SRS defendants did not turn over the exculpatory evidence to the court’s chief counsel.  The appellant is seeking the record for application to other jurisdictions that observe laws protecting against child trafficking and follow US Supreme Court decisions .HAZLETT is immune from monetary damages and the court in Briggman v. Virginia, Dept. of Social Servs. determined that even adequately alleging past injuries by the defendants did not state a claim for injunctive relief which instead requires allegations of likely future violations. See Briggman v. Virginia, Dept. of Social Servs., Dcse, 526 F.Supp.2d 590 at 603-604 (W.D. Va., 2007).

HAZLETT and his staff including Gayle B. Larkin and Rex Sharp are specifically identified as participating in the civil rights conspiracy and of identified conduct with the charged defendants, but no claim is made against HAZLETT, Larkin or Sharp for civil rights conspiracy or for the felony civil rights conspiracy statutes 18 U.S.C. §§ 241, 242, and 245 for the post disbarment conduct of HAZLETT  and his employees Larkin and Sharp as detailed in the petition and first amended petition. 

The pressing state interest argument used in Landrith v. Hazlett, 170 Fed. Appx. 29 (10th Cir. 2006) to deny the appellant injunctive relief is inapplicable to the trial court’s dismissal of the appellant’s current claim, see Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683 at 687 (C.A.10 (Utah), 1992) and B-S Steel of Kansas, Inc. v. Texas Industries, 439 F.3d 653 at 663 (10th Cir., 2006) and not an issue to the prospective injunctive relief in the present action where the appellant is not seeking the State of Kansas to reinstate him.

The past decision (procured in part by HAZLETT’s counsel’s misrepresentation of fat to the Tenth Circuit) does not meet the identity requirement in the first element of the Tenth Circuit’s collateral estoppel or issue preclusion requirements in Estate of True v. C.I.R., 390 F.3d 1210, 1232 (10th Cir.2004): “(1) the issue previously decided is identical with the one presented in the action in question,”. HAZLETT’s motion did not identify any issues from past cases necessary to determine whether HAZLETT is likely to misuse his office in furtherance of a civil rights conspiracy by depriving the appellant of Due Process in other jurisdictions where the appellant is seeking admission: “…relitigation of an issue presented and decided in a prior case is not foreclosed if the decision of the issue was not necessary to the judgment...."); 18 Federal Practice & Procedure: Jurisdiction § 4421” Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683 at 687 (C.A.10 (Utah), 1992).

The appellant’s first amended petition raised new facts about new violations of his civil rights from an ongoing conspiracy involving HAZLETT, Larkin and Sharp. The Tenth Circuit recognizes that in matters related to a continuing course of conduct, the passage of time may prevent earlier decided issues from determining the outcome of a current case:

“Other jurisdictions have recognized "the principle that matters adjudged as to one time period are not necessarily an estoppel to other time periods." Int'l Shoe Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449, 455 (1st Cir.1963); see also Harkins Amusement Enters., Inc. v. Harry Nace Co., 890 F.2d 181, 183 (9th Cir.1989) (rejecting idea that collateral estoppel barred a suit for conspiracy where "the plaintiff alleges conduct that occurred in a different time period"). This is particularly true "when significant new facts grow out of a continuing course of conduct." Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 477 (3d Cir. 1997).

 

B-S Steel of Kansas, Inc. v. Texas Industries, 439 F.3d 653 at 663 (10th Cir., 2006).

 

            Res judicata does not bar claims against subsequent conduct, consistent with the US Supreme Court decision on subsequent antitrust conduct being actionable in Zenith Radio Corp v. Hazeltine Research, Inc, 401 U.S. 321 at 340, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971).

            New sets of facts arising in later incidents are described in the first amended petition and give the appellant new claims. See  46 Am. Jur. 2d 841-42, Judgments § 567 (1994) (An ''earlier adjudication is not permitted to bar a new action to vindicate rights subsequently acquired, even if the same property is the subject matter of both actions. . . . [A] judgment is not res judicata as to rights which were not in existence at the time of

the rendition of the judgment'').

“The doctrine of res judicata does not bar a party from bringing a claim that arose subsequent to a prior judgment involving the same parties. Accordingly, the claim is not precluded by the settlement and dismissal of those claims.”

 

American Home Assur. Co. v. Chevron, USA, Inc., 400 F.3d 265 at fn 22 (5th Cir., 2005).

             HAZLETT never obtained immunity for their continuing and subsequent acts to injure the appellant for his protected speech on behalf of James L. Bolden, David M. Price, Price’s American Indian son and Donna L. Huffman:

“Even if the dismissal had been with prejudice, the district court would have been mistaken to dismiss the second suit on the ground of res judicata. Res judicata does not bar a suit based on claims that accrue after a previous suit was filed. Doe v. Allied-Signal, Inc., 985 F.2d 908, 914 (7th Cir.1993); Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 646 (7th Cir.1986); Rawe v. Liberty Mutual Fire Ins. Co., 462 F.3d 521, 530 (6th Cir.2006); Computer Associates Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (2d Cir.1997); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992). It does not matter whether, as in the case of harassment, the unlawful conduct is a practice, repetitive by nature, see National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117-19, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), that happens to continue after the first suit is filed, or whether it is an act, causing discrete, calculable harm, that happens to be repeated. The filing of a suit does not entitle the defendant to continue or repeat the unlawful

conduct with immunity from further suit. Lawlor v. National. Screen Service Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).” [Emphasis added]

 

Smith v. Potter, 513 F.3d 781 (7th Cir., 2008). Subsequent claims are permitted. See Sherrod v. School Board of Palm Beach County, No. 07-13747 (11th Cir. 4/7/2008) (11th Cir.,  2008). Continuing conduct described in the petition is also not precluded:

“In Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955), the Supreme Court expressly rejected the argument that resolution of a res judicata issue should turn on "whether the [parties'] conduct [is] regarded as a series of individual torts or as one continuing tort." Id. at 328, 75 S.Ct. 865. Instead, the Court looked to the character of the conduct, i.e. the specific

factual basis, of both suits in order to determine if the same cause of action existed.”

 

            Single Chip Systems Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052 at 1064-65 (S.D. Cal., 2007).

CONCLUSION

Whereas for the above stated reasons, the appellant respectfully requests that the court reverse the trial court on the above stated issues and remand the claims against the appellees for pretrial conference and a jury trial.

 

Respectfully submitted,

 

_______________

Bret D. Landrith

Appellant appearing Pro se

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

No. 107959

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

______________________________________________________

 

BRET D. LANDRITH,

Appellant/Plaintiff

 

v.

 

BRIAN FROST, and

YOUNG WILLIAMS P.C.,

STANTON A. HAZLETT, Disciplinary Administrator

(in his official capacity)

Appellees/Defendants

 

_____________________________________________________

 

APPELLANT BRET D. LANDRITH’S

SUPPLEMENTAL APPENDIX

_____________________________________________________

 

Appeal from Shawnee County Court Case No. 10-C-1436, Division 6

Hon. Judge Larry Hendricks Presiding

______________________________________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Aplt Apdx 0001

 

“13       MR. LANDRITH: Yes, your Honor. I was going t o

14              say Mr. Pigg actually brought it to my attention he had

15              made that order in this response. I had circulated before

16              calling or seeking to subpoena Ms. Huffman, limited scope,

17              and I proposed that we enter an order that we limit our

18              questioning today of Ms. Huffman, who's also a valuable

19              witness to all parties and other rest of the complaint

20              but just to t he issues relevant to disqualifications.

 

                                                                             6

21              JUDGE HENDRICKS: Well , first of all ,

22              Mr. Landrith, we -- I never had any notice we were going

23              to have witnesses. Normally this is argument of a motion,

24              so no one has objected, I'm going to allow her to testify,

25              but if she gets on the stand to testify then whatever

 

                                                                             7

  1             she's testified to she's open to cross-examination by

  2            everyone that's       here so - ­

  3             MR. LANDRITH: Yes, your Honor. My concern was

  4             that it easily converts the motion for disqualification to

  5             a motion to summary judgment, and I would request

  6             additional discovery for that. But anyway,I will

  7             proceed, your Honor.

  8             JUDGE HENDRICKS:       Well , he has - - are you

  9             asking Mr. Frost? He has a motion  to dismiss on all the

10             pleadings in front of the Court.

11             MR. LANDRITH:       Yes .

12          JUDGEHENDRICKS: And if we have

13          information outside of t he pleadings that you're

14          presenting today then, yeah, he could ask for it to be

15          changed for a motion for summary judgment if any

16          information is outside the pleadings and he requests me to

17          consider that.

                                                         8”

 

(ROA Vol. XV Pgs. 6,  7, and 8)

 

 

 

 

 

 

 

Aplt Apdx 0002

 

 

“11.The standing requires that the plaintiff allege such

12            a personal stake in the outcome of the controversy as to a

13             warrant indication of jurisdiction and to justify the

14            exercise of the court's remedial powers on his or her

15            behalf.            The causal connection must be establi shed if the

16            challenge is conduct that was the proximate cause of the

17            alleged injury.

18            The case before the court today in hearing the

19            arguments and reviewing all of t he pleadings herein the

20            court can find no causal connection between the lawsuit

21            that Mr. Frost filed against Ms. Huffman and Landrith' s

22            claimed loss.            I heard the testimony of Ms. Huffman of

23              what happened in that case. I've read that Mr. Landrith

24             in Mr. Landrith's pleading he alleges that he anticipated

25            some type of contract or business expectancy as a result

 

                                                                                                                        63

1           of some type of real estate business that Ms. Huffman was

2           intending to format some point in time.”

 

(ROA Vol. XV Pgs. 63 and 64)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Aplt Apdx 0003

THE COURT:            I think the Supreme Court

of the United States has a recent case, two of them,

on a need to enforce specificity in pleading and

that' s fairly recent in the last six to eight months.

Certainly so on fraud claims, and I'm not sure how it

affects 1983, but I tried to come up to date on 1983

and it seems to me, to conspire, you have to have

somebody to conspire with. It can't just be a person

out there that is accused of conspiring if there's no

evidence of conspiracy .

PLAINTIFF            LANDRITH:            Your Honor , I think

that you probably hit a very important issue

that would help Kansas practitioners beyond the civil

rights ' aspect of it . That 's an issue that 's been

very thoroughly briefed by the defendants and myself.

I point out, compare and contrast, differentiate,

 

                                                                                                                                    29

Bell versus Twombly, the case you're talking about

which we've heard a lot ,requiring more specific

information in a pleading about co-conspirators. And

subsequent to that case, I think that the Tenth

Circuit            saw in that grounds for taking Twombly's idea

of plausibility to do what a trial court does

naturally. Which is, there is a public policy motive

to restrict down, early in a case, accusations that

may not actually state a claim or that evidence is           

really insufficient to, even if it meets the

elements.

The Twombly court was addressing antitrust

conspiracy where it was not alleged, like in this

case, that specific individuals joined and agreed and

participated in the conspiracy. The Twombly case

addressed with a law firm looking at prices moving at

the same time by competitors and seeing in there what

has been accepted to be sufficient for antitrust

conspiracy in the past , this idea of behavior that

shows that a conspiracy to be inferred from it. It

wasn't            an expressly alleged conspiracy case, and it

had to do with phone companies, and there weren't

particular phone companies alleged to be in a

conspiracy to fix prices.

The Tenth Circuit took from that the language

 

                                                                                                                                    30

that the U.S. Supreme Court used to move away from

Rule 8 decisions, Conley in the past, to look at this

word and I brought it up. It wasn't in your opinion

that you read off but I brought it up in my

objection.

 

 

You were making a plausibility ruling. You were

saying that it may have the elements, A, B, C, and D,

but you're not seeing, and you expressed today with

your questions about the complaint, how any of this

fits together or how it could be a conspiracy. Those

are -- that's a criticism of the complaint that goes

to its plausibility nature and the Tenth Circuit took

that and I think that they—I would choose them to

be probably more on a conservative side from U.S.

federal court circuits, but they were looking at a

prisoner' s civil rights' case, and that 's the other

case I mentioned in the objection. And they found

that, well, you may have stated a complaint under the

Bill of Rights Section 8, you know, bad treatment in

prison because you didn't get a vaccine you needed,

but it 's not plausible that this was done for civil

rights ' discrimination and they were promptly

reversed on that and I think that that reversal is

looked at a lot to show that we didn't really change

the pleadings' standards. We changed them in a

 

 

                                                                                                                                    31

narrow area where the court justified that antitrust

is very , very expensive.            It 's very discovery

intensive . There's been a history of criticism that

the policing through private civil litigation

antitrust is a very harmful thing on the economy and

there are reasons that they differentiated that from

just a normal claim. I have not seen a lot of cases

that show bright lines on where plausibility is or isn' t.

I 've mentioned some, and I think it 's adequately

briefed in my response, that some circuits are saying

that they are tightly limiting that plausibility like

I'm describing directly from the text of theU.S.

Supreme Court and other circuits are using it more

like you're using it and I don't think that Kansas

has resolved any of these -- I mean, the changes

since then.

I started relying, in answer to both of these

dismissals , on a case that you succeeded your

predecessor judge on and I think that that's my

timeliness argument for dismissal on the pleadings or

motion to dismiss. There's been no discovery, no

chance to develop the case and refine it further like

I would if I had evidence, and I'm hearing you

faulting the case for not having the evidence. And

                                                                                                                                    32

 

to me, I think that that's the Kansas Supreme Court's

reasoning behind its decision that dismissal at that

stage was inappropriate for the school finance case.

But I think that decision fits very closely with

Circuit U.S. Courts of Appeals looking at Bell versus

Twombly and then the Erickson case in the Tenth

Circuit I was talking about.

So the circuits that are probably more favorable

at the initial stages to civil rights' litigant, I

believe, would follow something very close to the

Kansas Supreme Court . You're differentiating this

case from that decision by showing that the pleadings

are closed, that you had some other elements that you

put in your decision differentiating it from that

early stage of the case. But I think that if you

plead the elements and you have some supporting

facts, which all the parties have criticized me for,

but those facts are circumstantial in nature, they

are not direct evidence. There actually is a

contract between SRS and Young Williams, but like you

pointed out, it's their normal legal activity.

But I show a lot of facts that have to do with

circumstantial support for the existence of some bad

actors and a bad motive conspiracy, of which, I get

injured from. To me, it is -- it 's not alien in

                                                                                                                                    33

civil rights, it 's exactly the Mississippi

sub-verdancy [soverignity ] conspiracy where we trade information

across state agencies and local sheriff's departments

and stuff to make sure that Mississippi is not

subject to some federal laws we don't like.

 

(ROA Vol. XIII Pgs. 1-54 )

 

CERTIFICATE OF SERVICE

 

I certify I have served a true copy of the appellant’s opening brief with appendix to counsel for the appellees via hand delivery on July 30, 2012:

 

BRIAN FROST through his attorney J. Steven Pigg, FISHER PATTERSON, SAYLER, & SMITH, LLP  PO Box 949, Topeka, KS 66601-0949.

 

YOUNG WILLIAMS PC through their attorneys Amy Raymond and Robert E. Sanders (pro hac vice), 120 SE 6th Street Suite 106, Topeka, KS 66603. Phone 785-296-2376.

 

Defendant STANTON A. HAZLETT through his attorney Steve Phillips #l4l30, Assistant Attorney General, l20 SW. 10“ Street, Second Floor. Topeka, Kansas 66612.

785-296-2215.

 

 

 

 

_______________

Bret D. Landrith

Appellant appearing Pro se

 

 

 

 

 

 

 

 

 

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Bret Landrith,
Jul 30, 2012, 1:35 PM
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