Petition for Writ of Certiorari — Bradrick J. Collins, Petitioner v. Baylor University, et al.
Supreme Court briefNov 17, 2017
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No.
In The
Supreme Court of the United States
BRADRICK J. COLLINS,
Petitioner,
V.
BAYLOR UNIVERSITY; DEAN ROBIN K.
ROGERS; ASSISTANT PROFESSOR. HELEN
HARRIS,
Respondent.
On Petition for Writ Of Certiorari To The
United States Court Of Appeals for The Fifth
Circuit
PETITION FOR WRIT OF CERTIORARI
Bradrick J. Collins
P.O. Box 225071
Dallas, TX 75222
469-865-3290
Pro Se
November 17, 2017
RECEIVED
DEC 12 2017
OFFICE OF THE CLE<
SUPREME c )t y..
QUESTIONS PRESENTED
Does the Due Process Clause of the 5th
Amendment to the U.S. Constitution and 28
U.S.C. § 455 require recusal when the
Magistrate is an employee or former employee
of Defendant (whom sought to cover over the
employment relationship); the District Judge
has an Endowment Fund (minimum amount
$50,000.00) at Defendants Institution; and a
District Judge condoning "[p]erhaps the most
offensive and inflammatory racial slur in
English,
a word expressive of racial hatred
and bigotry" McGinest v. GTE Service Corp.,
360 F.3d 1103, 1116 (2004)?
...
Did Congress pursuant to 28 U.S.C.
636(b)(1)(B) give Magistrate Judges the
authority to decide clispositive matters absent
consent of the parties and does the District
Judge failure to conduct de novo review of
objections made to a Magistrate's Report &
Recommendations constitute reversible error
asstated within Wimmer v. Cook, 774 F.2d
68, 76 (1985)?
Whether a United States Court of Appeals
refusal to apply a "standard of review" when
affirming a: (1) district court grant of
summary judgment (2) denial of a preliminary
injunction and (3) denial of judicial recusals
amounts to a blatant disregard for the United
States Supreme Court Precedent?
Does an appeals court have subject matter
jurisdiction pursuant to 28 U.S.C. § 1291
when the record indicates that neither party's
motion for summary judgment were "actually"
before the District Court when it issued its
final judgment, or does the final order lack
finality thus depriving the appeals court of
appellate jurisdiction as stated within
Witherspoon v. White, 111 F.3d 399, 403?
"Prior to denying a motion for preliminary
injunction, must a District Court hold a
hearing as required by Fed. R. Civ. P. 65 and
offer findings of fact and conclusion of law to
justify denial", so that "[w]e must know what
a decision means before the duty becomes ours
to say whether it is right or wrong"? Ali v.
Quarterman, 607 F.3d 1046, 1048 (5th Cir.
2010); United States v. Chicago, M., St. P. &
Pacific R. Co., 294 U.S. 499, 511 (1935).
Should the District Court have deferred ruling
on the Motion for Summary Judgment when:
The Plaintiff invoked federal rule of civil
procedure 56(e); informed the district court
that defendants were not in compliance with
the district court's local rules requiring
mandatory disclosures; and informed the
district court that as many as six motions to
compel discovery were outstanding and never
ruled on by the district court prior to granting
summary judgment?
PARTIES TO THE PROCEEDING
The parties to the proceedings in the United
States Court of Appeals for the Fifth Circuit were
Petitioner Bradrick J. Collins, and Respondents;
Baylor University, Dean Robin K. Rogers, and
Assistant Professor Helen Harris.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................i
PARTIES TO THE PROCEEDINGS ...................iii
TABLE OF AUTHORITIES ...............................v
OPINIONS BELOW ..........................................1
JURISDICTION ...............................................1
STATUTE AND CONSITUTIONAL PROVISIONS
INVOLVED.....................................................1
INTRODUCTION.............................................2
STATEMENT OF THE CASE .............................4
REASONS FOR GRANTING THE PETITON .......8
I.
Denial of Due Process ..........................9
Powers Granted to Magistrates via
Congress.
Due Process Requires a Neutral and
Detached Judge.
Article III Jurist Condone Use of the
Word "Nigger".
Too Much Fellowshipping of the Ring
Fraudulent Reports and Orders
II.
28 U.S.C. 636(b)(1)(B) ........................20
III. Appeals Court Failure to Apply Some
Standard of Review ............................21
IV.
28 U.S.C. § 1291 Requires Finality .......23
Boilerplate Language
Defendants MSJ Not Before the Court
The 5th Circuit Court of Appeals Do Not
Sit to Hear Cases De novo.
V.
Implied Hearings on Motions for
Preliminary Injunctions ......................30
VI.
Summary Judgment
A Lethal Weapon
-
31
A. Diligent Pursuit of Discoverable
Information.
VII.
CONCLUSION ..................................40
Appendix .......................................1-60
Court of Appeals Denial of Preliminary
Injunction (February 13, 2017) .........App. 1
Court of Appeals Order Carrying Motion to
Strike and Motion to Supplement the Record
iv
on Appeal with the Case (May 08, 2017)
App.3
Court of Appeals Decision Affirming Summary
Judgment (July 20, 2017) ...................App. 5
Court of Appeals Order Denying Petition for
Rehearing En Banc (August 29, 2017). App. 8
District Court Order Adopting the Magistrate
Report and Recommendation (September 20,
2016) .............................................App. 10
Complaint of Judicial Misconduct ......App. 29
TABLE OF AUTHORITIES
Abercrombie & Fitch Stores. Inc. v. Am. Eagle
Outfitters Inc., 280 F.3d 619, 629 (6th Cir. 2002)... 21
Alexander v. Primerica Holdings, Inc., 10 F.3d 155,
162 (3d cir. 1993) ..............................................15
All v. Quarterman, 607 F.3d 1046, 1048 (5th Cir.
2010) .............................................................21
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255
........................26
Arango v. Guzman Travel Advisors Corp., 621 F.2d
1371, 1374 (5th Cir. 1980) .................................23
Branch v. Martin, 886 F.2d 1043 .......................10
Brown v. Thompson, 430 F.2d 1214, 1216 ...........36
Burleson v. Glass, 268 F.Supp.2d 699 (W.D. Tex.
2003) ............................................................22
V
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
.
36
Cool Fuel Inc., v. Connett, 685 F.2d 309 ..............17
Cordrey v. Euckert, 917 F.2d 1460, 1465 (6th Cir.
1990), cert. denied . .......................................... 20
Daso v. The Grafton School, Inc. 181 F.Supp.2d 485,
493 (D.Md.2002) .............................................14
Dean v. Riser, 240 F.3d 505, 508 (51h Cir. 2001)
...
19
Dickerson v. Zurko, 527 U.S. 150, 152-61 ............19
Gomez v. United States, 490 U.S. 858, 868 (1989)
...................09,13
Greiner v. City of Champlin, 152 F.3d 787, 789 (91h
Cir. 1982) ......................................................17
Harris v. Forklift Systems, Inc., 510 U.S. 17. ........05
Hayut v. State University of New York, 352 F.3d 733
(2003) ............................................................05
Hazel-Atlas, 322 U.S. 246 .................................17
Hernandez v. Estelle, 711 F.2d 619 ....................10
Hollingsworth v. Perry, 558 U.S. 183, 191 ...........33
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76 (2d
Cir. 2001) .......................................................05
In re Chevron U.S.A., Inc., 121 F.3d 163, 165 ......14
In re Kaplin Higher Educ. Corp., 235 S.W.3d 206
(Tex. 2007) .......................................................4
vi
International Shortstop, Inc., 939 F.2d 1257, 1264
(1991) ..................................................22, 29, 31
Kamps v. Baylor, 135 S.Ct. 2380 (2015) ..............10
King v. California Co., 224 F.2d 193, 196 (5th Cir.
1955) ........................................................25, 27
Krull v. SEC, 248 F.3d 907, 914 (9th Cir. 2001) .....26
Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163,
164 ................................................................12
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) .............................................21, 22, 27
McGinest v. GTE Service Corp., 360 F.3d 1103, 1116
(2004) ............................................................14
Navellier v. Sletten, 262 F.3d 923, 944 ................26
Nicholas Acoustics & Speciality Co.,v, H&M Co. Inc.,
695 F.2d 839, 846 ............................................08
Nissho-Iwai American Corporation v. R. Kline, 845
F2d 1300, 1306. (1996) .....................................05
NLRB v. Foundry Div. of Alcon Indus., Inc., 260 F.3d
631, 635 n.5 (6th Cir. 2001) ...............................14
O'malley v. United States Fidelity Guar. Co., 776
F.2d 494, 499 .................................................36
Patterson v. Mobil Oil Corp., 335 F.3d 476 (2003)
...................14,21
VII
Patchick v. Kensington Publishing Corp., 743 F.2d
675, 677 (9th Cir. 1984) ....................................23
Payne v. Borg 982 F.2d 335, 338 (9th Cir. 1992)
...
26
PCI Transp., Inc. v. Fort Worth & W.R.R. Co., 418
F.3d 535, 545 (5th Cir. 2005) .........................21, 28
Perry v. Singletary, 49 F.3d 1483, 1489 (11th Cir.
1995) .............................................................11
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133,150 ....................................................14, 22
Richardson v. Quarterman, 537 F.3d 466, 475-76 (5th
Cir. 2008) .......................................................17
Salve Regina College v. Russell, 499 U.S. 225, 23233 .................................................................20
Southwest Voter Registration Educ. Pro. v. Shelley,
344 F.3d 914, 917 (9th Cir. 2001) ........................26
Stanley v. Trinchard, 500 F.3d 411, 418 (51h Cir.
2007) ............................................................20
Stillman v. Travelers Ins., Co., 88 F.3d 911, 912
(1996) ..................................................21, 25, 27
Tolan v. Cotton, 572 U.S.
(2014) ............8, 20, 26
-
Turner v. Pleasant, 663 F.3d 770, 7777 (5th Cir.
2011) .............................................................08
United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir.
1981) .............................................................10
viii
United States v. Felder, 548 A.2d 57, 63-64 (D.C.
1988) .............................................................20
United States v. Raddatz, 447 U.S. 667, 673 (1980)
........................17
Vandeventer v. All American Life & Cas. Co., 101
S.W.3d 703, 719 (Tex. App. 2003) .......................03
Ward v. Monroeville, 409 U.S. 57 .......................11
Wilkenfield v. Powell, 577 F. Supp. 579, 583 ........04
Wimmer v. Cook, 774 F.2d 66, 67 (1985) .............18
Witherspoon v. White, 111 F.3d 399 .........22, 23, 25
STATUTES
28 U.S.C. § 455 (a) ...........................................15
28 U.S.C. § 636 (b)(B)(1) ..............................19, 36
ix
OPINIONS BELOW
The court of appeals opinion is unpublished. App. 1.
The District Court decisions denying recusal is found
at ROA.3025, ROA.3817 & ROA.4069. The District
Court Opinion adopting the Magistrate's report and
granting Respondent's Motion for Summary
Judgment is found at App. 10.
JURISDICTION
The Court of appeals entered judgment on
July 20, 2017. The court denied a timely petition for
rehearing en banc on August 29, 2017. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution "[r]equires "due process of law"
be part of any proceeding that denies a citizen
"life, liberty, or property .. .".
42 U.S.C. § 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...".
3. 42 U.S.C. § 2000d provides, "no person in the
United States shall, on the ground of race,
color, or national origin, be excluded from
participation in, be denied the benefits of, or
be subjected to discrimination under any
program or activity receiving federal financial
assistance."
INTRODUCTION
Petitioner, having completed one year of the
Wayne State University Graduate School of Social
Work boasting a 3.68 G.P.A., was admitted into the
Baylor University School of Social Work (BSSW)
"Standard MSW Program, awarded scholastic
scholarships and a stipend as a teacher assistant.
Subsequent acceptance and enrollment, Dean Robin
Rogers deviated from established admission
procedures and without faculty approval enrolled
Petitioner into the "Advanced Standing MSW
Program", then enrolled the Petitioner into the
"Candidacy for Admission" which is an offer to
negotiate, effectively rescinding all previous
acceptances into the School of Social Work. An
applicant to the "Candidacy for Admission" is not
officially enrolled into the School of Social Work
until the applicant successfully completes two
remedial courses during the summer earning a grade
of "B" or higher and gain the committee
recommendation composed of faculty.'
By it terms "candidacy for admission" is an illusionary
contract which can neither be accepted nor ratified. In Texas,
"an illusory contract cannot form the basis for an enforceable
1
Having moved 478 miles to attend BSSW,
Petitioner was informed on the third day of classes
that he was not accepted into the advanced standing
program, rather a "candidate for admission". Having
rejected the "candidacy for admission", Petitioner
sought to enforce the parties' original agreement
"Standard MSW Program" or subsequent acceptance
into the "Advanced Standing Program", but was
informed not to enroll in any graduate programs
because he did not earn at least a "B" in the
candidacy for admission program and failed to gain
faculty recommendation.
Dr. Helen Harris subjected Petitioner to a
hostile learning environment rout with racial
prejudice: an ideology based on white supremacy,
anti-semantic and physical intimidation. In addition,
punished Petitioner with the stroke of a grading pen,
accused Petitioner of "plagiarism", called Petitioner
a "nigger" in the presence of 20 students and a
Professor. Petitioner was defamed in his profession
before the Texas Board of Law Examiners by Baylor
University. Approximately two years later, this civil
action ensued.
Without citations to the record, the lower
Courts concluded petitioner was admitted into the
Standard MSW Program then opted to be admitted
into the "Advanced Standing Program" requiring
completion of two summer courses with a grade of
"B". However, the record does not show such an
admission tract articulated in the manner by the
contract. Vandeventer v. All American Life & Cas. Co., 101
S.W.3d 703, 719 (Tex. App. 2003).
Courts exist at Baylor University School of Social
Work. In Texas, "[c]ontracts are enforced according
to their terms and according to the intentions of the
parties." In re Kaplin Higher Educ. Corp., 235
S.W.3d 206 (Tex. 2007).
STATEMENT OF THE CASE
This action brings before the Court the lower
courts ignoring over 30 years of precedent governing
the standard applicable to the dispositions of a
motion for summary judgment; the importance of a
standard of review as Judicial constraints against
the judiciary's independent judgment; the authority
of a United States Magistrate Judge to decide
dispositive motions absent consent of parties and the
failure of a District Judge to exercise his statutory
duty of de novo review; and refusal of lower Courts
to offer findings of fact and conclusion of law to
justify denial of a preliminary injunction without
holding evidentiary hearings to resolve factual
disputes from the parties conflicting evidence and
refusal to grant a hearing to a student whom alleges
he was expelled for reasons other than the quality of
his work.2
Moreover, this action challenges the financial
bias and judicial misconduct of a U. S. Magistrate
whom sought to deceive the public and this
Petitioner concerning his employment and
2 "[I]f a student alleges that he was actually expelled for
reasons other than the quality of his work or because of the bad
faith or arbitrary and capricious action of an instructor, the
courts will grant a hearing." Wilkenfield v. Powell, 577 F.Supp.
579, 583 (1983).
4
relationship at Respondents' institution; the
financial bias of United States District Judge; and
the racial bias of a United States District Judge
whom declared the word "nigger" non-offensive and
insufficient to establish the existence of a hostile
learning environment. However, "[h]ostile
environment analysis, is not
a mathematically
precise test. Hayut v. State University of New York,
352 F.3d 733 (2003), quoting Harris, 510 U.S. at 22,
114 S.Ct. 367. Moreover, the appalling conduct
alleged in prior cases should not be taken to mark
the boundary of what is actionable. Id at 746. "And,
courts should not, themselves, attempt to establish
an absolute baseline for actionable behavior". Id.
See also, Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,
76 (2d Cir. 2001) (finding that the victims testimony
about the effect on her ability to work due to the
harassment creates a triable issue regarding the
unreasonable interference of the harassment). Id at
748.
...
Prior to issuing his report and
recommendations (R&R), the Magistrate unilaterally
removed the Plaintiff Motion for Summary
Judgment from the docket and issued an Order
separate from his R&R that did not originate in the
district court, which denied the Plaintiffs motions to
strike defendants and witnesses affidavits over
objections: lack of personal knowledge,
untrustworthiness and failure to declare statements
within "true and correct". "It is a settled rule in this
circuit that an unsworn affidavit is incompetent to
raise a fact issue precluding summary judgment."
Nissho-Iwai American Corporation v. R. Kline, 845
F2d 1300, 1306. In fact, the Fifth Circuit rejected
5
Kline's affidavit because, it allows the affiant to
circumvent the penalties for perjury in signing onto
intentional falsehoods." Id. "Kline never declared
her statement to be true and correct; therefore, her
affidavit must be disregarded as summary judgment
proof." Id.
Although the record indicates that neither
party motion for summary judgment was "actually"
before the court, the Magistrate recommended
granting defendants motions for summary judgment
employing throughout his report allegations from
the Plaintiff pleadings along the continuum of
Federal Rule of Civil Procedure 12(b)(6), rather than
bring the Plaintiff motion for summary judgment
before the Court in context of Federal Rule Civil
Procedure 56.
Employing Fed. R. Civ. P. 12(b)(6) relieved
Defendants of their burden showing they are entitled
to summary judgment. The Proper analysis and
resolution is found in Fed. R. Civ. P. 12(d), "If on a
motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by
the court, the motion must be treated as one for
summary judgment under Rule 56."
Despite the Plaintiff filing two motions
requesting renewal of his motion for summary
judgment, the District Judge adopted the R&R and
granted Defendants motions for summary judgment
Defense witness affidavits were not based on personal
knowledge, not sworn to be true and correct, and a sham
affidavit was submitted by Dean Robin K. Rogers (ROA.3446),
along with a forged document supporting Bethany McGraw's
affidavit (ROA.3599).
3
without having pierced the pleadings, without
having considered any discovery motions, without
addressing the motion seeking preliminary
injunctive relief and Ordered that "any motion not
previously ruled upon
DENIED." Subsequent,
Plaintiff filed a timely motion appealing the District
Court ruling granting Defendants summary
judgment and mooting or denying the Plaintiff
Motion for Preliminary injunction. The appellate
court denied the Plaintiff Motion for Preliminary
Injunction pending appeal without a hearing and
without offering findings of fact or conclusions of law
to justify denial and without applying some sort of
standard of review.
...
The appellate court entered its final Order
without addressing the issues on appeal and without
explanation giving deference to the district court,
"We conclude that each of Collins's arguments is
without merit, largely for the reasons stated by the
district court and magistrate judge in their multiple
explanations. Affirmed". "The two motions that were
carried with the Case are DENIED AS MOOT."4 A
timely motion for rehearing En banc was filed, but
was denied by a single Circuit Judge without
explanation. Essentially, this case has wound its
way from the district court through the appeals
The Appellant filed a motion to supplement the record with
evidence that Magistrate Jeffrey Manske was paid for his
services as Adjunct Professor/Adjunct Lecturer and the pair
sought to cover the relationship over. Appellees filed a motion
to strike without presenting evidence to the contrary. The
Court decided to carry the motion with the case, but later
rendered both motions "moot", thus ignoring the very issue on
appeal, "fraud on the court".
process without the Plaintiff so much as having a
hearing (denial of due process).
REASONS FOR GRANTING THE WRIT
Over 34 years ago, writing for the Fifth
Circuit Court of Appeals, Judge Goldberg stated,
"[C]ourts should not look the other way to ignore the
existence of genuine issues of material facts."
Nicholas Acoustics & Speciality Co-v. H&M Co. Inc.,
695 F.2d 839, 846. This United States Supreme
Court is being called upon to invoke its supervisory
powers to ensure due process to citizens of these
United States by preventing: Magistrates Judges
from usurping authority not reserved by statute;
preventing District Judges from ignoring their
statutory duty of de novo review; prevent the
judiciary from exercising its own independent
judgment in place of applicable standards of reviews
laid down by this Court; to further this Court's
uniform precedent for deciding a motion for
summary judgment5; and to ensure "[e]quity will not
enforce judgments procured by fraud or bribery"
Turner v. Pleasant, 663 F.3d 770, 776-77 (5th Cir.
2011) by preventing a District Court from adopting a
fraudulent magistrate report and recommendation.
"Remember, all men would be tyrants if they could"
Abigail Adams to John Adams: Braintree,
Massachusetts, March 31, 1776.
"[T]his Court is not equipped to correct every perceived error
coming from the lower federal courts, we intervene here
because the opinion below reflects a clear misapprehension of
summary judgment standards in light of our precedents." Tolan
v. Cotton, 572 U.S.
(2014).
-
I.
Denial of Due Process
A. Powers Granted to Magistrate Judges via
Congress.
In United States v. Raddatz, 447 U.S. 667,
673 (1980) this Court defined the limited powers of a
magistrate regarding dispositive motions by stating,
"Congress provided that a district court judge could
designate a magistrate to "hear and determine" any
pretrial matter pending before the court, except
certain "dispositive" motions." "Excepted were eight
categories of "dispositive" pretrial motions; with
regard to these a magistrate might conduct
evidentiary and other hearings and recommend
dispositions, nothing more". Gomez v. U.S., 490 U.S.
858, 868 (1989). "[T]he magistrate has no authority
to make a final and binding disposition." U.S. v.
Raddatz at 673. "The statute then provides: a judge
of the court shall make a de novo determination of
those portions of the report or specified proposed
findings or recommendations to which objection is
made." Id. at 668. "[U]ltimate adjudicatory power
over dispositive motions vest in the district court
while granting the widest discretion on how to treat
the recommendations of the magistrate." Id. at 675.
Magistrate Manske conducted no hearings
prior to drafting his report and recommendations
which did not include evidence from all parties'
affidavits or arguments from the parties' motions for
summary judgments, responses, and replies thereto.
The Fifth Circuit held, "[a]n appellate court must be
satisfied that a district judge has exercised his nondelegable authority by considering the actual
testimony, and not merely reviewing the magistrates
report and recommendations." United States v.
Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981).
Moreover, [a] review of the factual findings made by
a magistrate is not the same thing as a de novo
review of the evidence itself." Hernandez v. Estelle,
711 F.2d 619.
The Eight Circuit has followed suit by stating,
"[t]he districts court must consider actual testimony
and not merely review the magistrate's report and
recommendations." Branch v. Martin, 886 F.2d 1043.
The Fourth Circuit held, "failure to conduct de novo
review is reversible error." Wimmer v. Cook, 774
F.2d 68, 76 (1985).
B. Due Process Requires a Neutral and
Detached Judge.
The Plaintiff in Kamps v. Baylor University, 135
S.Ct. 2380 filed his complaint on July 19, 2012, then
filed his motion to recuse on October 1, 2013 alleging
bias, financial interest, and extensive relationships
between Baylor University, and Judge Walter Smith,
Jr. as did this Petitioner in his motions for recusals.
Judge Walter Smith granted the motion for recusal
the very next day.
The sixth circuit rejected any duty to investigate
and inform the court of potential judicial bias.
"[L]itigants should assume the impartiality of the
presiding judge, rather than pore through the judge's
private affairs and financial matters. [J]udges have
an ethical duty to disclose on the record information
which the judge believes the parties or their lawyers
might consider relevant to the question of
10
disqualification." Perry v. Singletary, 49 F.3d 1483,
1489 (111h Cir. 1995). "[The judge] possibly did not
consider the matter sufficiently relevant to merit
disclosure, but his nondisclosure did not vest in [the
parties] a duty to investigate." Id.
"[A] judge should refrain from financial and
business dealings that exploit the judicial position or
involve the judge in frequent transactions or
continuing business relationships with lawyers or
other persons likely to come before the court on
which the judge serves." Cannon 4 (D)(1). It suffices
to say that majority of lawyers at Defense Counsel
Firm are graduates of Defendant Baylor University,
and has served as an intern in U.S. Judge Walter
Smith Jr. Court. Defendants Baylor University has
an ongoing intern program at its law schools in
which students serve in U.S. Judge Walter Smith,
Jr. Court. Lawyers from that firm whom are
graduates of Defendant Baylor Law School regularly
appear before Judge Walter Smith Jr. Court. A
number of these lawyers are Professors at Defendant
Baylor University Law School. Judge Walter Smith
Jr. has an endowment fund (minimum amount
$50,000.00) established at Baylor University School
of Law. Judge Walter Smith having presided over
the recusal motions of Magistrate Jeffrey Mankse
with knowledge of his own financial interest
deprived this litigant of due process ("Due process
guarantees litigants a neutral and detached judge in
the first instances)." Ward v. Monroeville, 409 U.S.
57.
Magistrate Manske dismissed Petitioner's second
amended complaint (ROA.267) for failure to state a
claim despite lack of statutory authority to decide
11
dispositive matters and invoked the burden of a
heighten pleading standard in a Civil Rights case
contrary to this Courts holding "a federal court may
not apply a standard more stringent than the usual
pleading requirements of Rule 8(a) in civil rights
cases ..." Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163,
164. Then harassed and ridiculed the Petitioner
further by pretending not to understand the basis of
the complaint (IROA.268).
Then gave Defendant (his employer or former
employer) preferential treatment on the Court's
docket by approving their motion within six hours of
submission requesting additional time to answer the
complaint despite having nearly five months
(ROA.263, 270). Then, via "text order" dated
12/22/15, denied the Petitioner motion to extend the
page numbers within his motion for summary
judgment and limited the motion for summary
judgment inclusive of exhibits to 100 pages despite
no local rule limiting exhibits. Then eliminated the
Petitioners motion for summary judgment from the
Court's docket and designated it as a "response"
despite lack of statutory authority and under cover
of "text-orders" dated (2/3/2016), which are not part
of the record. Then denied the Petitioner motions to
strike defendants inadmissible evidence despite lack
of statutory authority (ROA.3277). Then drafted a
report and recommendation so loped sided, leaving
behind the entire summary judgment record which
consisted of arguments and evidence not favorable to
his employer or former employer (ROA.3290).
The Magistrate stated within his professional
profile: "I am also an Adjunct Professor at Baylor
12
Law School and assist Mark Olser with his advanced
Criminal Practice Classes" (ROA.1075). Petitioner
then moved for recusal, but that motion was denied.
Thereafter, the Magistrate updated his profile to
reflect his having been employed at Baylor
University years 2005-2010 (ROA.3118). Petitioner
discovered the update was also misleading, for the
financial disclosure reports from the Committee on
Financial Disclosure Administrative Office of the
Courts in which the Magistrate filed for the periods
2010 2014 lists his positions as Adjunct Lecturer
and Moot Court Advisor at Respondent Baylor
University School of Law. The commission removed
Saucedo from office for similar reasons. In a 60
pages document, "[t]he commission said the removal
was necessary to 'protect the public and maintain
public confidence in the integrity of the judiciary'."
Furthermore, "Saucedo's actions were called
deceitful and calculated".
-
Keith Schubert affirming adjunct positions are
paid positions at Respondent Baylor University
makes the Magistrate ineligible, conduct deceitful
(failure to report earned income) calculated and bias
in fact6. "The Act itself specifies some proscriptions:
magistrates may hold no other civil
office or
employment under the United States
nor engage
in the practice of law or any other business,
occupation, or employment inconsistent with
expeditious, proper, and impartial performance of
their duties..." Gomez v. U.S., 490 U.S. 858, 863.
...
...
6 Keith Schubert is search committee chair at Baylor
University, and the institution direct applicants with
employment questions his way.
13
Article III Jurist Condone the Use of the
Word "Nigger".
"It is beyond question that the use of the word
'nigger' is highly offensive and demeaning, evoking a
history of racial violence, brutality, and
subordination. This word is "perhaps the most
offensive and inflammatory racial slur in English,
a word expressive of racial hatred and bigotry."
McGinest v. GTE Service Corp., 360 F.3d 1103, 1116
(2004) see also Daso v. The Grafton School, Inc. 181
F.Supp.2d 485, 493 (D.Md.2002) ("The word 'nigger'
is more than [a] 'mere offensive utterance'... No
word in the English language is as odious or loaded
with as terrible a history."); NLRB v. Foundry Div. of
Alcon Indus., Inc., 260 F.3d 631, 635 n.5 (6th Cir.
2001) ("That the word 'nigger' is a slur is not
debatable."). McGinest at 1116. Yet, District Judge
Robert Pitman made credibility determinations on
summary judgment and declared the word "nigger"
non-offensive in the context of Title VII violations.
App. 21 ("because it was used as part of classroom
academic discussion")7.
Too Much Fellowshipping of the Ring
"[W]e must consider whether a reasonable and
objective person, knowing all of the facts, would
harbor doubts concerning the judge's impartiality.
Patterson v. Mobil Oil Corp., 335 F.3d 476 (2003);
citing, In re Chevron U.S.A., Inc., 121 F.3d 163, 165.
Thus, recusal may be required even though the judge
is not actually partial. Patterson, citing; In re Cont'l
"[A] court may not make credibility determinations or weigh
the evidence in ruling on a motion for summary judgment?"
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
14
Airlines Corp., 901 F.2d 1259, 1262 (51h Cir. 1990).
In re Kensington, the court stated, "[A]lthough the
record does not demonstrate that Judge Wolin has
done anything wrong or unethical or biased, he must
be disqualified under 28 U.S.C. section 455(a) . . ." In
re Kensington Int'l Ltd., 368 F.3d 289 (3d. Cir.
2004), quoting Alexander v. Primerica Holdings,
Inc., 10 F.3d 155, 162 (3d cir. 1993) (For purposes of
section 455(a) disqualification, it does not matter
whether the district court judge actually harbors any
bias against a party or the party's counsel. But the
test for disqualification under section 455(a) is not
actual bias (emphasis in original); it is the perception
of bias. In re Kensington at 294.
Baylor University awards full time scholarships
to its law students named for the Baylor Law
alumnus who served as Special Prosecutor during
the Watergate crisis. "Leonidas Jaworksi
maintained close links with his alma mater." "He is
memorialized at Baylor Law School by the Leon
Jaworski center. "The memorial was donated to
Baylor Law School by Jaworski's family and by the
Fulbright & Jaworski law firm." Attorney for all
named Defendants is Roy Barrett whom is a
Jaworski Fellow at Defendant Baylor University.
Roy Barrett has practice before the U.S. District
Court Western District of Texas since 1973. Judge
Pitman has practice within the United States
District Court for the Western District of Texas as a
Magistrate from 2003-2011 (under Judge Walter
Smith). Judge Pitman has also worked for Fulbright
& Jaworski (now Norton Rose Fulbright) from 19891990, Summer 1987. Nonetheless, Judge Pitman did
not disclose his former employment with a firm so
15
heavily favored by Defendant's Baylor University
whom is represented by a decorated Roy Barrett.
Despite uncontroverted evidence showing both
Defendants and Magistrate Manske engaged in
conduct that brought the courts in disrepute by flat
out lying about their relationships, Judge Pitman
failed to take appropriate action.
If the Judicial Code of Conduct means anything,
"A judge having knowledge that another judge has
committed a violation of this code that raises a
substantial question regarding the judge's honesty,
trustworthiness, or fitness as a judge in other
respects shall inform the appropriate authority."
Canon 2.15(A). "A judge who receives information
(ROA.4075) indicating a substantial likelihood that
another judge has committed a violation of this Code
shall take appropriate action." Canon 2.15(C). "A
judge having knowledge that a lawyer has
committed a violation of the Rules of Professional
Conduct that raises a substantial question regarding
the lawyer's honesty, trustworthiness, or fitness as a
lawyer in other respects shall inform the appropriate
authority." Canon 2.15(B).8 "A judge who receives
information indicating a substantial likelihood that
another judge has committed a violation of this Code
shall take appropriate action." Canon 2.15(D). Even
8 Defendant's employee Bethany McCraw is a lawyer whom
submitted a forged document supporting her affidavit. The
document purported to show Defendant were in possession of a
release form that absolved them of liability for defaming
Petitioner, but a document from an independent source proved
the document submitted by McGraw was altered and forged.
The district court looked the other way and did not address this
issue of fraud on the court.
16
on Petition for rehearing en banc, not a single judge
within the 5th Circuit Court of Appeals so much as
bat an eye when informed that a motion showing
fraud on the court was "mooted".
This Court indicated "recusal for the appearance
of bias is required by the Due Process Clause when
the situation is one which would offer a possible
temptation to the average.. .judge to... lead him not
to hold the balance nice, clear and true." Richardson
v. Quarterman, 537 F.3d 466, 475-76 (5th Cir. 2008)
quoting; Aetna, 475 U.S. 813, 823 (quoting Ward, 93
S. Ct. at 83); see also Couch, 896 F.2d at 82 (The due
process clause requires judges to step aside when a
reasonable judge would find it necessary to do so).
E. Fraudulent Reports and Orders
"Proof of the scheme, and of its complete success up
to date, is conclusive" of fraud. Hazel-Atlas, 322 U.S.
246. Such as the inserting bogus documents into the
record. Greiner v. City of Champlin, 152 F.3d 787,
789 (8th Cir. 1998). The scheme: "if one party
moves for summary judgment and.. .it is made to
appear from all the records, files, affidavits and
documents presented that there is no genuine
dispute respecting a material fact essential to the
proof of movant's case and that the case cannot be
proved if at trial.. .the court may... grant summary
judgment..." Cool Fuel Inc., v. Connett, 685 F.2d 309
(9th Cir. 1982).
Insertion of Bogus documents: It appears any
document dealing with dispositive matters did not
originate within the District Court. Petitioner spoke
with Tom Brice (Clerks Office) and was informed
that all documents received by the Court over the
0 VA
counter or via mail is given a file date stamp and
initial of the receiving clerk. When asked why a
magistrate report and recommendation
presumptively already at the Court would receive a
file date stamp, initialed, scanned in and served on
the parties, a pause ensued. Petitioner was then
informed that said document originates from the
Judge's chamber, then received a file date and initial
of the clerk's signature and scanned in to be served
on the parties. Not only does this explanation makes
no sense, it's contrary to the Court's local rule CV5(a)(2) and evidence in the record. App.60.
First, the Order (ROA.270) granting Defendants
more time to respond to the Plaintiff complaint is a
scanned image, file stamped (as if received over the
counter or via mail) and lacking all indication that it
originated in the Judge's chambers for the only
signature is Magistrate Manske. Secondly, the Order
(ROA. 3025) denying recusal of Magistrate Manske is
(1) a scanned image, (2) misspells the Plaintiff name
(which would have been impossible if drafted on the
Court's own system), and (3) the font and text type is
inconsistent with other documents from the Court's
electronic system. Moreover, the document has the
initials of the law clerk (E.J.), lacking a file stamp,
which contradicts the idea that all documents
originate from the Judge's chambers, receives a file
date and scanned.
The Order (ROA.3277) denying the Plaintiffs
motion to strike Defense witness affidavits is also
scanned, received a file stamp date (as if received
over the counter or via mail). The Order denying
recusal of Judge Smith is initialed by the law clerk
(l.A.), scanned, but no file stamped, which negates
18
the procedure as explained by the Clerk (lack of file
stamp negates the theory that all documents with a
file stamp originate in the Judges' chambers).
II.
28 U.S.C. 636(b)(1)(B)
Congress did not give magistrate judge's
unilateral authority to rule on objections to
affidavits supporting a motion for summary
judgment because these are dispositive matters
within the meaning of 28 U.S.C. 636 (b)(1)(B).
The Magistrate acted beyond statutory
authority under guise of "text orders" in which the
contents there of is not part of the record, but do
appear on the docket. The Magistrate entered text
orders ranging from the denial of motions to strike
defendant's inadmissible affidavits, motions to
dismiss the complaint, motions denying opportunity
for discovery, motions granting his employer or
former employer additional time to answer the
complaint, and text orders denying motions to
compel, all of which he has no statutory authority to
decide. Judge Pitman issued a "text order" granting
the motion to dismiss attorney fees, which avoided
any discussion on the merits and the issue of
Plaintiff's motion for summary judgment not before
the Court.9 "Even a dog knows the difference
"[W]hen the "prevailing party" is the defendant, the district
court can award attorney's fees only upon a finding that the
plaintiffs action was frivolous, unreasonable, or without
foundation." Dean v. Riser, 240 F.3d 505, 508 (5th Cir.
2001), which would have called for a discussion on the
merits/piercing the pleadings.
19
between being kicked and being stumbled over."
Justice Oliver W. Holmes, Sr.
III. Appeals Court Failure to Apply
Some Standard of Review
In Tolan v. Cotton, 572 U.S.
(2014),
Justice Auto with whom Justice Scalia joined in a
concurring opinion noted that the 5th Cir. Court of
Appeals applied the correct standard of review,
"There is no confusion in the court of appeals about
the standard to be applied in ruling on a summary
judgment motion...". "[A]n appellate court must
apply some standard of review to every issue it
considers." U.S. v. Vonsteen, 950 F.2d 1086, 1091
(emphasis in original). "If neither party suggest the
appropriate standard, the reviewing court must
determine the proper standard on its own." Tolan
citing; Cordrey v. Euckert, 917 F.2d 1460, 1465 (6th
Cir. 1990), cert. denied. This is because legal
questions are "resolved through reasoning,
comparison with like cases, and review of a trial
court record task that the appellate court is
principally designed to undertake." United States v.
Felder, 548 A.2d 57, 63-64 (D.C. 1988).
-
-
The Fifth Circuit Court of Appeals "[d]o not sit
to hear cases de novo." Corn. Standard Ins. Co., v.
Bryce St. Apts., Ltd 703 F2d 904. It "reviews a
district court's summary judgment ruling de novo,
applying the same standard as the district court."
Stanley v. Trinchard, 500 F.3d 411, 418 (5th Cir.
2007). Under de novo review, "no form of appellate
deference is acceptable." Salve Regina College v.
Russell, 499 U.S. 225, 232-33. "De novo review
involves only application of legal propositions to the
20
undisputed facts in the record." Abercrombie & Fitch
Stores, Inc. v. Am. Eagle Outfitters Inc., 280 F.3d
619, 629 (6th Cir. 2002).
Denial of a Motion for Preliminary Injunction
is reviewed for an abuse of discretion. PCI Transp.,
Inc. v. Fort Worth & W.R.R. Co., 418 F.3d 535, 545
(5th Cir. 2005). "When denying a motion for
preliminary injunction, a district court must offer
findings of fact and conclusion of law to justify
denial." Ali v. Quarterman, 607 F.3d 1046, 1048 (5th
Cir. 2010).
"Denial of a motion to recuse is reviewed for
an abuse of discretion." Patterson v. Mobil Oil, 335
F.3d 476, 483 (5th Cir. 2003). In the case at bar, the
Appeals Court did not apply any standard of review,
nor made any attempt to resolve the case through
reasoning, comparison of like cases, or review of the
trial court record.
IV.
28 U.S.C. § 1291 Requires Finality
"The very mission of summary judgment
procedure is to pierce the pleadings and to assess the
proof'. Stillman v. Travelers Ins. Co., 88 F.3d 911,
913 (1996). Unless verified, "[p]leadings are not
summary judgment evidence" Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The party
seeking summary judgment informs the district
court of the basis for his motion, and identifying
those portions of the pleadings, depositions, answers
to interrogatories, and admission on file, together
with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of
21
material fact." Id. at 912. (for an example see
Admissions by Opposing Party ROA.3070 & 3134).
Defendants summary judgment motion is
typically dressed in one of two styles: the defendant
may affirmatively offer evidence which undermines
one or more of the essential elements of the
Plaintiffs case; or the defendant may simply
demonstrate that the evidence in the record falls
short of establishing an essential element of the
plaintiffs case." International Shortstop, Inc., 939
F.2d 1257, 1264 (1991) citing; Celotex, 106 S.Ct. at
2548. "[A] court may not make credibility
determinations or weigh the evidence in ruling on a
motion for summary judgment?" Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
Evidence that the Magistrate did not pierce
the pleadings is found throughout his report and
recommendations where he argues on behalf of the
petitioner (ignoring general principles of law from
his previous rulings)10 employing allegations from
the complaint rather than limiting "inquiry to the
summary judgment record." Little v. Liquid Air
Corp., 37 F.3d 1069, 1071 (5th Cir. 1994) (enbanc).
A. Boilerplate Language.
"Merely labeling a judgment as final does not
make it so." Witherspoon v. White. 111 F.3d 399, 401
(1997). "The order must adjudicate the rights and
liabilities of all parties properly before the Court".
In Burleson v. Glass, 268 F.Supp.2d 699 (W.D. Tex. 2003),
Magistrate Manske stated, "A party opposing summary
judgment cannot establish a genuine issue of material fact by
resting on the allegations made in his pleadings."
10
22
Witherspoon at 401 citing; Arango v. Guzman Travel
Advisors Corp., 621 F.2d 1371, 1374 (5th Cir. 1980).
"[W]hen the record clearly indicates that the district
court failed to adjudicate the rights and liabilities of
all parties, the order is not and cannot be presumed
to be final, irrespective of the district court's intent.
Whitherspoon at 402 citing; Patchick v. Kensington
Publishing Corp., 743 F.2d 675, 677 (9th Cir. 1984)
(holding that when the record indicates that a served
defendant remains a party to an action, the court
cannot assume finality).
In Whitherspoon, "[t]he magistrate reviewed the
federal defendants' motion to dismiss and
alternative motion for summary judgment and
recommended granting the motion as a motion for
summary judgment." Id at 401. "After the
magistrate judge made his report and
recommendation to the district court, Wadley filed
its own motion for summary judgment, which
neither the magistrate nor the district court appears
to have ever reviewed." Id at 401. "The district court
adopted the magistrate's report and recommendation
regarding the federal Defendants motion and issued
a separate final judgment in accordance with
Federal Rule 58." Id. at 401.
"In the district court's final judgment, the court
granted the defendants motion to dismiss and
purported to dismiss Witherspoon's entire complaint
with prejudice." Id at 401. The court stated,
"Because.. .the district court was solely granting the
federal defendants motion for summary judgment in
its final order, Wadley's motion for summary
judgment remained live and undetermined". Id at
23
402. "The record indicated that neither the district
court nor the magistrate ever ruled on Wadley's
motion." Id at 402. "Moreover, Wadley's motion
asserted different grounds than those asserted by
the federal defendants, and the magistrate report,
which the district court adopted, did not address the
grounds asserted by Wadley." Id at 402.
B. Defendants MSJ Not Before the Court
The "record" indicates that a served Defendant
remains a party to the action because the
Defendants Motions for Summary Judgment was not
"actually" before the Court when the Magistrate
drafted his report and nor was Defendants MSJ
before the Court when the Court issued its Final
Order. Like Wadley's motion, the record indicates
that neither the District Court nor the Magistrate
ever ruled on Defendants MSJ. Moreover, the
Defendants MSJ asserted different grounds,
different arguments, and presented issues different
from the Plaintiff, and different from the magistrate
report which the District Court adopted, and said
report did not address the grounds asserted by
Defendants.
Since, the District Court did not rule on the
Defendants MSJ, the final judgment Order
effectively denied Defendants MSJ, and left the
Defendants parties to the action with Plaintiff
Claims against Defendants still intact. Thus,
Respondents and the Petitioner's Motion for
Summary Judgment are still alive and
undetermined, "[t]he final judgment order lacks
finality thus depriving the appeals court of appellate
24
jurisdiction pursuant to 28 U.S.C. Section 1291."
Witherspoon v. White, 111 F.3d 399, 403.
The Court in Stillman concluded, "the entry of
summary final judgment was error." Stillman v.
Travelers Inc. Co., 88 F.3d 911, 914 (1996). For, "the
summary judgment did not even purport to
adjudicate Charter Oak's other affirmative
defenses"." Id. "It is no sense a final judgment." Id.
at 914. "It is not final as to all the parties or as to
any party or as to the whole subject matter of the
litigation." Stillman at 914, citing; King v. California
Co., 224 F.2d 193, 196 (5th Cir. 1955).
C. The 5th Circuit Court of Appeals Do Not
Sit to Hear Cases De Novo.
Petitioner argued on appeal that neither
party's motion for summary judgment were before
the Court when the District Court adopted the
Magistrate R&R and issued its final Order. The
appeals Court resolved the matter without any
citations to the record and without addressing the
issue of fraud on the Court by stating, "Collins
response was styled as a motion for summary
judgment. Upon Collins's motion
the magistrate
...
Defendant Baylor University Answer (ROA.404): asserting
16 defenses and a counter-claims (ROA.408) against Plaintiff.
Defendant Robin K. Rogers Original Answer (ROA.485):
asserting 12 defenses (ROA.509) and a counter claim
(ROA.512) against Plaintiff; Defendant Helen Harris Original
Answer (ROA.448): 10 defenses (ROA.481), and a counterclaims (ROA.483) against Plaintiff. The District Court's
"Orders" App. 10 and (ROA.4093) makes no mention of how the
Court resolved the "counter claims" or "defenses" which are a
part of the summary judgment record.
11
25
treated it as his response
whether it is read as a
response only or as a response and motion for
summary judgment does not affect our analysis."
App. 6.
...
However, recognizing the document as a MSJ
versus a "response to a MSJ" should affect the
appeals Court analysis. "The standard of review on
appeal... depends on the nature of the claimed
error." See Navellier v. Sletten, 262 F.3d 923, 944
(9th Cir.2001). The standard of review may be critical
to the outcome of the case. See Dickerson v. Zurko,
527 U.S. 150, 152-61 (1999) ("The upshot in terms of
judicial review is some practical difference in
outcome depending upon which standard is used.";
see also Southwest Voter Registration Educ. Pro. v.
Shelley, 344 F.3d 914, 917 (9th Cir. 2003), noting
"standard of review is important to our resolution of
the case"; Krull v. SEC, 248 F.3d 907, 914 (9th Cir.
2001) (noting deferential standard of review
"constrains us, even if we might decide otherwise
were it left to our independent judgment"; Payne v.
Borg 982 F.2d 335, 338 (91h Cir. 1992).
This Court stated, "in articulating the factual
context of the case, the Fifth Circuit failed to adhere
to the axiom that in ruling on a motion for summary
judgment, the evidence of the nonmovant is to be
believed, and all justifiable inference are to be drawn
in his favor." Tolan v. Cotton, 134 S.Ct. 1861, 1863
citing Anderson v. Liberty Lobby Inc., 477 U.S. 242,
255. It should matter because whether Collins's
motion for summary judgment was treated as a
26
response at the appellate levels does not change the
fact that the MSJ was not taken up on the trial court
level. The district court is obligated to consider the
entire summary judgment record. 12
The district court's failure to hear a motion for
summary judgment means it did not adjudicate the
rights and liabilities of all parties. Therefore, "It is
no sense a final judgment." Stillman v. Travelers
Ins., Co., 88 F.3d 911, 914 (1996), citing; King v.
California Co., 224 F.2d 193, 196 (5th Cir. 1955).
"The Fifth Circuit will not enlarge the record on
appeal with evidence not before the district court."
McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir.
2008). "[T]he court's review on appeal is limited to
consideration of the information and documents
properly before the district court at the time of its
decision. See Palasota v. Haggar Clothing Co., 499
F.3d 474, 489 n.12 (5th Cir. 2007). The Fifth Circuit
Court of Appeals "[d]o not sit to hear cases de novo."
Com. Standard Ins. Co., v. Bryce St. Apts., Ltd 703
F2d 904. Thus, the motion for summary judgment
should not have been considered by the appellate
court because it was not considered by the district
court. See Mitchell v. Trade Winds Co., 289 F.2d 278,
279 (5th Cir. 1961).
"[I]nquiry
is limited to summary judgment record." Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(emphasis in original).
12
...
27
V.
Implied Hearings on Motions for
Preliminary Injunctions
"When parties have raised relevant factual
disputes concerning the preliminary injunction,
courts have interpreted Fed. R. Civ. P. 65(a)(1) to
require a fair opportunity and a meaningful hearing
to present their differing versions of those facts
before a preliminary injunction may be granted."
ADT, LLC v. Capital Connect, Inc., 145 F. Supp.3d
671, 683 citing; PCI Transportation, 418 F.3d at 546;
Kaepa, Inc. v. Achilles Corporation, 76 F.3d 624, 628
(5th Cir.), cert. denied, 519 U.S. 821.
"[T]he Fifth Circuit has disapproved of ruling
on a preliminary injunction where the parties were
not given a fair opportunity"
and "the Fifth
Circuit has overturned a district court's ruling on a
motion for a preliminary injunction without a
hearing where the parties disputed the central facts
underlying the injunction." ADT. LLC at 683-684
citing Heil Trailer International Co. v. Kula, 542
Fed. Appx. 329, 334 & n. 17 (5th Cir. 2013).
...
The facts are in dispute and material to the
preliminary injunction. Respondent argued in its
motion to dismiss that Petitioner "had been accepted
into their program but has not enrolled, and
therefore no property interest" (ROA.98). "No
Formation of Contract alleged by Plaintiff Breach of
Contract Claims fails." (ROA.98). "Plaintiff did not
enroll in or attend any classes in the Standard MSW
Program and he did not pay any deposit, tuition or
fees for the Standard MSW Program, and therefore
there was no contract between Plaintiff and Baylor
regarding the Standard MSW Program." (ROA.100).
28
Then argued it was Petitioner whom breached the
contract, "Plaintiff has not pled that he actually
attempted to enroll in classes in the Standard MSW
Program in the Fall 2013 semester and was unable
to enroll in those classes." (ROA.102). When those
argument were controverted, Respondent argued for
the first time on appeal, "placing Petitioner back into
an MSW Program at the Baylor University School of
Social Work would change the status quo."
Further confusing matters, the Appeals court
found without offering findings of fact or conclusion
of law to justify denial, "He originally applied for and
was admitted into the "Standard" program." App. 6.
VI.
Summary Judgment
Weapon
-
A Lethal
The Court in International Shortstop Inc., v.
Rally's Inc., 939 F.2d 1257, 1267 (1991) "[b]elieve
that the district court
should have deferred ruling
on the motion for summary judgment until the
necessary discovery was complete." "Although
Shortstop did not strictly conform to Rule 56(f)'s
procedures, we are satisfied by its multiple filings
prior to the court's ruling on the motion for summary
judgment, Shortstop adequately invoked Rule 56(f)."
Id. at 1267-1268.
...
Here is what the court considered: "In its initial
response to the motion for summary judgment,
Shortstop adequately noted that several depositions
were still outstanding." Id. at 1268. "[P]rior to the
court's ruling on the motion for summary judgment,
Shortstop thrice sought a continuance of discovery
and promptly alerted the district court to the
29
discovery proceedings before the magistrate judge,
requesting leave to file a supplemental
memorandum in opposition to the motion for
summary judgment." Id. at 1268.
"Shortstop explained that the discovery it sought
pertained directly to the privilege issue which was
the focus of Rally's motion." Id. at 1268. "That the
contemplated discovery was material to the
summary judgment motion is confirmed by the
magistrate judge's ruling in favor of Shortstop on the
discovery matters." Id at 1268. "Moreover, there is
no indication that Shortstop was dilatory in seeking
discovery." Id. at 1268. To the contrary, Rally's
consistently interposed its objections to Shortstop's
discovery requests on the ground of attorney client
privilege." Id. at 1268. "Ultimately, the parties
turned to the court for direction." Id. at 1268.
"The district judge referred the matters to the
magistrate, who ruled that Rally's had waived its
attorney client privilege and could no longer object to
the disclosure of the evidence." Id. at 1268. "[T]he
delays in obtaining the discovery stemmed from
Rally's efforts to cling to its legal position, not from
dilatory tactics by Shortstop." Id. at 1268. The Court
concluded "that the district court should have
allowed Shortstop to complete discovery before
proceeding to rule on Rally's motion." Id. at 1268.
"Summary judgement is a lethal weapon. We must
afford prospective victims some protective armor if
we expect them to properly defend against it." Id. at
1268.
30
A. Diligent Pursuit of Discoverable
Information
Only parties who have diligently pursued
discovery are entitled to the protections afforded
under Rule 56(f). International Shortsop, Inc. at
1267 citing; C-B Kenworth Inc. v. General Motors
Corp., 118 F.R.D. 14, 16 (D.Me. 1987). On January
20, 2016 Plaintiff attempted to confer with opposing
counsel to obtain the clean copies of authorization
and release form absolving Defendants of any
liability for having defamed Plaintiff before the
Texas Board of Law Examiners (ROA.2839.
ROA.3011, ROA.3012.). In addition, Plaintiff
requested documentary information referenced
within Defendant Robin Rogers affidavit to support
his allegations that the school of social work made
changes to its degree program (ROA.3010,
ROA. 3011) rendering Plaintiff unqualified.13
Plaintiff requested a review of the appeals
committee findings (ROA.3014), which denied
Plaintiff admission into the school of social work
after already granting admission. Plaintiff then filed
document #83 (ROA.2837) Motion to Compel
Discoverable Evidence filed January 21, 2016
13 In an effort to carry their burden under the McDonnel
Douglas Burden Shifting analysis, Defendants made up a cock
and bull story concerning the necessity of the "Shulman Model"
and "Faith and Practice" as being a requirement for admission
into the advanced standing program. Although Plaintiff
debunked these allegations, the statements are directly related
to Plaintiffs ability to prove Defendant racially discriminated
in admissions. See ROA. 1124-1130.
31
(ROA.3262)14. On January 28, 2016 Plaintiff filed
Doe. 87 (ROA.2895) requesting a hearing on Doc. 83,
which was denied. Plaintiff requested Defendants
provide the name, address, telephone number,
ethnicity and race of students whom were admitted
into the school of social work (ROA.3151)15.
On February 06, 2016 Plaintiff filed a motion
(ROA. 3058) requesting additional time to defend
against Defendants' motions for summary judgment,
informing the court that Plaintiff had not delayed in
seeking the requested information and informed the
Court that Plaintiff had filed a motion to compel
despite defense counsel arguing (1) Plaintiff had not
followed the federal rules of evidence, (2) the
requested documents are not relevant to the MSJ,
(3) and several general objections.
March 29, 2016 Plaintiff filed his second motion
requesting additional time to defend against
Defendants Motions for Summary Judgment
(ROA.3241), informing the Court that the Court had
not ruled on the previous motion for continuance and
sought to extend discovery until July 31, 2016 due to
Plaintiff not having obtained the information needed
to survive summary judgment due to the information
being exclusively in Defendants possession.
See also Defendants refusal to comply with the District
Court's local discovery rule CV-33 at ROA.3263. The District
Court never ruled on this issue.
14
Plaintiff needed this information to support his Title VI and
42 U.S.C. 1981 claims by showing other lesser qualified White
students were admitted into the school of social work programs.
15
32
June 01, 2016 Plaintiff filed his third (thrice)
motion for continuance in support of his motion for
summary judgment (ROA.3494) informing the Court
that Defendants objected to interrogatories under
local rule CV-33 (ROA.3263).16 Plaintiff requested
the names, telephone numbers, and email addresses
of the students whom were present and witness the
events that is the subject matter of this lawsuit. The
students' testimony was needed to end disputes
concerning the existence of a racially hostile learning
environment in which Title VI forbids.
Plaintiff also requested additional time to obtain
the testimony of Defendants employees whom were
present and actively teaching during the allege Title
VI violations and the testimony of an employee who
can substantiate Plaintiff claims of being denied
admission into the school of social work after having
requested admission into both programs. In
response, Defendants asserted the Family
Educational Rights and Privacy Act (ROA.3264)
arguing privileged17. In addition, Plaintiff informed
the Court of his request that Defendants disclose
information regarding their affiliations with
Magistrate Jeffrey C. Manske, U.S. Judge Walter
Smith and students whom may or has interned for
the afore-mentioned judges (ROA.3670, ROA.3869,
ROA.3882).
16 The District Court Local rule CV-33 states, App. 60. Local
rules "have the force of law". Hollingsworth v. Perry, 558 U.S.
183, 191. Nevertheless, Defendants made no showing
whatever.
17 The District Court never ruled on the issues of privilege nor
the protective order sought by Defendants.
33
July 31, 2016 Plaintiff filed his second set of
interrogatories (ROA.3593) requesting among other
things that Defendants declare the statements
within their affidavits are true and correct under the
penalty of perjury (ROA.3597) and (ROA.3599
relating to Bethany McGraw forged documents).
Plaintiff specifically asked Dr. Robin Rogers to
declare under penalty of perjury that a record exists
or existed showing that the school of social work
adopted changes to its degree requirement reflecting
the necessity of the "Shulman Model" and "Faith and
Practice" being prerequisite to enrollment into the
school of social work Advanced Standing Program
(ROA.3598).
August 14, 2016 Plaintiff served his third set of
interrogatories (ROA.3676) asking Baylor
University, "Did Magistrate Manske serve as
Adjunct Lecturer, Adjunct Professor, or Moot Court
Advisor at any time During the period of January 01,
2010 through December 31, 2014 at Baylor
University Law School or any other school within
Baylor University systems"8. On August 14, 2016
Plaintiff served his third request for production of
documents and tangible things (ROA.3678)
requesting disclosure and the production of
documents establishing the Judge Walter Smith, Jr.
Endowed Scholarship Fund in Law at Defendant's
University (ROA.3682).
18 Defendants opposed the motion for recusals arguing the
Magistrate was not employed at their institution for periods
stated and the magistrate never received payment for his
services.
34
August 28, 2016 Plaintiff filed his third motion to
compel evidence (ROA.3801) and requested the
Court deny Defendants request for a protective order
(ROA.3804). On September 13, 2016 Plaintiff served
his fourth motion to compel evidence sought in his
second set of interrogatories (ROA.3848) showing the
Court that Defendants objections were untimely
(ROA.3850), and requested an opportunity to enter
onto Defendants property to inspect documents
(ROA.3853) in which Defendant had fraudulently
submitted to the Court and argued that Defendants
were not entitled to the affirmative defense of
"consent" when it published defamatory statements
about this Plaintiff and statements within their
affidavit was not declared true and correct under
penalty of perjury (ROA.3850).
September 14, 2016 Plaintiff served his fifth
motion to compel evidence sought in his third set of
interrogatories (ROA.3867). ROA.3869 and
ROA.3870 unequivocally shows the Court where
Defendants lied about their relationship with
Magistrate Manske, and the pages also show how he
sought to cover up his relationship with Defendants,
thereby deceiving the public and this Plaintiff. On
September 19, 2016 Plaintiff served his sixth motion
to compel evidence sought in his third request for
production of documents (ROA.3880) seeking the
truth concerning the judges' relationships with
Defendant Baylor University.
Baylor University filed several objections and
responses to Plaintiff discovery request and motions
to compel refusing to fork over information in which
Plaintiff needed to ward off summary judgment and
to support his own motion for summary judgment.
35
After turning to the Court, the Magistrate did not so
much as raise a single discovery motion in his report
and recommendation because he had either denied
or rendered the motions moot via "text orders",
contrary to 28 U.S.C. 636(b)(1)(B).
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986),
this Court stated, "the parties had conducted
discovery, and no serious claim can be made that
respondent was in any sense "railroaded" by a
premature motion for summary judgment." "Any
potential problem with such premature motions can
be adequately dealt with under Rule 56(f), which
allows a summary judgement motion to be denied, or
the hearing on the motion to be continued, if the
nonmoving party has not had an opportunity to
make full discovery." Id.
The District Court "railroad" Petitioner by
adopting the magistrate report and recommendation
and declared without explanation or reference to the
record that the discovery motions were without
merit, overbroad, privileged, not relevant, and not
designed to lead to discovery of relevant
information", and greasing the tracks declared,
"[a]y motions not previously ruled upon by this
Court are DENIED". App. 26-27.
Although silent on the issue of discovery in the
current litigation, in O'mallev v. United States
Fidelity Guar. Co., 776 F.2d 494, 499, the Fifth
Circuit Court of appeals citing Brown v. Thompson,
430 F.2d 1214, 1216 stated, "[t]he trial court's
decision should be reversed only in an unusual and
exceptional case
and the "[flacts did not present
an unusual and exceptional case constituting an
...
J1
abuse of discretion due to
all evidence pointed to
the conclusion that the district court's decision to
deny discovery was supported by careful and
thoughtful reasoning".
...
In the case at bar, the record indicates: (1) the
district court did not address the issue concerning its
Local Rule CV-33, (2) whether Defendants agreeing
to electronic filing constitute consent to service of
discovery request and materials (ROA.3756), (3) no
opinion regarding the existence of a secret audio
recording of an alleged hostile learning environment
(ROA.3564), (4) whether Defendants objection to
discovery request was untimely and therefore
waived (ROA.3850), (5) not ruling on Defendants
Motion to Quash Discovery prior to granting
summary judgment (ROA.3754) (6) whether
Magistrate Manske and Defendants presented
misleading information to the court (ROA.3757), (7)
whether Defendants were entitled to a protection
order, (8) did not reach the issue of Defendants
refusal to comply with local rule CV-7(i) which
required certification that Defendants attempted to
confer in good faith on discovery matters
(ROA.3761), (9) failing to ascertain the gender of the
parties (ROA.3933), (10) whether the Magistrate
Judge and the District Judge has a financial interest
in Defendant's institution (R0A3682-3685), (11) the
Plaintiff briefs containing admission of an opposing
party (ROA.3070 and ROA.3134), or (12) the
materiality of discoverable information (ROA.40404041). The district court's conclusion is lacking all
indicia that its Order is supported by careful and
thoughtful reasoning.
37
VII. CONCLUSION
Therefore, this petition for a writ of certiorari
should be granted.
Respectfully Submitted,
Is! Bradrick J. Collins
P.O. Box 225071
Dallas, TX 75222
469-865-3290
38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.