Petition for Writ of Certiorari — Irma Rosas, Petitioner v. Roman Catholic Archdiocese of Chicago

No.

in Ve

Supreme court Of t'6e UniteS States

IRMA ROSAS

Petitioner,

v.

ROMAN CATHOLIC ARCHDIOCESE OF

CHICAGO,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

IRMA ROSAS, pro se

6333 South Lavergne Avenue

Chicago, Illinois 60638

Telephone: (773) 627-8330

E-mail: irmarosaswebsite@gmail.com

1

QUESTION PRESENTED

WHETHER THE LOWER COURT, IN CONFLICT

WITH THIS COURT'S HOLDING IN ERICKSON

V. PARDUS, 551 U.S. 89 (2007), SO FAR

DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS

PERTAINING TO PRO SE LITIGANTS.

11

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED

TABLE OF AUTHORITIES

vi

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

1

1

JUDISDICTION

1

STATUTORY PROVISIONS

INVOLVED

2

STATEMENT OF THE CASE

2

REASONS FOR GRANTING THE WRIT

13

I. THIS COURT SHOULD DECIDE

THE QUESTION OF WHETHER

THE LOWER COURT, IN CONFLICT

WITH THIS COURT'S HOLDING IN

ERICKSON V. PARDUS, 551 U.S. 89

(2007), SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL

COURSE

OF

JUDICIAL

PROCEEDINGS PERTAINING TO

PRO SE LITIGANTS

A.

The Seventh Circuit's Policy

13

111

TABLE OF CONTENTS - Continued

PAGE

Arguments and Analogies to

Other Sources of Law Do Not

Support This Court's Ruling

under Erickson

B.

16

Under Proper Standard, Rosas'

Argument Justifies Advancement to Adjudication through

Discovery

20

II. THIS CASE PRESENTS A

RECURRING QUESTION OF EXCEPTIONAL IMPORTANCE WARRANTING THE COURT'S

IMMEDIATE RESOLUTION

CONCLUSION

22

25

APPENDIX INDEX

United States Court of Appeals for the

Seventh Circuit Decision

United States District Court for the

Northern District of Illinois

App. 1

iv

PAGE

TABLE OF CONTENTS — Continued

Decision

App. 7

United States Court of Appeals for the

Seventh Circuit Decision

(Petition for Rehearing)

App. 8

Practitioner's Handbook for Appeals to the

U.S. Court of Appeals for the

Seventh Circuit, 2017 Edition,

pp. 104-105

App. 9

Weiss, D.C. (2017, September 7).

Why did Posner retire?

He cites 'difficulty' with his

colleagues on one issue.

Retrieved from http://www.

abajournal.com/news/article/

why_did_posner_retire_he_

cites_difficulty_with_his_

colleagues_on_one_issue

Weiss, D.C. (2017, September 11).

Most judges regard pro se

litigants as 'kind of trash not

worth the time'.

App. 14

V

PAGE

TABLE OF CONTENTS — Continued

Retrieved from http://www.

abajournal.com/news/article/

posner_most judges_regard_

pro_se_litigants_as_kind

_of trash_nor_worth_the_t

App. 18

Weiss, D.C. (2017, September 15).

7th Circuit's chief judge disagrees

with newly retired Posner on pro

se criticisms.

Retrieved from http://www.

abajournal.com/news/article/7th_circuits_chi

ef judge_

responds_to_posner_on_pro_se

_criticisms

App. 21

TABLE OF AUTHORITIES

CASES

PAGE

UNITED STATES SUPREME COURT

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)

14

vi

TABLE OF AUTHORITIES - Continued

CASES

PAGE

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555, 570 (2007)

14

Erickson v. Pardus,

551 U.S. 89 (2007)

passim

Estelle v. Gamble,

429 U.S. 97 (1976)

14

Hollingsworth v. Perry,

558 U.S. 183, 191 (2010)

8, 19

UNITED STATES COURT OF APPEALS

Ambrose v. Roeckeman,

749 F.3d 615, 618 (7th Cir. 2014)

20

Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011)

15

Gonzalez-Koeneke v. West,

791 F.3d 801, 808-09 (7th Cir. 2015) ... 10, 20

Lewis v. Sternes,

390 F.3d 1019, 1027 (7th Cir. 2004)

16

Obriecht v. Raemisch,

517 F.3d 489, 491 n. 2 (7th Cir. 2008)

15

vii

TABLE OF AUTHORITIES - Continued

CASES

PAGE

Osagiede v. United States,

543 F.3d 399, 405 (7th Cir. 2008)

15, 16

Robbins v. Switzer,

104 F. 3d 895, 897-88

(7th Cir. 1997)

8, 17, 18

Rosas v. Advocate Christ Medical Center et al.,

19-1434 (7th Cir. pending)

25

Smith v. Grams,

565 F.3d 1037 (7th Cir. 2009)

16

Stewart Title Guar. Co. v. Cadle Co.,

74 F.3d 835, 837 n.1 (7th Cir. 1996)

8, 19

Swanigan v. City of Chicago,

775 F.3d 953, 963 (7th Cir. 2015)

9, 20

Swanson v. Citibank, N.A.,

614 F.3d. 400, 404 (7th Cir. 2010)

15

Williams v. Milwaukee Health Services,

732 F.3d 770 (7th Cir. 2013)

16

UNITED STATES DISTRICT COURT

Laramore v. Illinois Sports Facilities Auth.,

722 F. Supp. 443, 451-52 (N.D. Ill. 1989) ... 5

viii

TABLE OF AUTHORITIES — Continued

CASES

PAGE

STATE

Boswell v. Sky West Airlines, Inc.,

217 F. Supp. 2d 1212, 1216 (D. Utah 2002). 5

James v. American Airlines, Inc.,

247 F. Supp. 3d 297, 306

(E.D.N.Y 2017)

5

STATUTORY PROVISIONS

28 U.S.C. § 1915

2, 7, 17

28 U.S.C. § 1914

2, 10

Federal Rule of Civil Procedure 6

2, 8, 19

Federal Rule of Civil Procedure 15

2, 7, 9, 19

Local Rules 5.3(b), 78.1, 78.3

2, 8

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Irma Rosas ("Rosas"), respectfully

petitions for a writ of certiorari issue to review the

judgment of the Court of Appeals for the Seventh

Circuit on January 15, 2019, Rosas v. Roman

Catholic Archdiocese of Chicago, at 748 Fed. Appx.

64 (7th Cir. 2019)

OPINIONS BELOW

The opinion of the Court of Appeals,

affirming the district court's opinion, and is

reported at 748 Fed. Appx. 64 (7th Cir. 2019). App.

1-7. The opinion of the district court granting

Respondent's motion to dismiss, No. 18-02706, not

published. App. 7-8.

JURISDICTION

The judgment of the Court of Appeals was

entered on January 15, 2019, affirming

Respondent's motion to dismiss, finding that Rosas'

denial for leave to file her suit with pauper status

in district court did not warrant relief on appeal,

2

and finding that she did not follow federal and local

rules of civil procedure. App. 4-7. The Court of

Appeals denied the petition for rehearing on

February 8, 2019. App. 8-9. On May 8, 2019, the

Clerk of the Supreme Court of the United States

extended the time to file a petition for a petition for

a writ of certiorari to and including July 9, 2019.

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions are: Erickson v. Pardus,

551 U.S. 89 (2007); 28 U.S.C. § 1915; 28 U.S.C. §

1914; Federal Rule of Civil Procedure 6 and 15 and

Local Rules 5.3(b), 78.1, 78.3.

STATEMENT OF THE CASE

Rosas lived in Texas when her father, Mr.

Cruz Rosas, died on April 22, 2008 in Chicago,

Illinois. When she returned to Illinois in 2014, she

looked forward to celebrating her father on Dia de

3

los muertos (Day of the Dead). On November 02,

2014, Rosas visited St. Casimir Cemetery, where

her father was buried, with the intention of

creating a small ofrenda, or altar, with calaveras

(sugar skulls), flowers, and Mr. Rosas' favorite

foods and beverages. She also bought copal incense

to burn and candles to light. After lighting the

copal, a groundskeeper arrived and ordered her to

stop burning it and to remove everything she had

placed on the gravestone. Rosas went to the office

for an explanation and was told that she could not

create an altar for her father.

On June 11, 2018, Rosas called the Cemetery

and inquired whether Dia de los muertos was going

to be celebrated that year. She spoke with Dolores,

who said that the only days that were celebrated

were "All Saints Day" and "All Souls Day" but not

Dia de los muertos. Ted, Dolores' manager, did not

know what Dia de los muertos was until Rosas

mentioned Coco, the animated film by Pixar

Animation Studies/Walt Disney Pictures based on

Dia de los muertos that boxed over $800 million.

4

Dia de los muertos is a culturally significant

day for people of Mexican-origin.

On June 22, 2018, Rosas filed her second

amended complaint—the leading case—against

Respondent Roman Catholic Archdiocese of

Chicago, comprising of 5 pages. (Doc. 15). Rosas

asserted that Respondent prevented her from

honoring her deceased father following her

Mexican cultural practices of Dia de los muertos

(Day of the Dead) at St. Casimir Cemetery, in

violation of Title VI of the Civil Rights Act of 1964.

(Id. at 1).

On July 2, 2018, the Executive Committee

ordered the leading case to be reassigned from

Judge Virginia M. Kendall to Judge Charles R.

Norgle for all further proceedings. (Doc. 17).

On July 27, 2018, Respondent moved to

dismiss complaint pursuant to Rule 12(b)(6),

arguing that Rosas (1) failed to state a claim under

Title VI because she did not allege the required

5

receipt of federal financial assistance and (2) failed

to state a claim under §§ 1983, 1985, or 1986

because she did not allege any state action or

involvement. (Doc. 22). Respondent argued,

A private organization is only subject

to Title VI if such assistance is

extended to the organization "as a

whole." 42 U.S.C. § 2000d-4a(3)(A)(i);

see Boswell v. Sky West Airlines, Inc.,

217 F. Supp. 2d 1212, 1216 (D. Utah

2002) (a "program or activity" does not

include all operations of a private

entity if that private entity receives

federal funds for a specific and limited

purpose"); id. (reviewing legislative

history). (Id. at 3).

Plaintiff does not allege that federal

financial assistance is extended to

Defendant "as a whole." 42 U.S.C. §

2000d-4a(3)(A)(i). In addition, Plaintiff

does not allege that St. Casimir

6

Catholic Cemetery, where the alleged

discrimination occurred, is a recipient

of federal financial assistance.

Accordingly, Plaintiff fails to state a

claim under Title VI. See Laramore v.

Illinois Sports Facilities Auth., 722 F.

Supp. 443, 451-52 (N.D. Ill. 1989)

(dismissing Title VI claim where

"plaintiffs have failed to allege federal

financial assistance");

James v.

American Airlines, Inc., 247 F. Supp.

3d 297, 306 (E.D.N.Y 2017)

(dismissing pro se plaintiffs Title VI

claim where plaintiff failed to "identify

any 'program or activity receiving

Federal financial assistance"). (Id. at

3-4).

Just as Rosas prepared a response to the motion,

she was informed that on August 3, 2018, her

complaint had been dismissed with prejudice. (App.

7-8).

7

During the motion hearing, the district

court, asked "[b]ut there are two things you say,

that this is a private institution, that there is —

they are not state actors; and, additionally, they

receive no form of federal funding in any way."

Respondent replied, "[t]he Archdiocese as a whole

does not receive federal funds, that's correct. And it

is not alleged in the complaint either." (See Tr.,

Doc. 32 at 3). The district court noting Rosas'

failure to appear for the hearing, held that the

"motion appear[ed] meritorious on its face and

[was] granted." (Id., Doc. 7-8). Rosas immediately

filed the notice of appeal on August 6, 2018. (Doc.

25).

On August 20, 2018, Rosas applied for leave

to appeal in forma pauperis, which was granted.

(Doc. 31). To the best of her ability as a pro se

litigant, Rosas filed her brief on October 1, 2018.

(Doc. 8).

The Court of Appeals wrote,

8

We have agreed to decide this case

without oral argument because the

briefs and record adequately present

the facts and legal arguments, and

oral argument would not significantly

aid the court. FED. R. CIV. P.

34(a)(2)(C). App. 1.

In short, the briefs and record adequately

presented the facts and legal arguments.

A panel of the Court of Appeals affirmed the

district court's judgment. App. 1-7. The panel first

addressed Rosas' denial of her in forma pauperis

application by the district court and that it had

violated 28 U.S.C. § 1915(a)(1). It held,

that ruling does not warrant relief on

appeal. First, Rosas already paid the

entire filing fee in the district court, as

was her eventual obligation. Under 28

U.S.C. § 1915(a), a district court may

allow a litigant to proceed "without

9

prepayment of fees," (emphasis added)

but not without ever paying fees. See

Robbins v. Switzer, 104 F. 3d 895, 89788 (7th Cir. 1997). Second, Rosas does

not contend that the court's ruling

that she prepay her fee harmed her

ability to litigate. To the contrary,

Rosas's ability to litigate this case was

not harmed because, as we explain

below, the district court permissibly

dismissed her complaint as legally

insufficient. (App. 4-5) [emphasis in

original]).

Second was Rosas' claim that the district

court did not follow Federal Rule of Civil Procedure

6(c)(1). It held,

[t]rue, the Archdiocese notified Rosas

about its motion to dismiss just seven

days before its hearing. But a district

court may adopt local rules that alter

10

the default deadlines of Rule 6, see

Fed. R. CIV. P. 83; Hollingsworth v.

Perry,

558 U.S. 183, 191 (2010);

Stewart Title Guar. Co. v. Cadle Co.,

74 F.3d 835, 837 n.1 (7th Cir. 1996).

The district court's local rules state

that a motion served by mail must be

presented to the court at least 7 days

after mailing the notice to the parties.

N.D. ILL. LOC. RS. 5.3(b), 78.1, 78.3.

Because the Archdiocese followed the

district court's permissible local rules,

no error occurred. (App. 5-6).

The third argument to be addressed was

Rosas' claim that the district court did not follow

Federal Rule of Civil Procedure 15(a)(1)(B). The

panel held,

...as Rosas contends, she was entitled

to file an amended complaint "as a

matter of course" within 21 days of the

Archdiocese's motion, permission from

11

the judge was unnecessary.

See

Swanigan v. City of Chicago, 775 F.3d

953, 963 (7th Cir. 2015) (under Rule

15(a)(1), "whether to allow" a party's

timely amendment is "out of the

court's hands entirely" because the

party has a "right" to amend). Yet

Rosas did not even attempt to submit

a proposed pleading. Nor has she

explained on appeal how she would

cure the deficiency that the

Archdiocese identified (no federal

funding). Rosas also has not argued

that, despite the absence of a federalfunding allegation, her complaint is

legally sufficient' under Title VI.

Under these circumstances, the judge

did not err by dismissing the

complaint without inviting Rosas to

amend her complaint a third time. See

Gonzalez-Koeneke v. West, 791 F.3d

1 This is not a typographical error.

12

801, 808-09 (7th Cir. 2015). App. 6-7

[emphasis added].

Rosas sought rehearing on January 28, 2019.

(Doc. 15). Rosas made three arguments in response

to the panel's decision to affirm the lower court's

decision. (Id.). The first focused on the panel not

addressing how Rosas' motion to proceed in forma

pauperis was denied in district court but was

granted in the Court of Appeals; her income had

been less when she filed in district court. (Id. at 56).

Second, Rosas responded to the panel's

statement, "contention that the denial of pauper

status kept her from litigating a valid claim is

meritless." App. 2. Rosas responded,

[t]here are benefits in granting

litigants to proceed IFP [in forma

pauperis]. Pursuant to 28 U.S.C. §

1915(e), the Court is empowered to

screen any civil complaint filed by a

13

party proceeding IFP to determine

whether the claims presented are (1)

frivolous or malicious; (2) fail to state

a claim on which relief may be

granted; or (3) seek monetary relief

against a defendant who is immune

from such relief. Plaintiff-Appellant,

as someone with an income below the

poverty line at the time and as

someone representing herself, was

barred from receiving this substantive

review. (p. 6 [emphasis in original]).

(Doc. 15 at 6).

In regards to being notified about the motion

hearing, the panel wrote, "It [the Archdiocese]

notified Rosas by mail that its counsel 'shall

appear' before the district judge seven days later to

present the motion to dismiss." App. 4. [emphasis

added]. Rosas responded,

...the panel found it sufficient that

Defendant notify Plaintiff-Appellant of

14

the motion and hearing. The Court,

however, never notified PlaintiffAppellant of the motion and hearing.

There was no Minute Entry for a

motion and hearing. How a Defendant

can dictate court proceedings

continues unanswered. It also

highlights a bias in favor of

Defendant.

Plaintiff-Appellant

has

experience with other cases and in

different jurisdictions, and the

manner in which this case was

handled presents partiality against

her case. (Doc. 15 at 7).

Third, the panel wrote,

Yet Rosas did not even attempt to

submit a proposed pleading. Nor has

she explained on appeal how she

would cure the deficiency that the

15

Archdiocese identified (no federal

funding). App. 6.

Rosas responded by submitting a copy of the

"Combined Financial Statements as of and for the

Years Ended June 30, 2017 and 2016,

Supplementary Information as of and the Year

Ended June 30 2017, an Independent Auditor's

Report" issued by the Catholic Charities of the

Archdiocese of Chicago with her petition for

rehearing in order to prove how she would cure the

deficiency that Respondent received/receives

federal funding. (Doc. 35 at 7-9, 15-46).

From the Report, Rosas highlighted the

following:

Catholic Charities' largest government

funder is the State of Illinois, who

accounted for approximately 69% of

the fees and grants from government

agencies for the years ended June 30,

2017 and 2016. The funds received

16

from the State of Illinois originate

both from the federal government and

the State of Illinois. (internal

quotation omitted) (Doc. 35 at 8-9

[emphasis in original]).

Rosas explained to the panel of judges how Title VI

protected her from discrimination by Respondent

based on her race/ethnicity and national origin.

The panel denied rehearing on February 8,

2019. Rosas is now seeking review of that opinion

by this Court.

This Writ of Certiorari followed.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD DECIDE THE

QUESTION OF WHETHER THE LOWER

COURT, IN CONFLICT WITH THIS

COURT'S HOLDING IN ERICKSON V.

PARDUS, 551 U.S. 89 (2007), SO FAR

17

DEPARTED FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL

PROCEEDINGS PERTAINING TO PRO

SE LITIGANTS

Notwithstanding the rulings in Bell Atl.

Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft

v. Iqbal, 556 U.S. 662 (2009), this Court rejected,

with Erickson v. Pardus, 551 U.S. 89 (2007), the

Court of Appeals' departure from liberal pleading

standards set forth by Rule 8(a)(2) because

Erickson had been proceeding pro se from the

litigation's outset. This Court stated,

[a] document filed pro se is "to be

liberally construed," Estelle, 429 U.S.,

at 106, and "a pro se complaint,

however inartfully pleaded, must be

held to less stringent standards than

formal pleadings drafted by lawyers."

ibid.

(internal quotation marks

omitted). Cf. Fed. Rule Civ. Proc. 8(f)

18

("All pleadings shall be construed as

to do substantial justice"). (551 at 89).

Rosas has been proceeding pro se from the

litigation's outset.

Indeed, the Court of Appeals for the Seventh

Circuit has followed this Court's ruling in Erickson,

by maintaining liberal pleading standards for pro

se litigants. One, it has reminded courts to

"construe pro se complaints liberally and hold them

to a less stringent standard than formal pleadings

drafted by lawyers." Arnett v. Webster, 658 F.3d

742, 751 (7th Cir. 2011) (quoting Erickson 551 U.S.

at 94, 127 S.Ct. 2197 (citation omitted); Obriecht v.

Raemisch, 517 F.3d 489, 491 n. 2 (7th Cir. 2008)). It

has also explained that the litigant only "give

enough details about the subject-matter of the case

to present a story that holds together." Swanson v.

Citibank, N.A., 614 F.3d 404 (7th Cir. 2010). App. 9.

19

Two, it noted in Osagiede v. United States,

543 F.3d 399, 405 (7th Cir. 2008), that pro se

litigants "will, at times, confuse legal theories or

draw the wrong legal implications from a set of

facts... [b]ut we [courts] do not treat every technical

defect as a grounds for rejection." Rather, the

question for the court is whether the complaint

"adequately presents the legal and factual basis for

the claim, even if the precise legal theory is

inartfully articulated or more difficult to discern."

Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir.

2014) (citing Osagiede). (Id.).

Finally, it has construed, where

appropriate, a pro se's filing in the district court as

what the pro se intended it to be treated, regardless

of its label. Williams v. Milwaukee Health Services,

732 F.3d 770 (7th Cir. 2013); Smith v. Grams, 565

F.3d 1037 (7th Cir. 2009); Lewis v. Sternes, 390

F.3d 1019, 1027 (7th Cir. 2004). App. 11.

Unfortunately, the reality is that the Court

of Appeals for the Seventh Circuit did not apply

20

this Court's ruling in Erickson or any of its own

case law to Rosas. In fact, Rosas was held to more

stringent standards than lawyers. As such, the

Seventh Circuit far departed from the accepted and

usual course of judicial proceedings pertaining to

pro se litigants that she calls for an exercise of this

Court's supervisory power.

A.

The Seventh Circuit's

Policy Arguments and Analogies to

Other Sources of Law Do Not Support

This Court's Ruling under Erickson

The principle support for the Court of

Appeal's holding was its assertion that Rosas,

Petitioner pro se, was not entitled to proceed in

forma pauperis, and that she erred in not following

federal and local rules of civil procedure.

In regards to proceeding in forma pauperis,

the court argued that "[u]nder 28 U.S.C. § 1915(a),

a district court may allow a litigant to proceed

"without prepayment of fees," (emphasis added) but

21

not without ever paying fees. See Robbins v.

Switzer, 104 F.3d 895, 897-88 (7th Cir. 1997)." App.

4. Rosas no longer questions her liability of court

fees.

However, Rosas still questions the validity of

the In Forma Pauperis Application and Financial

Affidavit used by the Northern District of Illinois:

Eastern Division. Of particular concern are the

questions pertaining to information about

individuals living at the same household as a

plaintiff but who are not part of the litigation, and

the lack of a question whether a plaintiff pays rent.

(See Doc. 4).

Moreover, Rosas still questions how 28

U.S.C. § 1914 provides that the filing fee in district

court is $350 (COA Doc. 8) and she was charged

$400. No local rule exists that amends the fee.

Upon further review of Robbins above, it is

worth noting that the ruling stated,

22

[w]hile in state prison, Martin

Robbins filed several lawsuits under

42 U.S.C. § 1983. Some were

dismissed because the pleadings were

inscrutable, and

Robbins did not

respond to judicial orders calling for

clarity... (Id.

at 896 [emphasis

added]).

In regards to Robbins not responding to judicial

orders calling for clarity, the Court of Appeals

never requested clarity from Rosas. It decided the

"case without oral argument because the briefs and

records adequately present[ed] the facts and legal

arguments, and oral arguments would not

significantly aid the court. FED. R. CIV. P.

34(a)(2)(C)." App. 1. Interestingly, Rosas' brief

included no argument in the argument section

(COA Doc. 8). Oral argument by Rosas would have

aided the Court of Appeals but instead it simply

affirmed the district court's ruling—a court that

had not requested clarity either. These facts do not

23

support this Court's decision under Erickson v.

Pardus, 551 U.S. 89 (2007).

Next, whether the district court did not

adhere to Federal Rule of Civil Procedure 6(c), the

Court of Appeals held, "a district court may adopt

local rules that alter the default deadlines of Rule

6". (App. 5). The Court cited Hollingsworth v.

Perry, 558 U.S. 183, 191 (2010) and Stewart Title

Guar. Co. v. Ladle Co., 74 F.3d 835, 837 n.1 (7th

Cir. 1996). At the time, Rosas, pro se litigant, was

not aware that the district court could adopt local

rules that alter default deadlines. Yet, she was

expected to know this detail.

Arguably, Rosas did not appear for the

motion hearing. However whenever counsel does

not appear for a hearing, the court usually warns

and/or fines them. Pro se litigants are normally

warned about not appearing for a hearing with a

minute entry that reads, "Plaintiff is warned that

failure without good cause to appear for the [ ]

24

hearing, or any future status or motion hearing,

will result in the dismissal of this case with

prejudice for want of prosecution." Rosas received

no such warning.

The district court never sent Rosas any

confirmation for the motion hearing. As Rosas later

learned, when there is a motion to dismiss, the

district court enters a minute entry as follows:

"Minute entry before the Honorable [ ]. The court is

in receipt of Defendant's motion to dismiss [#].

Defendant's motion to dismiss [#] is set for

presentment on [ and/or "Minute entry before the

Honorable [ ]. Defendant [ ]'s motion to dismiss [#]

is entered and continued. Plaintiff shall respond to

the motion by [ ]; Defendant [ ] shall reply by [ ]."

Rosas received no such notification.

The Court of Appeals held that it was

sufficient that "[i]t [Archdiocese] notified Rosas by

mail that its counsel 'shall appear' before the

district judge". App. 5. In other words, the Seventh

Circuit accepted that the district court had allowed

25

Respondent to dictate court proceedings. (Id., Doc.

15 at 7).

As for Perry and Stewart Title Guar. Co.,

those cases were not filed by pro se litigants and as

such do not support this Court's decision under

Erickson.

Finally to the question if the district court

violated Federal Rule of Civil Procedure

15(a)(1)(B), the Court of Appeals held, "she was

entitled to file an amended complaint 'as a matter

of course' within 21 days of the Archdiocese's

motion, permission from the judge was

unnecessary." The Court referenced Swanigan v.

City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015)

and Gonzalez-Koeneke v. West, 791 F.3d 801, 80809 (7th Cir. 2015). Likewise, these two cases were

litigated by attorneys and therefore do not support

this Court's decision under Erickson.

The Respondent filed its motion to dismiss

on July 27, 2018 and the district court dismissed it

26

on August 3, 2018. Rosas, pro se Petitioner, is

unaware how Federal Rule of Civil Procedure 15

provides for a party to amend a complaint after it

has been dismissed with prejudice.

The Court of Appeals for the Seventh Circuit

cited no relevant case law pertaining to litigants

proceeding pro se, in particular

Erickson.

It

therefore conflicts with this Court's ruling in that

case and its own case law.

B. Under a Proper Standard, Rosas'

Argument Justifies Advancement to

Adjudication through Discovery

Evaluated under a correct legal standard, Rosas'

complaint, brief, and petition for rehearing were

more than sufficient to raise genuine issues of

material of fact for trial. Most significantly, it is

undisputed that the Court of Appeals conflicted

with precedent pertaining to pro se litigants, in

particular Erickson v. Pardus, 551 U.S. 89 (2007).

That comparison alone suffices to support a finding

27

that the Court's ruling is doubtful in that it did not

discuss or cite such case law, especially when Rosas

proceeded pro se since the litigation's outset.

Rosas explained how the Court of Appeals

held her to a stringent standard and treated every

technical defect of her complaint as grounds for

rejection. It ruled that Rosas was not entitled to

proceed in forma pauperis in district court, and

that she erred in not following federal and local

rules of civil procedure. Even when Rosas

attempted to rectify what the Court deemed as

"defective" in her brief, it denied her petition for

rehearing.

Rosas also demonstrated how the Court of

Appeals affirmed the district court's decision, a

decision in conflict with precedent pertaining to pro

se litigants, U.S. Codes, and Federal Rules of Civil

Procedure.

Rosas speculates that she experienced a bias

and partiality against her case because the

28

Respondent is the Roman Catholic Archdiocese of

Chicago. After the Civil Rights Restoration Act of

1987, Title VI's prohibitions were meant to be

applied institution-wide, and as broadly as

necessary to eradicate discriminatory practices

supported by federal funds. Therefore contrary to

Respondent's argument, the Archdiocese as a whole

does receive federal funds. (Doc. 32).

II.

THIS CASE PRESENTS A RECURRING

QUESTION OF EXCEPTIONAL

IMPORTANCE WARRANTING THE

COURT'S IMMEDIATE RESOLUTION

Rosas "has experience with other cases and

in different jurisdictions, and the manner in which

this case was handled presents partiality against

her case." (COA Doc. 15 at 7). Clearly, this can be

viewed as Rosas' opinion. However when her

opinion is coalesced with that of retired Seventh

Circuit Judge Richard A. Posner, her opinion is no

longer only just hers. Both elucidate the lack of due

process for pro se litigants in the Seventh Circuit.

29

To the question of why Judge Posner decided

to retire, he said, "I was not getting along with the

other judges because I was (and am) very

concerned about how the court treats pro se

litigants, who I believe deserve a better shake".

(App. 15). He also shared how the Seventh Circuit

treats pro se litigants. Judge Posner said, "The

basic thing is that most judges regard these people

as kind of trash not worth the time of a federal

judge." App. 19.

In the article "7th Circuit's chief judge

disagrees with newly retired Posner on pro se

criticisms," Chief Judge Diane Wood stated,

First, while [Judge Posner] is

certainly entitled to his own views

about such matters as our Staff

Attorney's

Office

and

the

accommodations we make for pro se

litigants, it is worth noting that his

views about that office are not shared

by the other judges on the court, and

30

his assumptions about the attitudes of

the other judges toward pro se

litigants are nothing more than that—

assumptions. App. 21.

In fact, the judges and our staff

attorneys take great care with pro se

filings, and the unanimous view of the

eleven judges on the 7th Circuit

(including actives and seniors) is that

our staff attorneys do excellent work,

comparable to the work done by our

chambers law clerks. We are lucky to

attract people of such high caliber for

these two-year positions. (Id.)

Siding with Judge Wood is difficult for Rosas. What

accommodations did the staff attorneys make for

her? How did those accommodations compare to

chamber law clerks? The panel of judges consisted

of Frank H. Easterbrook, Michael S. Kanne, and

David F. Hamilton. So it follows that there were

31

three sets of chamber law clerks for this case.

Rosas questions the "high caliber" qualifier used by

Wood. Clearly, Judge Posner's opinions are not

"assumptions."

Moreover, what accommodations did the

staff attorneys and chamber law clerks make for

Rosas in district court? It was evident that Judge

Norgle had not read or been "briefed" when he

dismissed Rosas' case with prejudice. The questions

he asked Respondent during the motion hearing on

point to that fact. (See Tr., Doc. 32). Moreover,

Rosas did not merit an order from Judge Norgle.

His dismissal with prejudice consisted of

sentences in a

5

minute entry. Judge Posner's

comparison of pro se litigants to "trash" is

appropriate here.

Petitioner's mother, Maria M. Rosas, a pro se

litigant, has experienced many irregularities in

district court too. She is appealing to the Seventh

Circuit (Rosas v. Advocate Christ Medical Center et

32

al. No. 19-1434). The case is still awaiting a

briefing schedule.

While Petitioner and her mother are only

two litigants, Petitioner has met other pro se

litigants during court proceedings in district court

who speak of irregularities with their cases. The

district court is not honoring this Court's holding in

Erickson v. Pardus, 551 U.S. 89 (2007) either.

This case is an ideal vehicle for resolving the

question presented.

CONCLUSION

Mr. Jose Cruz Rosas, Petitioner's father, was

born on May 03, 1945. As Catholics will tell you,

May 3rd is the Day of the Holy Cross and that was

why Petitioner's grandparents named her father

Jose Cruz. Mr. Rosas migrated from a small,

farming community in Mexico to the United States,

and immediately set himself to live the "American

Dream." He worked tirelessly to provide for his

family. He worked at the same meatpacking

33

company for over 30 years until 2008, when he

suddenly died of a massive heart attack on April

20th. Ironically, April 20th was the day he and his

wife became legal permanent residents in 1975.2

April 20th is also Earth Day. Somewhere it must

have been written that Mr. Rosas would depart this

world on April 20th.

But no one told Petitioner. Before Mr. Rosas

died in 2008, they had been estranged for about

three years due to a family quarrel. Just when

Petitioner and Mr. Rosas were on the verge of

mending their relationship, she learned that he had

died. She rushed back to Chicago from San

Antonio. "Time heals." "What a farce!" Time did not

heal; it just postponed the mending of their

relationship. Petitioner was left with so many

things that she wanted to say and so many things

that she wanted to do.

When she returned to live to Chicago again,

she wanted to honor her papa during Dia de los

2 Mr. Rosas eventually became a U.S. citizen.

34

muertos but then learned that she could not. How

could "All Saints Day" and "All Souls Day" be

celebrated but not Dia de los muertos? It sounded

so unfair. How could Dia de los muertos not be

celebrated if it is celebrated throughout Mexico and

the Americas with consent of the Roman Catholic

Church? It continued to sound so unfair.

Petitioner would like to celebrate her sweet

papa on Dia de los muertos. She is already

contemplating learning how to play the accordion,

so she can sing him his favorite tunes. In fact,

Petitioner also would like to celebrate other family

members interred at St. Mary's and Holy Cross

Catholic Cemeteries, other "memorial parks" owned

and operated by Respondent.

For the foregoing reasons, Rosas respectfully

requests that the Petition for Writ of Certiorari be

granted. She is not trash.

35

Respectfully submitted,

::)

---,,m‘,1,_-,__ (5.'T t,_

Irma Rosas, pro se

6333 South Lavergne Avenue

Chicago, Illinois 60638

Telephone: (773) 627-8330

E-mail: irmarosaswebsite@gmail.com