Petition for Writ of Certiorari — Tucker v. Northeast Savings

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IN THE JOSEPH F. SPANIOL, JR.

CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1988

No

STANLEY V. TUCKER,

Petitioner

ose

NORTHEAST SAVINGS, FA.

ROBERT R. BASINE,

DONNA GALLUZIO,

LORRAINE WHITEHOUSE,

d/b/a CAPITAL WEST.

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SECOND CIRCUIT COURT OF APPEALS

STANLEY V. TUCKER

Petitioner

Box 35

Hartford, Conn 06101

203 523 5781

QUESTIONS PRESENTED

1.

4.

Where the 9th CA has repeatedly held a pro se com-

plaint cannot be dismissed without leave to amend

a statement by court of amendments needed did the

2nd CA deny due process by not adopting this rule.

Where the Columbia Circuit has repeatedly held

summary judgment cannot be granted on a pro se com-

plaint without leave to amend and statement by

court of amendments needed did the 2nd CA deny due

process by not adopting this rule.

Where this pro se Petitioner's complaint

challenged on due process ground Conn. Practice

Book S 504-510 adopted by the judges in a non

judicial role did the District Court have

jurisdiction over this challenge.

Where federal law changed in 1983 on due process

notice did the 2nd CA and Trial Court err holding

in 1981 Petitioner could have litigated this

unknown law.

-ii-

INDEX Page

Citation to Opinions Below 1

Jurisdiction l

Questions Presented 2

Constitutional & Statutory Provisions 2

Statement of the Case 2

Factual Background 4

SUBSTANTIAL REASONS FOR GRANTING WRIT

I. DECISION HEAD-ON CONFLICT 9th CA 4

Il. DECISION HEAD-ON CLONFLICT COLUMBIA 9

III. LAW OVER COURT RULES MIS-STATED 10

IV. LOWER COURT ERRED SAYING PETITLIONERLS5

COULD HAVE LITIGATED UNKOWN LAW

V. 2nd CA VIOLATED THIS COURT's RULE 18

UNKNOWN LAW CAN BE LITIGATED IN

FOLLOW ON CASE

VI. 2nd CA ERRED ON STANDING 21

VII. ABSTENSION NOT APPLICABLE 22

VIII. RES JUDICATA NOT APPLICABLE - 25

LAW CHANGED - ISSUES DIFFERENT

PARTIES DIFFERENT

IX. 2nd CA GAS CHAMBER FOR PRO SE 27

CONCLUSION 28

Conn GS 51-14 Appendix A

5th & 14th Amendments ; B

Conn Practice Book S 504-510 " C

2nd CA DEnial Re-Hearing in Banc "' D

2nd CA Dismissal Appeal ere

Dismissal by District Court " F

1-F14

-iii-

TABLE OF AUTHORITIES Page

connecticut 51-14 3,4

Conn GS 52-361 13,14

Conn Practict Book S 504-510 3,10,14,24

Tucker v American Insurance 23

3 Conn App at 399

Tucker v American Insurance 23

196 Conn 802

Federal

5th & 14th Amendments to Constitution 2

28 USC 1254 (1) 1

28 USC 2257 14

FRCP Rule 8(c) 25

FRCP Rule 12b (6) 14

Supreme Court Rule 17.1 (a) 10

Bates v State Bar of Arizona ll

433 US at 384

Beltran v Calif & United Farm Workers 24

9th CA No 87-5942 & 87-5943

Bretz v Kelman 7

773 F 2d at 1027

Broughton v Cutter Labs 6

622 F 2d at 459

Brown v Board of Bar Examiners 14

623 F 2d 605

Curtiss Publishing Co v Butts 19,20

388 US 143

D.C. Court of Appeals v Feldman 12,13,14

460 US at 485

Eldridge v Block 8

832 F 2d at 1135

-iv-

TABLE OF AUTHORITIES Page

Garguil v Tompkins 7,22

704 F 2d at 666

Jones v Miller 26

2 FRD 479

In re Longhorn Securities Litigation 28

573 F Supp 255

In re Summers 13

325 US at 566

Karim-Panahi v Los Angeles Police Dept5

839 F 2d 621

Lombard v Bd Ed NYC Pe

502 F 2d at 675

Lathrop v Donohue 11, 12

367 US at 566

Mathews v Eldridge 17,18

424 US 319

Memphis L & P v Craft 17,18

436 US 1

Middlesex County Ethics v Garden State 24

457 US 423,431

Muchard v Bereman 27

307 F 2d 368

Nelson v Regan 16,27

560 F Supp 1101

Noll v Carlson 5

809 F 2d 1446

106 Mile Transport Asso v Koch 21

656 F Supp at 148

Pennzoil Co v Texaco 22

55 LW 4457

Simon v Eastern Ky

426 US at 26 22

Sup Ct Va v Consumers 446 US 719,731 12,28

Wright v Tanezio !ISDC Conn 81-353 16,27

U.S. v Harrison County 399 F 2d 485 26

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

No

STANLEY V. TUCKER,

Petitioner

-V-

NORTHEAST (short title)

PETITION FOR A WRIT OF CERTIORARI TO

THE SECOND CIRCUIT COURT OF APPEALS

Petitioner prays that a writ of certiorari issue to

review the judgment of the 2nd CA made May 2, 1988

dismissing Petitioners Appeal. Timely Petition for Re-

Hearing in Banc filed and denied July 5, 1988.

CITATION TO OPINIONS BELOW

To the knowledge of this Petitioner 2nd C.A. decisions

are not reported. The decisions printed in Appendix

D-E -F.

JURISDICTION

The judgment of the Second Circuit Court of Appeals

entered July 5th, 1988. The jurisdiction of this

court is invoked under Title 28 USC 1254 (1)

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves a denial of procedural due process

and equal protection of the laws the 5th and 14th

amendments to the US Constitution, as set forth in

Appendix B.

This case involves Conn GS 51-14 which limits state

judges to rules of practice. Appendix A.

This case involves challenge to Conn P.B. 504-510

without notice of defenses prior Appendix C. to

seizure of private property.

STATEMENT OF THE CASE

This action challenges the constitutionality of

Conn. Practice Book 504-510 which permit the seizure

of private property without giving debtor notice of

his defenses.

This action challenges Conn P.B. 504-510 on due

process grounds as affecting substantial rights and

being in violation of Conn. GS 51-14 limiting the

state judges to “rules of procedure only"

Petitioner raised his challenge in the District

Court of Conn. by civil rights complaint, First

Amended Complaint 4-23-87. Trial judge dismissed the

complaint on grounds he had no jurisdiction and the

Petitioner “could have litigated these issues in state

court".

On appeal to the 2nd CA Petitioner timely filed

his Brief and Appendix. The 2nd CA dismissed on

hearsay allegations repudiated under oath by this

Petitioner.

Petitioner filed timely motion for re-hearing in

banc based on 9th CA decisions reported in news

media. Petitioner asked for reversal so he might

amend with Trial Court directed to state amendments

needed. Re-hearing denied.

Thus the constitutional challenge properly raised

: clit

in DC and 2nd CA and rejected on erroneous grounds.

FACTUAL BACKGROUND

The respondent bank was able in state court on

hearsay motions to obtain a rent receiver under Conn

P.B. 504-510 without ever giving this Petitioner

notice of his defenses. Bank used the rent receiver

for years to build up a mass of unpaid taxes and

mortgage and with neglected conditions to secure

“strict foreclosure” by low value on properties.

Within a short time the Bank resold at double the

money with the property in same condition. Four

properties the bank foreclosed with enormous loss of

rents to this petitioner.

SUBSTANTIAL REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW IS HEAD ON CONFLICT WITH

9th CIRCUIT COURT OF APPEALS.

The Circuits are in sharp conflict on due process

rights of pro se litigants and this is most important

and most powerful reason for this court to grant the

writ of certiorari.

wie

Karim-Panahi v Los Angeles Police Dept

839 F 2d 621

"in pro se civil rights cases court

must construe pleading liberally

and must afford plaintiff benefit

of any doubt; moreover before dis-

missing pro se complaint for failure

to state a claim, district court

must give plaintiff statementof

complaint's deficiencies. FRCP 12(b)

(6) 42 USC 1983."

While the motion to dismiss granted was for

failure to state a claim the Trial Judge did not use

this ground but used grounds of HIS OWN INVENTION all

without leave to amend, without notice.

Noll v Carlson

809 F 2d 1446 at 1448

" The rule favoring liberality in amend-

ments to pleadings is particularly impor-

tant for the pro se litigant. Presumably

unskilled in the law, the pro se litigant is

far more prone to making errors in plead-

ing than the person who benefits from the

representation of counsel. Indeed, the Su-

preme Court has held that allegations of a

pro se complaint are held to less stringent

standards than formal pleadings drafted by

lawyers. Haines v. Kerner, 404 US. 519,

520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d

652 (1972) (Per Curiam); see also Maurer

v. Individually and as Members of Los

Angeles County Sheriff's Dept., 691 F.2d

434, 437 (9th Cir.1982); Gillespie v. Civilet-

ti, 629 F.2d 637, 640 (9th Cir.1980). "

- o

This Petitioner would have been delighted if the

2nd CA had reversed with directions to Trial

Court to state amendments needed because surely he

would have made those amendments.

Broughton v Cutter Labs

622 7 2d at 459

" State prisoner was entitled to an oppor-

tunity to amend his pro se civil rights com-

plaint so as to attempt to allege facts suffi-

cient tc support an action for deliberate

indifference to his medical needs; while it

was a close question as to whether his com-

plaint was frivolous, dismissal of his com-

plaint was inappropriate. "

In the lower court this Petitioner was dismissed

on grounds of lack of jurisdiction over constitutional

challenge to state court rules and on lack of standing

although he alleged continuing damages. If he needed

a statement of amendments needed he is the first

person to admit it and to welcome such a statement.

Bretz v Kelman

773 F 2d at 1027

"{1] After he was exonerated on the al-

legedly framed charges, Bretz filed plead-

ings, which, when liberally construed, al-

lege a cause of action under 42 U.S.C.

§ 1983 and § 1985.! The district court,

treating the papers as pleadings which at-

tempted to federalize a routine state tort

claim for malicious prosecution and slan-

der, dismissed the claim. A divided panel

of this court affirmed. Bretz v. Kelman,

722 F.2d 503 (9th Cir.1983), withdrawn,

729 F.2d 613 (9th Cir.1984). We took this

case en banc along with two other § 1983

prisoner claims because of the importance

and complexity of the questions and the

doctrinal ambiguity which exists in this cir-

cuit over application of Parratt v. Taylor,

451 US. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420

(1981).2 "

This case is of importance to all property owners

in Connecticut where annually thousands of properties

are foreclosed without due process of law. A constitu-

tional challenge can never succeed if dismissed... "be-

cause it might have been litigated in state court.."

See: Garquil v romps. 704 F 2d at 666

Lombard v C 502 F 2d at 675

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gp

!

9

1

Eldridge v Block

832 F 2d at IT1ls5

" In exercising its discretion with regard to

the amendment of pleadings, “a court must

be guided by the underlying purpose of

Rule 15—to facilitate decision on the merits

rather than on the pleadings or technicali-

ties.” United States v. Webb, 655 F.2d

977, 979 (9th Cir.1981). This court has

noted “on several occasions.... that the

‘Supreme Court has instructed the lower

federal courts to heed carefully the com-

mand of Rule 1i(a), Ffed].R.Civ.P., by free-

ly granting leave to amend when justice so

requires.’” Gabrielson v. Montgomery

Ward & Co., 785 F.2d 762, 765 (9th Cir.

1986) (quoting Howey v. United States, 481

F.2d 1187, 1190 (9th Cir.1973) (citations

omitted). Thus “Rule 15’s policy of favor- -

ing amendments to pleadings should be

applied with ‘extreme liberality.’” Webb,

655 F.2d at 979 (citing Rosenberg Brothers’

& Co. v. Arnold, 288 F.2d 406 (9th Cir.

1960) (per curiam)).

{1} This policy is applied even more lib-

erally to pro se litigants. Thus in Arni-

strong v. Rushing, 352 F.2d 836 (9th Cir.

1965), this court established that a pro se

litigant bringing a civil rights suit must

have an opportunity tq amend the com-

plaint to overcome deficiencies unless it is

clear that they cannot be overcome by

amendment. 352 F.2d at 837 (pro Be liti-

gant entitled to procedural protections, in-

cluding right to amend complaint unless

futile); see Noll v. Carlson, 809 F.2d 1446,

1448 (9th Cir.1987); Potter v. McCall, 433

F.2d 1087, 1088 (9th Cir.1970) (per curiam). "

-“

In the 2nd CA this Petitioner was subjected to the

practices of Justice Feinberg's “gas chamber for pro

se" litigants. His briefs citing cases from this

Honorable United States Supreme Court were not read,

his cases ignored. Oral argument denied. His briefs

& Appendix cycled and re-cycled in mails. His motion

for re-hearing in banc denied as to his due process

rights. The motion to dismiss the appeal was based on

hearsay REPUDIATED UNDER OATH BY THIS PETITIONER.

II. THE DECISION BY 2nd CA IN HEAD ON CONFLICT WITH

COLUMBIA CIRCUIT

The news media have reported a line of cases from

the Columbia Circuit that mirror the cases, supra,

from the 9th CA upholding due process right to amend

with statement of amendments needed before Summary

Judgment can be entered on a pro se complaint.

This petitioner has experienced difficulty in re-

locating the news clip and if this Court grants the

Writ of Certiorari plans to visit Washington DC to go

to the Clerks Office of Columbia Circuit to find these

cases and report to this court in his brief.

-10-

Two circuits in conflict with the 2nd CA are

over important due process rights for pro se litigants

are sound grounds for granting the writ of certiorari.

Rule 17.1 (a) Rules of the United States Supreme

Court

III. DISTRICT COURT MIS-STATED LAW OVER

CONSTITUTIONAL CHALLENGE TO STATE

COURT RULES P.B. 504-510

The District Court dismissed on grounds it lacked

jurisdiction to review the state courts judgment

whereas this Petitioner asked the District Court to

REVIEW AND HOLD UNCONSTITUTIONAL THE STATE COURT

RULES.

This is a major error on the part of the judge

that he did not see the distinction the Honorable US

Supreme Court has made in a line of cases attacking on

constitutional grounds state court or state bar

rules. This is an all important distinction that the

attack is on the state court in its legislative

capacity and not in its judicial capacity.

pita

boc v Donahue

at 960

"Integration of the Bar in Wisconsin bore no resemblance

to adjudication. The State Supreme Court’s action

disposed of no litigation between parties. Rather the

court sought to regulate the profession by applying

its orders to all present members of the Bar and to all

persons coming within the described ‘class in the future.

('f. Hamilton v. Regents, supra, p. 258; King Manufactur-

ing Co. v. City Council, supra, p. 104. As such, the action —

hed the characteristics of legis!ation. We conclude that

the appeal is cognizable under § 1257 (2). We therefore

proceed to the consideration of the merits.

In 1976 This Honorable Court upheld a lst

Amendment challenge to Arizona State Bar prohibiting

attorney advertising.

Bates v State Bar of Arizona

433 US at 384

"The constitutional issue in this ease is only whether the

State may prevent the publication in a newspaper of appel-

lants’ truthful advertisement conecrning the availability and

terms of routine legal services. We rule simply that the flow

of such information may not be restrained, and we therefore

hold the present application of the disciplinary rule against

appellants to be violative of the First Amendment.

The judgment of the Supreme Court of Arizona is therefore

affirmed in part and reversed in part."

It is so ordered.

In this action the law changed in 1983 to define

and affirm due process rights to notice of defenses

att.

where their property seized by creditor whereas this

Petitioner faced four foreclosures under state court

rules adopted without jurisdiction and that deny due

process of law permitting a creditor bank to seize

rents without notice of defenses to debtors 100%

ignorant of their defenses. This Honorable Court has

again and again upheld jurisdiction over consti tu-

tional challenges to state court rules adopted by the

Judges in their legislative capacity and not in their

judicial capacity.

See E.G. Supreme Court of Virginia v. Consumers Union

440 US /19, /3l

Lathrop v Donohue, 367 US at 566

D.C. Court of Appeals v Feldman

460 US at 485 1982 " During the

course of its opinion, the Court of Appeals stated:

“The United States District Court, in denying [the

plaintiff] relief, declared that there is a subtle but funda-

mental distinction between two types of claims which a

frustrated bar applicant might bring to federal court:

The first is a constitutional challenge to the state's gen-

eral rules and regulations governing admission; the sec-

ond is a claim, based on constitutional or other grounds,

that the state has unlawfully denied a particular appli-

cant admission. The Court held that while federal

courts do exercise jurisdiction over many constitutional

claims which attack the state’s power to license attor- :

neys involving challenges to either the rule-making au- |

|

ee a

thority or the administration of the rules, . . . such is not

true where review of a state court's adjudication of a par-

ticular application is sought. The Court ruled that the

latter claim may be heard, if at all, exclusively by the

Supreme Court of the United States.” /d., at 597 (em-

se

"The Court of Appeals for the Tenth Circuit in Doe v. _

Pringle, supra, properly emphasized the distinction

between general challenges to state bar admission

rules and claims that a state court has unlawfully

denied a particular applicant admission. We have

recognized that state supreme courts may act in a

nonjudicial capacity in promulgating rules regulating

the bar. See, e.g.., Supreme Court of Virginia v.

Consumers Union, 446 U. S. 719, 731 (1980); Lathrop v.

Donohue, 367 U.S. at 827 (plurality opinion); In re

Summers, 325 U. S. at 566. Challenges to the

constitutionality of state bar rules, therefore, do

not necessarily require a United States district court

to review a final state-court judgment in a judicial

proceeding. Instead, the district court may simply be

asked to assess the validity of a rule promulgated in

a nonjudicial proceeding. If this is the case, the

district court is not reviewing a state court judicial

decision. In this regard, 28 U. S. C. & 1257 does not"

See also v Board of Bar Examiners, 623 F

2d 605 (CA9 1980).

-14-

D.C. Court of Appeals v Feldman

460 US at 485 [982 - continued

“act as a bar to the district courts consideration of

the case and because the proceedings giving rise to

the rule are nonjudicial the policies prohibiting

United States district court review of final state

court judgments are not implicated.

United States district courts, therefore, have

subject matter jurisdiction over general challenges to

state bar rules, promulgated by state courts in

nonjudicial proceedings, which do not require review

of a final state court judgment in a particular case.

They do not have jurisdiction, however, over

challenges to state court decisions in particular

cases arising out of judicial proceedings even if

those challenges allege that the state court's action

was unconstitutional. Review of those decisions may

be had only in this court. 28 U. S. S. 1257."

The District Court erred because the use of

unconstitutional rules PB 504-510 is made in

foreclosure actions by banks and attorneys greedy to

seize property by any means fair or foul the District

ee

«1§-

Court thought he was asked to review state court

judgments. SUCH IS NOT THE CASE! The D.C. was asked

to review constitutionality of Conn Practice Book

504-510; state judgment-Merely a by-product of these

rules!

IV. DISTRICT COURT ERRED SAYING THAT PETITIONER

COULD HAVE LITIGATED LAW THAT DID NOT EXIST

This Petitioner filed his state court pleadings in

1981 based upon state law as, it existed. Petitioner

filed a sworn statement in lower court that he could

not and did not litigate issues brought up in this

cases because the law did not exist in 1981. Federal

law on notice of defenses to debtors first arose in

Conn. in 1983 and while in his appeal this Petitioner

tried to raise this issue the Connecticut Supreme

Court would not and did not address this issue as it

only reviews matters or issues brought up in the Trial

Court.

The claim by respondents that this action is a re-

litigation is a false claim as is the statement by the

District Court that this matter could have been liti-

" aan ail

x"s |

gated in the state court. The state court proceedings

started in 1979 went to final judgment in 1985 and

nothing more can be litigated therein.

Wright v Tanezio

USDC Conn No -353 3-11-83

“Conn GS 52-361 fails to provide prior

to wage execution...

and meaningtul opportuni ae pdequace

heard aC a meaningful time”

Connecticut law on wage executions now amended to

give debtors a form with notice of defenses and

opportunity to be heard on these defenses.

See companion case challenging on same grounds Conn

IRS intercept statute.

Nelson v Regan

560 F Supp 101

Jan 14, 1983

Constitutional Law 286

Internal Revenue 4973

"Federal state intercept program, under

which federal income tax refunds may be

transferred to state to extent of taxpayer's

past-due support obligations, violated tax-

payer's due process rights, in that preintercept

notice and postintercept notice failed to

meet due process requirements for notice,

as neither mentioned possible defenses

individual might have to interception of"

a

-]7-

“tax refunds or the availability of regular

procedures in which to challenge offset,

and taxpayers did not have available an

opportunity to be heard at a meaningful

time and in a meaningful manner. Social

Security Act, 464, as amended, 42 U.S.C.A.

664; 26 U.S.C.A. 6305, 6402; U.S.C.A. Const.

Amends. 5, 14."

These fundamental! cases flow from Mathews v

Eldridge, 424 US 319, just as this action.

“Due process requires consideration of:

First - Private interest affected by state

Second - Risk of error in procedures

Third - Government interest in added procedural

requirements"

See also cases like we L & P v Craft

at p

"3. Petitioners deprived respondents of an interest

in property without due process of law. Pp 12-22

(a) Notice in a case of this kind does not

comport with constitutional requirements when it does

not ad-vise the customer of the availability of an

adminis-trative procedure for protesting a threatened

termi-nation of utility services as unjustified, and

since no such notice was given respondents, despite

“good faith efforts" on their part, they were not

accorded due notice. Pp 13-15

(b) Due process requires, at a minimum, the pro-

vision of an opportunity for presenting to designated

personnel empowered to rectify error a customer's

complaint that he is being overcharged or charged for

services not rendered, and here such a procedure was

ot made available to respondents. The customer’

nterest tn not naving services terminated fs self-"

-18-

“evident, the risk of erroneous deprivation of services

is not insubstantial, and the utility's interests are

not incompatible with affording notice and procedure

described above. Mathew v. Eldridge, 424 U. S. 3;9

Pp 16-19"

Where was the 2nd CA in 1978? Did the Justices

read the U.S. Reporter? It was not held by this court

to be Craft's duty to litigate unknown rights but the

duty of Memphis L & P to provide him with opportunity

and personnel to correct errors in Craft's complaint.

So here too the 2nd CA wrong in holding or

upholding Tucker had to litigate unknown rights in

state court - instead it is claimed to be duty of

state court judges to notice Tucker of his defenses

and give him a chance at a meaningful hearing.

What do the rules do instead. See Appendix C

PB 506 allows appointment of rent receiver on hearsay

by plaintiff bank's attorney.

V. 2nd CA VIOLATED THIS COURT'S RULING UNKNOWN LAW

CAN BE LITIGATED IN FOLLOW ON CASE ONCE

ESTABLISHED

The 2nd CA upheld District Judge Dorsey's holding

that Tucker “could have litigated" unknown law in the

state court four foreclosure actions. But this court

nthe

has long ago held such a burden cannot be imposed on

attorneys let alone pro se litigants who need and are

entitled as a due process right to a chance to amend

and a statement by District Court of amendments

needed.

Curtis Publishing Co v Butts

55 US 143 1966

"Butts makes two arguinegts in support of his conten-

tion that Curtis’: failure to raise constitutional defenses

amounted to a knowing waiver. The first is that the

general state of the law at the time of this trial was such

that Curtis should, in the words of the Fifth Circuit

majority, have seen “the handwriting on the wall.” 351

F. 2d, at 734. We cannot accept this contention. Al-

though our decision in New York Times did draw upon

earlier precedents in state law, e. g., Coleman v, MacLen-

nan, 78 Kan. 711, 98 P. 281, and there were intimations in

a prior opinion and the extra-judicial comments of one

Justice,’ that some applications of libel law might be in

conflict with the guarantees of free speech and press, there

was strong precedent indicating that civil libel actions

were immune from general . constitutional « scrutiny.’ -

Given the state of the law: prior to:our: decision ‘in New.

York Times, wedo not ‘think’ i¢:unreasonable::for:ia

lawyer trying a case of this kind, Where the plaintiff' was

not even a public official under state law; to have booked

solely to the defenses provided by state ‘libel law *

caitlin ita i

-20-

Just like Curtis this Petitioner looked only at

established state law in 1981 and after this new

federal law established in 1983 commenced timely this

action in the District Court of Connecticut.

Curtis Pub Co v Butts

388 US 144 1966

" First, as a general matter, we think it inadvisable ‘to

determine whether a “right or privilege” is “known” by

relying on information outside the record concerning the

special legal knowledge of particular attorneys. Second,

even a lawyer fully cognizant of the record and briefs

in the New York Times litigation might reasonably have

expected the resolution of that case to have no impact-

on this litigation, since the arguments advanced there

depended so heavily on the analogy to seditious libel.

We think that it was our eventual resolution of New

York Times, rather than its facts and the arguments

presented by counsel, which brought out the constitu-

‘tional question here. We would not hold that Curtis

waived a “known right” before it was aware of the New

York Times decision. It is agreed that Curtis’ presenta-

tion of the constitutional issue after our decision in New

York Times was prompt.”

Was the 2nd CA wrong imposing on this poor pro se

litigant a higher standard than that imposed by This

Honorable Court on professional attorneys?

May this action be reversed on sound doctrine, in

Curtiss, Supra.

-21-

In Garguil/Lombard, supra, doctrine 2nd CA held

for 1983 civil rights action res judicata would not

apply to issues not actually litigated in state

court. That rule applied here means this action must

be reversed.

VI. 2nd CA ERRED UPHOLDING DECISION THAT PETITIONER

HAD NO STANDING

The 2nd CA upheld a lower court holding Petitioner

had no standing. ~

But in his amended complaint this Petitioner

alleged he suffered continuing damages in loss of rent

and deprivation of his four properties foreclosed by

use of Conn PB 504-510 all repugnant to the Consti-

tution of the United States.

106 Mile Transport Asso v Koch

656 F Supp at 1480

"{2) A plaintiff, therefore, must demon-

gtrate that he has suffered some “distinct

and palpable injury,” that the injury is the

result of the defendant's allegedly illegal

conduct and that his or her injury is likely

to be redressed by relief afforded by the

court. Jd; Matter of Appointment of In-

dependent Counsel, 166 F.2d 70 (2d Qir.)

cert. denied, — US. —, 106 S.Ct. ai

88 L.Ed.2d 654 (1986). "

=22.

Surely it can be said that when this case goes to

the jury and the jury hears evidence that the bank

carried out a strict foreclosure on a house bank

valued at $10,000.00 and now that same house for sale

with only cosmetic changes for $179,000.00 it can

reasonably be expected the jury will award this

Petitioner appropriate damages.

Simon v Eastern Ky, Welfare Rights Org

426 US at 26 19/5

"federal plaintiffs must allege some

threatened or actual injury resulting

from putative illegal action"

Linda R S v Richard D 410 US 617

VII ABSTENTION DOCTRINE NOT APPLICABLE

The abstention doctrine lastly pronounced in

Pennzoil Co. v Texaco, 55 LW 4457, does not apply here

because Tucker no longer has a state court action

pending in which to seek his remedy. The four

foreclosure cases in state court had pleadings last

filed in 1981 and went to final judgment in 1985. No

action left to raise these issues of newly formed law

in. No longer is appeal possible to the Connecticut

Supreme Court but only on discretionary petition for

=93~

Certification, a matter of discretion to the state

court under PB 4126-4133. Regularly the Conn. Sup Ct.

uismisses challenges to court rules.

Tucker v American Ins

3 Conn App at 399

"It would seem that the policy of requiring

application for permission to bring suit against

the receiver in the original court is so firmly

established in this State that a change in the

policy should be enunciated either by our Supreme

Court or prescribed by statute."

Tucker v American Ins

196 Conn 8UZ T3985

"The plaintiff's petition for certification for

appeal from the Appellate Court, 3 Conn. App. 397,

is dismissed. "

Appellate Court will not rule without guidance & Sup

Ct dismisses challenges to rules. Abstention has no

place in this action.

This Honorable Court established a three prong

test for Younger abstention that was recently applied

by the 9th CA on Sept 9th, 1988 in:

-24-

Beltran v California & United Farm Workers_

9th CA Nos 8/-5942 and 8/-59435

" We review de novo the district court's refusal to abstain

under Younger. Polykoff v. Collins, 816 F.2d 1326, 1332 (9th

Cir. 1987); Fresh Intl Corp. v. Agricultural Labor Relations

Board. 805 F.2d 1353, 1356 & n.2 (9th Cir. 1987).

Younger abstention embodies “a strong federal policy

against federal-court interference with pending state judicial

proceedings, absent extraordinary circumstances.” Middlesex

County Ethics Comm. v. Garden State Bar Ass'n. 457 US.

423, 431 (1982). In Fresh Int'l, 805 F.2d at 1357-58. we sum-

marized the requirements of Younger abstention:

Under the three-pronged test announced by the

Supreme Court in Afiddlesex and applied in Dayton.

abstention is appropriate in favor of a state proceed-

ing if (1) the state procecdings are ongoing; (2) the

proceedings implicate important state interests; and

(3) the state proceedings provide an adequate oppor-

tunity to raise federal questions.

(citations omitted). This case meets cach requirement. Con-

sequently, we hold that the district court crred in refusing to

abstain. We consider each criterion in turn. "

Applying this Middlesex test to this case we find

abstention not applicable.

Test 1- State proceedings final 1985

This Test 2- No state interest in rent

Action receiver rules of court

Test 3- State proceedures inadequate

Conn. uses hearsay as approved in PB 506 (see Appendix

C) for appointing and keeping rent receivers so no

“meaningful” hearing possible for property owners.

Pe ee ee ee Oe ee re aT ee

—S —- ee:

-25.

Sup Ct will no longer grant certiorari to review

constitutionality of rules. See P19 infra.

VIII. RES JUDICATA DOES NOT APPLY BECAUSE FEDERAL LAW

CHANGED AND ISSUES AND PARTIES ARE DIFFERENT

With Santa Claus generosity, the District Judge

ruled res judicata applied without any showing the

facts to be identical the causes of action to be

identical and ignoring that the federal law changed

since pleadings filed in the four state court

foreclosure actions in 1981.

FRCP Rule 8 (c) “In pleading...a party... shall set

forth affirmatively..res judicata..'

While in their motion to dismiss defendants raise de-

fense of res judicata their motion unsworn and in

opposition Petitioner filed sworn statement that in

state court he did not plead the constitutional issues

raised herein and that federal law on constitutional

issues arose after state court pleadings closed.

THE CLAIMED RES JUDICATA DISPUTED UNDER OATH AND NO

EVIDENCE TAKEN TO RESOLVE THE DISPUTE - surely the

District Court a Santa Claus to the bank and

defendants.

-26-

Jones v Miller "Motion to Dismiss on grounds of res

2 RFD 479 judicata denied where facts insuffic-

jent to establish question without

further facts."

In this action the facts needed to settle the

dispute never taken into evidence.

Davis v US Steel "Res Judicata affirmative defense,

688 F 2d 166 party claiming it bears burden of

Certiorari Denied proof"

460 US 1014

Defendants offered no proof on their disputed defense.

U. S. v Harrison County, Mississippi

399 F 2d 485

Re-Hearing Denied 414 F 2d 787

Certiorari Denied

397 US 918

"In order to sustain plea of res judicata

there must be identity of things such as

identity of cause of action, identity of

persons and parties to the suit, identity

of quality and character of person against

whom claim is made"

BUT THE FOUR STATE COURT FORECLOSURES DO NOT MEET THIS

TEST.

1. The issue in state court was the state law claims

to permit foreclosure.

2. This issue in this case is the unconstitutionality

of CT PB 504-510.

-27-

3. The defendants in state court include all lien

holders not parties to this action.

4. The parties to this action include attorneys who

applied the unconstitutional rules to seize four

properties in violation of Constitution.

Muchard v Bereman "Res Judicata is

no defense where between

Certiorari Denied the Ist and 2nd judgment

371 US 982 law changed creating a

different situation"

The decisions rendered in federal court in

Wright, supra, and Nelson, supra (P13-14 brief)

changed law in 1983 to provide a sound legal basis for

this federal complaint. That law did not exist in

1981 when state court pleadings closed.

IX. The 2nd CA A GAS CHAMBER FOR PRO SE

The law in federal court has long been that the

allegations of the complaint are true for purposes of

motion to dismiss. THIS PETITIONER ALLEGED UNDER OATH

THAT HE DID NOT AND COULD NOT LITIGATE THESE NEW

ISSUES IN STATE COURT FORECLOSURES. Yet the 2nd CA

used hearsay allegations that speculated... “he could

have litigated" and dismissed without any evidence

being tak2n on disputed facts.

In re Longhorn Securities Litigation

5/3 F Supp 255 (1983)

7. Federal Civil Procedure - 1772, 1829, 1825

"In the context of motion to dismiss court

must construe chalienged pleadings in the light

most favorable to the plaintiff, must accept as

true all well pleaded factual allegations and

reasonable inferences therefrom, and must

disregard all legal or unsupported conclusions;

complaint should not be dismissed merely because

plaintiff's allegations do not support his state

of legal theory as the court is obligated to

determine whether the allegations support relief

on any possible theory. Fed. Rules Civ. Proc.

Rule 12(b)(6), 28 U.S.C.A."

CONCLUSION

May this Court summarily reverse on Supreme Court

of Virginia, and Karim-Panahi, supra, or

alternatively note probable jurisdiction.

RESPECTFULLY:

STANLEY V. TUCKER

Petitioner

ee ee

APPENDIX A- Connecticut General Statute

51-14

§ 51-14. Rules of court. Disapproval of by general assembly.

Hearings

(a) The judges of the supreme court, the judges of the appellate

court, and the judges of the superior court shall adopt and promul-

gate and may from time to time modify or repeal rules and forms

regulating pleading, practice and procedure in judicial proceedings

in courts in which they have the constitutional authority to make

rules, for the purpose of simplifying proceedings in the courts and

of promoting the speedy and efficient determination of litigation

upon its merits. The rules of the appellate court shall be as

consistent as feasible with the rules of the supreme court to

promote uniformity in the procedure for the taking of appeals and

may dispense, so far as justice to the parties will permit while

affording a fair review, with the necessity of printing of records

and briefs. Such rules shall not abridge, enlarge or modify any

substantive right nor the jurisdiction of any of the courts. Subject

to the provisions of subsection (b), such rules shall become effective

on such date as the judges specify but not in any event until sixty

days after such promulgation.

APPENDIX B - United States Constitutional

Amendments 5th & 14th

AMENDMENT V—GRAND JURY INDICTMENT FOR CAPITAL

CRIMES; DOUBLE JEOPARDY; SELF-INCRIMINATION;

DUE PROCESS OF LAW; JUST COMPENSATION FOR

PROPERTY

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be twict put in

jeopardy of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property

be taken for public use, without just compensation.

AMENDMENT XIV—CITIZENSHIP; PRIVILEGES

; AND IMM

NITIES; DUE PROCESS; EQUAL PROTECTION: APPOR

TIONMENT OF REPRESENTATION; DISQUALIFICATION

OF OFFICERS; PUBLIC DEBT; ENFORCEMENT |

Materials for the Due Process Clause of Section 1 are set out |

this volume and the preceding volume. See the volume i

taining Amendments 7 to 14 for materials pertaining to the

Citizenship and Privileges and Immunities Clauses of that

section and the volume containing the end of the Constitution

for materials pertaiaing to the Equal Protection Clause of that

section and sections 2 to 5.

Section 1. All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make «:

enforce any law which shall abridge the privileges or immunities o!

citizens of the United States; nor shall any State deprive any pers«

of life, liberty, or property, without due process of law; nor den\ a

any person within its jurisdiction the equal protection of the law.

aaoEoEOEOEOoeeEeEeEeEeEeEeEe——eE————— ee eee

APPENDIX C- Connecticut Practice Book

Sections 504-511

Sec. 501. Duty of Clerks

The clerks shall see that these rules are enforced and shall promptly

report any violations thereof to the court.

(P.B. 1963, Bec. 422.)

Sec. 502. Removal of Receivers

Receivers may be removed at any time, at the pleasure of the court

by which they were appointed or, if such court is not in session, by a

judge thereof; and, if any reeciver is removed or declines to act or dies,

the court that appointed him, or, if such court is not in session, a judge

thereof, may fill the vacancy. (Sec Gen. Stat., § 52-513 and annotations.)

(P.B. 1 Bee. 423.)

Sec. 503. Ancillary Receivers

These rules, so far as applicable, shall govern the appointment and

duties of ancillary receivers.

(P.B. 1963, Sec. 424.)

Sec. 504. Receiver of Rents

(P.B. 1963, Bee. 425.)

Sec. 505. Applicability of Previous Sections

Sections 485 through 500 shall not apply to receivers of rents.

(P.B. 1963, Sec. 426.)

Sec. 506. ——Appointment

Every application for the appointment of a reeciver of rents shall

be made in or ancillary to a civil action and may be made cither to the

court before which such action is pending or, when the court is not in

actual session, to a judge in chambers. The court or judge may examine

the plaintiff or his attorney and may thereupon appoint a receiver of

rents. Notice of the hearing should be given when practical but such

appointment may be made without notice if sufficient cause appears.

(P.B. 1963, Bec. 427.)

Sec. 507. ——Bond

No such appointment shall become effective until the receiver shall

have filed a bond in such amount as shall have been fixed at the time

of his appointment or until said bond shall have been approved by the

judge or clerk of the court in which the action is pending; provided that

no bond need be required of a bank or trust company. The condition of

bonds of such receivers shall be substantially in the following form:

APPENDIX C - continued

Sec. 507 CONNECTICUT PRACTICE BOOK

The condition of this obligation is such that, whereas the above

named A has by (court or judge) been appointed, in an action brought by

X against Y, to be receiver of rents of property located in the town

of and described as (describe generally, ¢.g.,

No. 93 Maple Street):

Now, therefore, if said A shalt well and truly perform his duties under

such appuintment, then this obligation shall be void, otherwise in full force

and effeet.

(P.B. 1963, Sec. 428.)

Sec. 508. -——Discharge

Any party in interest may at any time move for the discharge of the

receiver.

(P.B. 1963, Sec. 429.)

Sec. 509. Orders

The court in which the action is pending, or the appointing judge,

may make such orders for the governance of the receiver as circumstances

require. The judge shall certify any order passed by him in chambers

to the court in which the action may be pending.

(P.B. 1963, See. 430.)

Sec. 510. Reports

Such receivers shall file written reports quarterly and at such other

times as may be required.

(P.B. 1963, Sec. 431.)

APPENDIX D - Decision 2nd CA

Denying Re-Hearing in Banc

United State Court of Appeals

For the Second Circuit

TUCKER

Vv No 87-9071

July 5th, 1988

NORTHEAST

A petition for rehearing containing a suggestion that

the action be réheard in banc having been filed herein

by Plaintiff-Appellant, STANLEY TUCKER, pro se.

Upon consideration by the panel that heard the appeal,

it is

ORDERED that the said petition for re-hearing is

DENIED.

It is further noted that the suggestion for re-hearing

in banc having been transmitted to the judges of the

court in reguiar active service and to any other judge

that heard the appeal and that not such judge has re-

quested that a vote be taken thereon.

APPENDIX E - Decision 2nd CA Dismissing

Appeal

United States Court of Appeals

For the Second Circuit

TUCKER

No 87-9071

-Vo

NORTHEAST | May 2, 1988

Before Justices : Kaufman

Pierce

Altimari

it is ORDERED that the motion

to dismiss be and hereby is

granted.....

APPENDIX F - Decision USDC - Connecticut

DISMISSING COMPLAINT

United States District Court

District of Connecticut

STANLEY V. TUCKER

CA No H 87 282

v.

RULING ON MOTIONS

NORTHEAST SAVINGS FA —~ TO DISMISS

— etal December 16, 1987

Plaintiff brings this action under 42 USC 1983

alleging violations of due process in connection with

four foreclosure actions in state court filed against

him in 1978. Defendant Northeast Savings, FA is the

corporate successor of Hartford Federal S & L Assoc.,

the bank which filed the foreclosure actions in

Connecticut Superior Court and in favor final

judgments of foreclosure were entered in 1985.

Defendant Robert Basine is an attorney who represented

the banks in the forclosure actions.

Defendants Donna Galluzzo and Lorraine Whitehead were

not involved in the foreclosure actions but subsequent

ly bought the foreclosed properties from Northeast in

June, 1986.

Footnotes omitted

Facts and Procedural History

Platntiff's 2nd Amended Complaint is not a model

of clarity, despite his extensive experience as a pro

se litigant in both state and federal court systems.

1/ The complaint is not organized into separate

counts or claims for relief and mixes factual

allegations against defendants with legal arguments

that the procedures followed in the state court

actions were unconstitutional. For the purposes of

the motions to dismiss, the court finds only the

factual allegations to be true.

In September 1978 defendant Basine, acting as

attorney for Hartford Federal, commenced four separate

foreclosure actions on properties in which plaintiff

held equity. Basine moved for appointment of a rent

receiver for the properties, pursurant to Conn PB

504-510. Over plaintiff's objections a receiver was

appointed. Plaintiff alleges he was not given notice

of his defenses to the appointment of a receiver and

that negligence of the receiver caused the properties

to decline sharply in value.

Footnotes omitted

ee

UA 6 4S OA Ree iS alee oer Delite asec ienmens we Ooand 4 06

ins “Sine NEI ce Ata cote

US AEE IOC Nair didi MDP te Ba AA ma!

F-3

The bank then obtained judgements of foreclosure

by default based upon Tucker's failure to file timely

pleadings. Tucker had filed his answer, special

defenses and counter claims on the day the motion for

default came before the trial court for hearing, but

that court refused to accept them. The judgements of

foreclosure were vacated upon appeal on ground that

the pleadings were not untimely and the case remanded

for further proceedings, 181 Conn 607.

On remand the lst rent receiver resigned and

defendant Basine, for Hartford Federal, moved for

appointment of a second receiver. That motion was

granted and a second receiver appointed, allegedly

without affording Plaintiff meaningful hearing and

without notice to Plaintiff of his valid defenses.

Plaintiff also alleges that the second receiver's

negligence caused the properties to decline in value

and to be foreclosed at depressed valuations and that

defendants Basine and the banks concealed this

negligence from him and the court.

Footnotes omitted

F-4

After a trial on the merits the Superior Court granted

judgements of strict foreclosure to the bank. These

judgements were upheld on appeal. 196 Conn 172. In

his appeal, plaintiff raised constitutional due

process challenges to the appointment of the receivers

and to the procedures by which the appointments were

made which the court rejected, Id at 175-79, 182

(rejecting due process claims, special defenses and

counter claims); See opposition to Motion to Dismiss,

Exhibit A at 104-105 (counterclaim raised on appeal

based upon due process challenges).

Discussion

In considering a motion to dismiss the complaint

of a pro se litigant, the court must consider al]

possible claims which are fairly presented in the

complaint. To warrant dismissal of a pro se

complaint, it must appear beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief."

ey.

F-5

Huges v Rowe, 449 US 5, 10 (1986) See also Bass v

Jackson, 790 F 2d 260, 262 (2nd CA 1986) A pro se

litigant, unfamiliar with technical rules of pleading,

ought not suffer dismissal if his complaint "sets

forth matters, that, with some refinement, can

constitute legally sufficient claims".

Salahuddin v Coughlin 781 F 2d 24, 29. 2CA

The allegations of plaintiff's Second Amended

Comnlaint fall into three main categories:

First, Tucker attacks the results of the state

foreclosure actions, alleging that the state trial

court violated his due process rights in appointing

rent receivers upon Basine's hearsay applications

without giving notice of Tucker's defenses. See,

e.g., Second Amended Complaint PP4, 5, 18, 23,

"Relief by way of declaratory judgement" P2. He also

alleges that the trial court's application of Conn PB

504-510 to appoint rent receivers in the foreclosures

deprived him of due process.

Specifically, he argues that the Practice Book

violates Conn GS 51-14 and did not provide that he

F-6

received notice of his defenses; did not establish

standards to govern the appointment of the rent

receiver; and allowed the receivers to be appointed

upon Basine's hearsay representations without

affording Tucker a meaningful opportunity to be heard.

Second, plaintiff alleges that defendants

willfully utilized the allegedly unconstitutional

procedures to deprive him of his property, f.e., the

four properties which were the subject of the

foreclosures. See Second Amended Complaint, PP

4,5,6. The extent of the interrelation of this second

category of claims to the first category is

illuminated by plaintiff's claims for relief. Tucker

asks for “declaratory judgments" that the four strict

foreclosure judgements are null and void; that the

equity of the property remains vested in him; that the

deed to Galluzzo and Whitehead is void. Second

Amended Complaint at 11. He further seeks damages for

all rents which he would have collected, plus fees and

cost of litigating the earlier actions, Second Amended

Complaint at 11-12.

F-7

Third, the complaint can be read to challenge the

constitutionality of the rent receiver rules on their

face and to seek a declaratory judgement that the

Practice Book 504-510 are unconstitutional because

they allow the deprivation of property without due

process of law. Second Amended Complaint PP 7-14

Jurisdiction

Defendants argue that, to the extent the complaint

seeks review of the state court judgements, this court

lacks subject matter jurisdiction. A federal district

court has no subject matter jurisdiction to review the

final judgement of a state court. District of

Columbia Court of Appeals v Feldman 460 US 462, 482

1983; Rooker v Fidelity Trust Co, 263 US 413, 415-416

(1923). Such review may only be had in the Supreme

Court of the U.S. In his appeal to the Conn Sup CT

plaintiff argued, as he does here, that the precedures

for the appointment of rent receivers denied him due

process of law, see 196 Conn at 176, and that the

Superior Court had erred in undervaluing the

properties, in ordering strict foreclosure, and in

F-8

denying his special defenses and counterclaims, Id at

179-80. The state courts have rejected these claims

and the United States Supreme Court has denied

certiorari for review of those determinations. Id 106

US Ct 250.

To the extent that the complaint seeks to

challenge the merits of the state court determination

of those issues, that challenge is beyond the

jurisdiction of this court. See Pennzoil Co v Texaco,

55 LW 4557 4463 (April 7, 1987) It is irrelevant that

Tucker did not specify in the state, as part of his

due process challenges to the CT statutes and rules,

the precise ground that the Practice Book procedures

did not afford him notice of his defenses. 2/ The

factual and legal basis for that claim was available

to him throughout the state court proceedings and had

he chosen to present the claim those courts were

competent to adjudicate it. 3/ Texaco v Pennzoil 784

F 2d 1133, 1142 (2 Cir 1986) rev'd on other grounds,

55 US LW 4457, see District of Columbia Court of

Appeals, 460 US at 484 n .16 (litigant may forfeit

* — . “al

Lea Ane Li Sica cla ali Rag treaet Re whi ;

ini iar Does DS Ay AP ee HE om

i ek nn ie INE Sn

Main ve

F-9

right to obtain review of constitutional claims in any

federal court by failing to raise them in state

proceedings). Indeed the Conn Sup Court addressed

Tucker's other due process challenges to the

application of the rent receiver rules and there is no

allegation that he was refused an opportunity to raise

the present claims. ;

Tucker attempts to cast his challenge to the

outcome of the state court proceedings as a 1983 cause

of action. However, his characterization of his claim

does not confer jurisdiction upon a federal district

court where the federal claim is “inextricably

intertwined with the merits of a state court

judgment." Pennzoil, 55 US LW 4464 (Marshall, J.

concurring in the judgment") quoting District of

Columbia Court of Appeals, 460 US at 483-48 n 16.

The gravamen of Tucker's constitutional claim is that

defendants used unconstitutional state court

procedures to deprive him of his property. A judgment

for plaintiff on his 1983 claim, awarding damages for

lost rent and title to the subject properties would

F-10

require a finding that he was denied due process by

the state court's application of the rent receiver

rules. However, the Connecticut Supreme Court deter-

mined that the application of the state procedures to

Tucker in the foreclosure proceedings did not deny

him due process of law and that he was given notice

and a meaningful opportunity to be heard in the

appointment of the receiver. 196 Conn at 177. It is

clear that the federal relief sought by Tucker “can

only be predicated upon a conviction that the state

court was wrong". Pennzoil, 55 US LW at 4463. That

this court is without jurisdiction to do.

Tucker seeks to reticulate the state proceedings

by the device of naming as defendants the party which

prevailed in state court and its attorney. This is no

less an attempt to convert an appeal of a state

judgement into a 1983 cause of action. The portions

of the complaint which allege that plaintiff was

deprived of property without due process of law by

defendant's application of the rent receiver

ne i id

os -

F-11

procedures of PB 504-510 in the state foreclosure

proceedings must be dismissed for lack of subject

matter jurisdiction.4/

Standing

The remaining portions of the complaint, not

directed at the outcome of the foreclosure actions,

may be read as a general challenge to the consti-

utionality of the rent receiver procisions as failing

to provide due process to property owners. See Second

Amended Complaint PP 7-14 7-14. Such a challenge is

within the subject matter jurisdiction of this court.

See DC Court of Appeals, 460 US at 483 (distinguishing

review of state court application of procedures from

general challenge to their constitutionality).

Defendants argue that Tucker has no standing to raise

a facial challenge to the procedures because he is

barred from asserting any past injury caused by the

application to him and thus presents no justiciable

issue.

Article III of the Constitution requires that

"(a) plaintiff must allege personal injury fairly

F-12

tracable to the defendant's unlawful conduct and

likely to be redress-by the requested relief." Allen

v Wright 468 US 737, 751 (1984) see US v Herrara, 584

F 2d 1137, 1148 (2 Cir 1978) (where criminal statute

was valid as applied to convicted defendants, they had

no standing to assert a broad challenge based on

rights of others). Thus, a plaintiff seeking a

declaratory judgment that a state law or procedure is

invalid must allege that he has suffered, or will

suffer, a cognizable injury from the application of

the state law which the judgment will redress.

Simon v E. Kentucky Welfare, 426 US 26, 38, (1976);

Asso Against Discrimination in Employment v City of

Bridgeport 710 F 2d 69, 73 (2 cir 1983).

Plaintiff's complaint does not meet this

threshold test. Each of the injuries alleged relate

to the State Court proceedings and to claims of error

therein. As discussed above, the state proceedings

are not reviewable by this court and they cannot form

a cognizable basis for a facial challenge to the rent

receiver procedures. Even if the court were to

F-13

undertake such review and declare the procedures

invalid, res judicata would prevent the court from

granting the redress plaintiff seeks--effectively a

reversal of the state court judgments of foreclosure.

Thus, the declaratory relief requested will not

redress the injury claimed. Duke Power Co v Carolina

Environmental Study Group, 438 US 59, 75 N.20 (1978).

(requiring “substantial likelihood" that relief

requested will redress injury). The prior state

judgments have conclusively established that

plaintiff was not deprived of due process by the

application of the Connecticut rent receiver

procedures. Those judgements are conclusively

adjudicated and cannot constitute redressable

"injuries". There is no allegations that prospective

applications of the rent receiver rules will cause him

any actual or imminent injury. Thus, plaintiff has no

standing to challenge the constitutionality of

Practice Book 504-510. See Northeast Bancorp v Woolf,

576 F Supp 1225, 1232 (D Conn 1983) aff'd 742 F 2d

1439 (2 Cir 1984)

F-14

Conclusion

Accordingly the complaint must be dismissed in

its entirety. Defendant's motions to dismiss are

granted.

SO ORDERED

Dated at Hartford, Connecticut this 16th day of

December, 1987

s/

Peter C. Dorcey

United States District Judge