Petition for Writ of Certiorari — Tucker v. Connecticut National Bank

)

88-1277.

j

IN THE .

SUPREME COURT OF THE UNITED STATES

October Term 1988

No

STANLEY V. TUCKER,

Petitioner

_—

CONNECTICUT NATIONAL BANK,

NEIL E. ATLAS, ROURKE G

SPELLACY & UPDIKE, KELLY &

SPELLACY, . P.C.

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SECOND CIRCUIT COURT OF APPEALS

STANLEY V. TUCKER

Petitioner

Box 35

FILaD

JAN BO 1908

R BPAN

SHES

Hartford, Conn 06101

203 523 5781

=e

QUESTIONS PRESENTED

1. Did 2nd CA violate This Courts rule

that property cannot be mised without

mokten of defenses?

2.Did 2nd CA decide important constitu-

tional question never before decided by

this court, i.e. Constitutionality of Ct.

P.B. 504 -510?

3. Did 2nd CA violate this courts rule

that federal courts have jurisdiction

over challenges to state court rules?

4. Did 2nd CA violate its own rule that

federal courts have jurisdiction over

constitutional issues not litigated in

state court?

5. Did 2nd CA conflict with 9th CA &

Columbia CA not granting Pro Se leave

to amend and statement of amendments

needed?

-ii-

INDEX Page

Citations to Opinions Below 1

Jurisdiction 2

Constitutional and Statutory Provisions

Statement of the Case

2

2

Factual Background 4

SUBSTANTIAL REASONS FOR GRANTING WRIT 4

4

I. PETITIONER PRECLUDED FROM RAISING

CHALLENGE IN CONN. SUP CT.

Il. 2ND CA VIOLATED THIS COURT's RULE 9

UNKOWN LAW CAN BE LITIGATED LATTER

III. 2ND CA VIOLATED OWN RULES 12

IV. 2ND CA VIOLATED THIS COURT RULE 14

FEDERAL JURISDICTION OVER COURT

RULES

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

ON STANDING

VI. ABSTENSION DOCTRINCE NOT APPLICABLE 21

VII. 2ND CA CONFLICT 9TH & COLUMBIA CA 26

CONCLUSION 32

APPENDIX

Connecticut General Statute 51-14 A

5th & 14th Const. Amendments

Conn Practice Book S 504-510

2nd CA Dismissal of Appeal

2nd CA Denial of Certification

Ruling on Motions USDC- Conn

-ili-

TABLE OF AUTHORITIES _Page

FEDERAL

5th Amendment to US. Constitution a

14th Amendment to US Constitution 2

Rule 8 FRCP 8,23

Rule 15 FRCP 19

Title 28 USC 1254 (1) 2

Title 28 USC 1257 17

Bates v State Bar of Arizona 15

433 US at 384

Beltran v California & United Farm 22

9th CA No 87-5942 & 87-5943

Bretz v Kelman 29

773 F 2d at 1027

Brown v Board of Bar Examiners 17

623 F 2d 605

Curtis Pub Co v Butts 10,11

388 US 143

Davis v US Steel 24

688 F 2d 166

D.C. Court of Appeals v Feldman i. i

460 US at 485

Eldridge v Block 20

832 F 2d at 1135

Ham v Smith 30

653 F 2d at 631

Hudson v Hardy 31

412 F 2d 1091

-iv-

a - continued Page

Gargiul v Tompkins rD

794 F 2d at 662

In Re Summers 16

325 US at 566

Jones v Miller 24

2 RFD 479

Karim-Panahi v LAPD 26

839 F 2d 621

Lathrop v Donohue 14,16

367 US at 566

Lombard v Bd of Education 13

502 F 2d 631

Mathews v Eldridge 8

424 US 319

Memphis L & P v Craft 8,9

436 US 1

Noll v Carlson 27

809 F 2d 1446

106 Mile Transport v Koch 19

656 F Supp at 1480

Pennzoil v Texaco 21

55 LW 4457

Philips v US Bd of Parole 30

352 F 2d at 712

Simon v Eastern Ky, Welfare Rights 18

426 US at 26

Sup Ct Virginia v Consumers Union 16

446 US 719,731

U.S. v Harrison County Mississippi 25

399 F 2d 485

-V-

CONNECTICUT CITATIONS PAGE

Conn GS 51-14 3

Conn. Practice Book S 504-510 2,3,4,18,19

Conn Practice Book 4185 5

Nelson v Regan 6./,20

560 F Supp 1101

New Haven Savings v General Finance 32

174 Conn 268

Scholes Agency v Mitchell 5

191 Conn at 35/7

State v Reddick 5

197 Conn at 125

Tucker v American Insurance 21

3 Conn App at 399 -

Tucker v American Insurance 21

196 Conn 802

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

No

STANLEY V. TUCKER,

Petitioner

“We

CNB (short title)

PETITION FOR A WRIT OF CERTIORARI TO’ ~

THE SECOND CIRCUIT COURT OF APPEALS

Petitioner prays that a writ of certiorari issue

review the judgment of the 2nd CA made Nov.2, 1988

dismissing Petitioners Appeal. Timely Motion filed

to Certify federal question & denied Nov 2,1988

CITATION TO OPINIONS BELOW

—_

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

are not reported. The decisions printed in Appendix

D-E-F.

JURISDICTION

The judgment of the Second Circuit Court of Appeals

entered Nov 2, 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 8-12-87

No amendment allowed. 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 certificaion

based on 9th CA decisions reported in news

media. Petitioner asked for leave to

amend with Trial Court directed to state amendments

needed. Certification denied 11-2-88

Thus the constitutional challenge properly raised

illic

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 seek

"strict foreclosure" by low value on properties.

Bank had no right to rents as property

worth double $150,000 mortgage balance and

sold April 1986 to avoid foreclosure $840,000

Meanwhile Petitioner lost $1,200,000 in rents.

SUBSTANTIAL REASONS FOR GRANTING THE WRIT

I. PETITIONER PRECLUDED FROM RAISING THIS

CONSTITUTIONAL CHALLENGE IN CONN SUPREME CT

It is axiomatic that only Connecticut of

all the states follows the Conn. Practice Book.

a

The Connecticut Practice Book limits

the Connecticut Supreme Court to review

issues raised in the lower court upon

trial and almost with no exceptions the

court follows this rule.

Connecticut Practice Book Sec 4185 (3065)

Sec. 4185. (Formerly Sec. 3063). Errors Considered

The supreme court shall not be bound to consider a claim unless it was

distinctly raised at the trial or arose subsequent to the trial. The supreme

court may in the interests of justice notice plain error not brought to the

attention of the trial court.

State v Reddick

197 Conn at 125

tr . _. The defendant has sug-

gested no exceptional circumstances to warrant depar-

ture from the general rule that limits appellate review

of all issues, even constitutional issues, to those on

which the trial court has had an opportunity to rule.

Practice Book § 3063; Knight v. Bourbeau, 194 Conn.

919 (1984); Cain v. Moore, 182

2d 723 (1980), cert. denied. 454

10 L. Ed. 2d 129 (1981).

702, 704 n.3, 485 A.2d

Conn. 470, 472, 438 A.

US. gad 102.8. Ct. 157

Scholes Agency v Mitchell

Conn at 35/ See Note 5

"Altho plaintiff briefed anadded issue...

Plaintiff did not raise issue in trial

court... Appellate review therefore pre

cluded"

-O-

The Petitioner filed his answer to the

state court foreclosure Nov 14, 1977. The

federal law changed in 1983 when the Conn.

District Court following a line of cases

from this court struck down the IRS Intercept

Statute for failure to give debtor notice of

defenses prior to seizure of property.

Nelson v Regan

) 1

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"

See also wage execution. Wright v_Tanezio 3-11-83

USDC Conn No 81-353

Conn GS 52-361 fails to provide prior

to wage execution...

and meaningtul Sebaccualts cs ag eee

heard aC a meaningful cime"

Connecticut law on wage executions now amended to

ive debtors a form with notice of defenses and

pportunity to be heard on these defenses.

pe companion case challenging on same grounds Conn

RS intercept statute.

=

This Petitioner filed his state court pleadings in

1977 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 19/7’. 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 fs a re-

litigation is a false claim as {is the statement by the

District Court that this matter could have been liti-

gated in the state court. The state court proceedings

started tn 1977 went to final judgment in 1985 and

nothing more can be litigated therein.

Wright v Tanezi

spc Conn No 61-353 3-11-83

Nelson v Regan

560 F Supp aul

~

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

ae 2 requirements“

See also cases like oot L & Pv 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 {t 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 girertomttel was

pot made available to respondents. fhe cy omer!

interest n not having services term nated s sel

‘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"

MR

s®.

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.

lier aaa

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

CAN BE LITIGATED IN FOLLOW ON CASE ONCE LAW IS

ESTABLISHED

The 2nd CA upheld District Judge Dorsey's holding

that Tucker "could have litigated" unknown law in the

state court foreclosure action . But this court

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

-10-

Curtis Publishing Co v Butts

O85 Wy 145 LIGO

"Butts makes two arguineyts in support of his conten-

tion that Curtis’ failure to raise constitutional defenses

amounted to a knowing waiver. The first is that the

gencral state of the law at the time of this trial was auch

that Curtis should, in the words of the Fifth Circuit

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

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

though our decision in New York Times did draw upon

eerlier precedents in state law, e. g., Coleman v. AfacLen-

nan, 7B 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, we-do not ‘think’ it:‘unreasonable::for:la

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

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

solely to the defenses provided by state libel law -

Just like Curtis this Petitioner looked only at

established state law in 1977 and after this new

federal law established in 1983 commenced timely this

action in the District Court of Connecticut.

-]j]-

Curtis Pub Co v Butts

388 US 144 1006

" 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.

-12-

III. 2nd CA VIOLATED ITS OWN RULE THAT

CONSTITUTIONAL ISSUES NOT LITIGATED

IN STATE COURT CAN BE LITIGATED

_ LATER IN FEDERAL COURT

The 2nd CA has long followed the Garguil/

Lombard doctrine that says to apply res judicata

to constitutional issues that "might have been

litigated in state court" is a draculone con-

cept that does not apply to constitutional

issues.

Gargiul v Tompkins

794 F 2d at 662

2nd CA 1983

1. Judgment @=828(3.42)

_ While a section 1983 plaintiff may not

relitigate constitutional claims actually de-

termined in a prior state court proceeding,

prior state court proceeding does not bar

federal court consideration of constitutional

claims not actually litigated and determined

in that proceeding. 42 U.S.C.A. § 1983.

A constitutional challenge can never

succeed if dismissed..."because it

might have been litigated in state

A]

court On pages 4-9 supra Petitioner

shows he was Precluded from litigating

federal issue by Rule 4185 Practice Bk

-13-

ombard v Bd of Education

— F 2d 651

2nd CA 1977

|. Judgment ©—828 (3.37)

Prior state proceedings in which

teacher contested termination of his em-

ployment on ground that board of educa-

tion had failed to comply with its own

bylaws and had acted illegally in termi-

nating teacher’s probationary appoint-

ment after expiration of probationary

term did not bar teacher’s subsequent

civil rights action against board of edu-

cation and school principal based upon

alleged denial of procedural due process

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 {gnored. Oral argument denied. His briefs

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

for Certification dented as to his due process

rights. The motion to dismiss the appeal was based on

hearsay REPUDIATED UNDER OATH BY THIS PETITIONER.

«tin

IV. 2ND CA VIOLATED THIS COURT's RULE THAT

FEDERAL JURISDICTION EXISTS OVER CHAL-

ENGES TO COURT RULES

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 {s on the state court in its legislative

capacity and not in its judicial capacity.

Athrop v Donahue

57 US at B20 1960

"Integration of the Bar in Wiscotisin 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 legislation. We conclude that

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

proceed to the consideration of the nrerits.”

-15-

In 1976 This Honorable Court upheld a Ist

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 concerning 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 su ordered.

In this action the law changed in 1983 to define

and affirm due process rights to notice of defenses

where their property seized by creditor whereas this

Petitioner faced foreclosure 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 constitu-

tional challenges to state court rules adopted by the

Judges in their legislative capacity and not in their

judicial capacity.

———~™E °° °° °° °°} ©

—

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

446 US 719, 731

Lathrop v Donohue, 367 US at 566

D-C. Court of Appeals v Feldman

———"S60 US at 485 T98Z

" 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-

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 heari, if at all, exclusively by the

Supreme Court of the United States.” Z7d., at 597 (em-

"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 ina

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.

-l|]/-

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 {s not reviewing a state court judicial

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

‘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.

D.C. Court of Appeals v Feldman

460 US at 485 1982

See also Brown v Board of Bar Examiners, 623 F

2d 605 (CA9 1980).

eee

-18-

The District Court erred because the use of

unconstitutional rules PB 504-510 {1s made in

foreclosure actions by banks and attorneys greedy to

seize property by any means fair or foul the District

Court thought he was asked to review state

court judgments. SUCH IS NOT THE CASE: The

District Court was asked to review the con-

stitutionality of Conn Practice Book S$ 504-

510; state court judgments merely an illegal

by product of rules that violate the Consti-

tution and Amendments thereto.

V. 2ND CA VIOLATED THIS COURT's RULE ON

STANDING.

seeetenelinbaneemmnnestenicnaeene a

The ruling below that Petitioner had

no standing violated this court's rule.

Simon v Eastern Ky, Welfare Rights Org

BUS at 20 1915

"federal plaintiffs must allege some

threatened or actual injury resulting

from putative illegal action"

Linda R S v Richard D 410 US 617

o~

-19.

The Petitioner alleged continuing damages

due to loss of $1,200,000 in rents and loss

of title by forced sale $300,000 under market

price.

Moreover this Petitioner wanted to amend

his complaint into two counts, one a count for

facial unconstitutionality of Conn P B. 504-510

and two a count for unconstitutionality as

applied to this Petitioner by the Bank - CNB

in the state foreclosure.

Amendment in federal court is liberality

under Rule 15, FRCP, and a Due Process right

to Pro Se litigants under doctrine from the

9th CA and Columbia CA. But Petitioner was

denied this valuable right by the 2nd C.A.

106 Nile Transport Asso v Koch

656 F Supp at [480

"(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. Id; Matter of Appointment of In-

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

cert. denied, — U.S. —~, 106 S.Ct 69,

88 1. Ed.2d 654 (1986). " f

-20-

Fldridge v Block

37 y “ne at fT 2}

" 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, 656 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 15(a), F{ed].R.Civ.P., by free-

ly granting leave to amend when justice so

requires.’” Gabrielson v. Montgomery

Ward & Co., 185 F.2d 1762, 765 (9th Cir.

1986) (quoting Howey v. United States, 481

F.2d 1187, 1190 (9th Cir.1978) (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, 283 F.2d 406 (9th Cir.

1960) (per curiam)).

{1} This policy is applied even more lib-

erally to pro se litigants. Thus in Arnt-

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

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 se 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).

a

VI.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

foreclosure case~ in state court had pleadings last

Filed in 19 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

Certification, a matter of discretion to the state

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

dismisses challenges to court rules.

Tucker v American Ins

onn App a

"It would seem that the policy of requiring

application for permission to bring suit against

the receiver in the original court {s so firmly

established in this State that a change in the

policy should be enunctlated either by our Supreme

Court or prescribed by statute."

Jucker v American In

{Se Tonn BO? 6TOn>

"The plaintiff's petition for certification for

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

-{s 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:

eltran v California & United Farm Workers

— CA Nos B7-5042 and 7-004

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

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

Cir. 1987); Fresh inet 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 Intl. 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 each requirement. Con.

sequently, we hold that the district court erred in tclusing to

abstain. We consider cach criterion in tum "

a %%-

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.

Sup Ct will no longer grant certiorari to review

constitutionality of rules. See P 5 Supra

VI RES JUDICATA DOES NOT APPLY BECAUSE FEDERAL LAW

CHANGED AND ISSUES AND PARTIES ARE DIFFERENT

a TRE LARS O LE AE te A HR E O O

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

=—_ SS —Stéfo'tth aafffirmatively..res judicata.."

~24-

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.

Jones v Miller "Motion to Dismiss on grounds of res

judicata denied where facts insuffic-

ient 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 loo party claiming it bears burden of

Certiorari Denied proof"

460 US 1014

Defendants offered no proof on their disputed defense.

ee

=%$~

U. S. v Harrison County, Mississippi

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 STATE COURT FORECLOSUREDOESNOT 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.

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

property’ in violation of Constitution.

Muchard v Bereman "Res Judicata is

JOT F 2d 368 no defense where between

Certiorari Denied the Ist and 2nd judgment

371 US 982 law changed creating a

different situation"

~96-

The decisions rendered in federal court in

Wright, supra, and Nelson, supra (P 6,7 brief)

changed law in 1983 to provide a sound legal basis for

this federal complaint. That law did not exist in

1977 when state court pleadings closed.

VII. 2ND CA CONFLICT WITH 9TH CA AND COLUMBIA

CA ON DUE PROCESSRIGHTS OF PRO SE TO AMEND

In its motion to dismiss the 2nd CA conflicts

with 9ti: and Columbia CA. In its denial of

Motion for Certification of federal question

on November 2, 1988 the 2nd CA reaffirmed its

postion as a GAS CHAMBER FOR PRO SE allowing

judgment to enter on unsworn hearsay by the

lespondents REJECTED UNDER OATH BY PETITIONER.

Karim-Panahi v Los Angeles Police Dept

B39 F 2d OL 9th CA February 1087

"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.

-2?/]-

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 al}

without leave to amend, without notice.

Noll v ata

’ 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 picadings drafted by

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

620-21, 92 S.Ct. 594, 695-96, 30 L.Fd.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). "

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.

-28-

art v Cutter Labs

‘ a -

" State prisoner was entitled to an oppor-

tunity to amend his pro se civil rights com-

plaint so as to atlempt 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 comm-

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.

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.."

-2?9-

~ 20 at ]

“{1} After he was exonerated on the al-

legedly framed charges, Bretz filed plead-

ings, which, when liberally construed, al-

lege a caure 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 603 (9th Cir.1983), withdrawn,

72% F.2d 613 (9th Cir.1984). We took this

case en bane 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 U.S. 527, 101 S.Ct. 1908, 68 L.Fd.2d 420

(1981). “

The 2nd CA is in head on conflict with

the Columbia CA in holding in a line of cases

that Summary Judgement cannot be granted on

a Pro Se litigant without giving an explanation

of requirements of summary judgement along

with leave to amend and time to make the

amendments.

Summary Judgement, the next step

after a motion to dismiss, is now subject to

=%36-

the same Due Process clause.

SS EEE

653 F 24 at 631

Columbia CA

1 981

Conclusion

We remand to the district court for fresh

consideration of the Government’s summary

judgment motion. After the Government

has submitted an adequate Statement of

Material Facts, the district court should ex-

plain the nature of the summary judgment

motion to Ham and should allow him suffi-

cient time to respond. As noted above, we

express no opinion on the merits of the

Government’s motion.’ Consideration of

the merits here, as in the district court,

‘should await a full airing of the arguments

of both parties.

Reversed and remanded.

Philips v_ US Bdof Parole

352 F 2d at /i4 =

Columbia CA 1965

3. Federal Civil Procedure C2531

It would be unfair to apply require-

ments of Federal Rule of Civil Procedure

dealing with summary judgment with

strict literalness in proceeding by federal

prisoner against United States Board of

Parole to secure his release from deten-

tion on ground that Board had revoked

his conditional release from sentence

without affording him local revocation

hearing, where prisoner had been in cus-

tody of federal prison system from incep-

t'on of litigation and had thus been op-

erating under handicaps of such deten-

tion. Fed.Rules Civ.Proc. rule 56, 28

US.C.A.

att.

412 F 2d 1091

Columbia CA 1968

at 1092

12. Federal Civil Procedure 2531, 2547

Court’s grant of jail officials mo-

tion for dismissal or in the alternative

for summary judgment in declaratory

judgment action by indigent ered

based upon officials’ alleged crue = A

human treatment was improper Ww a :

complaint stated cause of action ove

court failed to adequately advise ssa

of requirements of summary ju gm =

-ule and court did not grant pe dad

appoint counsel for prisoner. :

Civ.Proc. rule 56(e), 28 U.S.C.A.

The powerful importance of giving defenses

to debtor prior to seizure of his properties

is that Connecticut law forbids to a bank

any right to the rents unless and until it

can prove a deficiency between market value

and mortgage. This ignorant debtor had no

notice of knowledge of this and listened in

disbelief while Bank secured a rent receiver

and watched 10 years in horror while $1,200,000

in rents lost to him. When foreclosure started

property worth double $150,000 mortgage balance

«%9-

When property sold in April 1986

under gun of foreclosure sale for $840,000

$1,200,000 in rents lost altho bank had

no right to the rents.

~— Haven Savings Bank v General Finance

Conn

Conn Sup Ct 1978

"A foreclosing mortgagee can obtain

rents collected by a receiver only

when the mortgagee can show a de-

ficiency between the amount of th

mortgage debt and the value of the

mortgaged property"

eal

CONCLUSION

eietiiineiansial

May this Honorable Court summarilly

reverse to allow amendment of complaint

with District Court to give statement of

amendments needed or alternatively note

probable jurisdiction.

RESPECTFULLY:

STANLEY V. TUCKER

Petitioner

henson

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 twic® 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 IMMU

NITIES; DUE PROCESS; EQUAL PROTECTION; APPOR.

TIONMENT OF REPRESENTATION; DISQUALIFICATIOX

OF OFFICERS; PUBLIC DEBT; ENFORCEMENT

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

this volume and the preceding volume. See the volume con.

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 pertaining 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 or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to

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

APPENDIX C- Connecticut Practice Book

Sections 504-510

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 receiver 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. (See Gen. Stat., § 52-513 and annotations.)

(P.B. 1963, Bec. 423.)

Sec. 603. Ancillary Receivers

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

duties of ancillary receivers.

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

Sec. 504. Receiver of Rents

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

Sec. 505. Applicability of Previous Sections

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

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

Sec. 506. ———Appointment

Every application for the appointment of a receiver of rents shall

be made in or ancillary to a civil action and may be made either 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 cxamine

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. 607. ——Bond

No suck appointment shall become effective until the receiver shall

have filed a bond in such amount as shail 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, e.g.,

No. 93 Maple Street):

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

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

and effect.

(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, Sec. 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 Dismissing

Appeal

United States Court of Appeals

For the SEcond Circuit

NT eee

TUCKER

No 88-7590

-V-

November 2, 1988

CONN. NATIONAL BANK

seweenn it is ORDERED that the motion

to dismiss be and hereby is

eranted..sss.

APPENDIX E - Decision 2nd CA Denying

Motion to Certify

United States Court of Appeals

For the SEcond Circuit

b

TUCKER

-vV- No 88-7590

Conn National Bank November 2, 1988

paielack It is ORDERED that the motion to

certify be and hereby is denied.....

APPENDIX F - Decision USDC - Connecticut

Dismisssng Complaint

United States District Court

District of Connecticut

STANLEY V. TUCKER C.A. No 87-635 (AHN)

-¥- RULING ON PENDING

MOTIONS

CONN NATIONAL BANK, April 27, 1988

ET Al.

Stanley Tucker, pro se Plaintiff, in this

USC 1983 suit challenges the constituti-

anality of procedures used in Conn. Superior

Court for the appointment and designtion of

duties of rent receivers in foreclosure action.

Tucker sues various parties involved in fore

closure of one of his properties. Presently

before the court are defendants Rule 12(b)6

FRCP motion to dismiss and plaintiff's Rule

56 FRCP motion for summary judgment.The court

grants defendants motion to dismiss in its

entirety, as a consequence, plaintiff's

motion for summary judgment denied as moot.

The complaint is inexpertly drafted, it in-

terweavesfacts and legal argument, but

when distilled sketches the following: In

1966 Hartford National Bank (HNB) predicessor

to defendant Connecticut National Bank (CNB)

issued a construction and permanent mortgage

to plaintiff for an apartment building in

Torrington, Ct. Ten years later HNB initiated a

a foreclosure action against property with

Neil Atlas as HNB counsel. During pendency

of foreclosure suit the Ct Sup Ct appointed

a rent receiver for the property. The rent

receiver purportedly managed the property

causing economic loss to plaintiff. At some

unspecified point in litigation, Defendant

Bourke Spellacy & his law firm replaced

af 26

Atlas as counsel tor HNB.

The complaint fails to mention the

state court odyssey of the foreclosure

action. In its last word on the case, the

Ct Sup Ct noted, "This matter has been ap-

pealed to this court five times. The first

two appeals dismissed, the next two appeals

heard on the merits with decisions rendered...

prsent appeal filed Auguts 17, 1981. HNB v

Tucker, 195 Conn 218, 220 n.2. Cert. Denied

474 US 845 (1985) (Tucker III). In its

summary of the history of the litigation,

the Tucker III court provides the facts

missing from the interstices of theplaint-

iff's federal complaint. According to

the court, the foreclosure action went to

final judgmetn December 2, 1977 and the

trial court ordered the sale of Tucker's

property at public auction. Tucker appealed

to the supreme court. but, on July 24, 1979,

it concluded_HNB v Tucker 178 Conn 472, cert

denied 445 US 904 (Tucker I) that

the superior court committed no error and

remanded for the re-scheduling of public

sale. Tucker III 195 Conn at 220-221.

On July 27, 1979 HNB filed a motion seeking

new date for sale. On August 3, 1979 Tucker

filed motion to reargue his a appeal, that

motion denied Sept 19, 1979. During pendency

of motion to reargue - filing of which is

automatically stay enforecement of judgment-

superior corut granted HNB July 27 motion

and modified Dec 2, 1977 judgment to pro-

vide for public sale in October 1979. Tucker

appeled from modified judgment. In HNB v

Tucker 181 Conn 296 the Supreme Cotrt set

aside the modification of judgment as

entered without judicial authority and

remanded to trial court for scheduling of

yet another public sale.

195 at 221. The trial court conducted hear-

ing on value of premises and amount due on

debt, the ordered sale October 17, 1981

Tucker's last appeal to supreme court fol-

lowedshortly thereafter. Id at 221-22

-F 3-

Tucker contended that the superior

court erred when it appointed a recei-

ver of rents. Id at 223. The Tucker III

court noted that ‘no appeal lies from

the appointment of a receiver of rents

in a foreclosure action.." and the re-

view of the appointment "must await an

appeal from the final judgment of fore-

closure" Id at 223. The Court continued:

"In this case, the receiver of

rents was appanted by the court

in 1976, prior to the entry of

the judgment of foreclosure

Dec 2, 1977. Objectiors Tucker

may have had to the appointment

of the rent receiver was raised

when he appealed from the judg-

ment of foreclosure of Dec 2, 1977.

Since Tucker exercised his right

to appeal from the appointment

of the rent receiver, we are en-

titled to presume he had full op-

ortunity to present his claims.

Our trial and appellate procedures

are not so unreliable that we may n

not affore their complete operation

any binding effect... To the con-

trary a final judgment commands

respect US v Frady, 456 Us 152

Tucker III 195 Conn at 223 - 24

II

The Plaintiff asserts that the superior

court lacked jurisdiction to adopt Conn.

P.B. 504-510, the provisions governing

appointment and duties of rent receivers.

He also alleges that the state court

violated his due process rights because

504-510 allegedly do not give notice of

defenses nor provide for a "meaningful

hearing" where a property owner can

challenge the appointment of a receiver.

Complaint Para 11. Tucker further alleges

the challenged provisions are vague and

fail to set forth standards that will

Note - footnotes ommitted.

=f. de

guide a superior court judge in making

such appointment. Be way of relief he

seeks a declaratory judgment voiding S 504

518. He also seeks various damages stemming

from the depressed rental income and market

value of his property; punitive damages;

attorneys fees; -interest; and costs.

The defendants argue that Tucker is in

reality seeking review of the state court

judgments and those mattera are res judicata

before this court. They also argue that

plaintiff is collaterally estopped from

raising a constitutional challenge to

P.B. 504-510 because that issue could have

been raised at various intervals in the

protracted history of the state court

litigation.

III

The Court relies on a persuasive auth-

ority from this District in granting the

defendants’ motion to dismiss. Tucker v

Northeast, CA H 87 282¢®GD) a case in-

volving Tucker and essencially same issues

raised in this adtion, Judge Peter Dorsey

found that Tucker's suit was

no less an attempt to convert an

appeal of a state court judgment

into a 1983 cause of action. The

portions of the complaint which

allege plaintiff was deprived of

property without due process of

law by defendants application of

rent receiver procedures of P.B.

504-510 in the state foreclosure

proceedings must be dismissed for

lack of subject matter jurisdiction.

Id at 8-9 In Northeast Tucker sued corp-

orate successor to the bank that had filed

foreclosure actions against four of Tucker

properties. He also sued the purchasers of

the foreclosed properties and the attorney

who had represented bank in foreclosure.

Id at 1. Citing District of Columbia Court

of Anneals v Feldman 460 US 462 and

af Se

Rooker v Fidelity Trust 263 US 413. Judge

Dorsy found that a federal district court

lacks subject matter jurisdiction to re-

view the final judgment of a state court.

Northeast slip op at 5-6. Such review

may only be had in the Supreme Court of

the United States"Id at 6 See also Sam

& Mary Housing Corp v New york 632 F Supp

1446 Judge Dorsey noted that Tucker had

raised constitutional due process chall-

enges to P B 504-510 in his appeal from

trial court's entry of judgments of strict

foreclosure. Id at 3 HFS & L v Tucker

196 Conn 172, 177/ Cert denied 474 US

920. Because the Ct Sup Ct had determined

that Tucker's due process rights were not

violated, Judge Dorsey concluded that fed-

eral relief sought by Tucker could be

awarded only if a federal court found that

the state tribunal was wrong. "That this

court is without jurisdiction to do" North-

east slip op at 8 (citing Pennzoil Co v

Texaco US __ 1987.

In the instant case, Tucker also seeks

to relitigate state proceedings by naming

CNB and its counsel in the foreclosure

matters as federal defendants. Though it

appears that Tucker did not raise a direct

constitutional challenge to P.B. 504 510

during the life span of the state court

case, there is nothing before this court

to indicate that Tucker was precluded

from doing so. As the Conn Sup Ct noted

Tucker III - Tucker has "full opportunity

to present his claims" during the app-

ellate process. 195 Conn at 224, Moreover

Tucker's failure to raise his constitu-

tional challenges in state court does not

permit him to raise them now in federal

corut. District of Columbia Court of ©

Appeals 460 US at 484°n I6. Thus those

portions of the complaint supporting

Tucker's claim for relief from the effect

x=

of the state court judgments must be dis-

missed for lack of subject matter juris-

diction.

In addition to allegations directed at

the state court foreclosure action, Tucker

also challenges the facial validity of

S 504 -510. He alleges that the application

of the rent receiver provisions deprives

property owners of federally=protected due

process rights. Complaint P 10-14. In con-

trast to federal suits seeking review of

state court final judgments, general chall

enge to the constitutionality of state laws

are within the subject matter jurisdiction

of federal courts. District of Columbia

Court of Appeals 460 US at -84. See also

Northeast Savings Slip op at 9. Thus though

this court lacks the power to review the

state court foreclosure judgment against

Tucker, it does possess jurisdiction to

address plaintiff's constitutional challenge

to Connecticut's rent receiver regulation.

Tucker's request for declaratory relief

must fail, however, because the plaintiff

lacks standing to seek such relief. Each

of his alleged injuries emanates from the

state corut proceeding and the purported

errors committed therein. "It is elemen-

tary that a litigant is not entitled to have

a court decide the merits of an issue he

raises unless he can show some basis for

arguing that the challenged action has

caused him a cognizable injury" ASso Against

Brid

Discrimination in Employment v eport,

710 F 2d 69, 73. Citing Simon v E Kentucky

Welfare Rights 426 US 26, . Tucker has

fully litigated the foreclosure matter in

the state court and has unsuccessfully

sought review in the U.S.Supreme Ct.

Because the state court foreclosure action

i Fa

is not reviewable by this court, and because

cause there is no allegation that pros-

pective application of S 504-510 will

cause the plaintiff redressable harm,

Tucker lacks the "distinct and pap-

pable injury'that is a necessary under-

pinning for standing to pursue a facial

challenge to the rent receiver proced-

ures. 106 Mile Transport Associates

v_Koch, 656 F Supp 1474, 1480 quoting

Allen v Wright 468 US 737, 752 1984

CONCLUSION

For the foregoing reasons, the

court grants in it entirely the def-

endant's Rule 12(b) 6 FRCP motion

to dismiss. As a result the plaintiff's

Rule 56, FRCP, motion for summary jud-

gment is denied as moot.

SO ORDERED this 27th day of April 1988

at Hartford, Connecticut.

s/

ALAN H NEVAS

Judge USDC

Note - Footnotes ommitted.