Opposition Brief — Thompson v. City of Covington

: | Supreme Cour, US,

3 | jun 23 Be

PH F, SPANIOL,

No. 88-1965 | a ia

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

PATRICIA THOMPSON and

EDDIE THOMPSON, JR.

Petitioners

VS.

CITY OF COVINGTON, THOMAS EPPERSON,

TODD FINAN, HENRY WARDEN, JOSEPH CONDIT,

JOHN ELFERS, DOUGLAS STEPHENS,

PEOPLES LIBERTY BANK, RICHARD NELSON,

RALPH HAILE AND UNNAMED PERSONS

Respondents

REPLY OF RESPONDENTS

PEOPLES LIBERTY BANK, RICHARD NELSON AND

RALPH HAILE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

RICHARD S. NELSON

Attorney for Peoples Liberty Bank,

Richard Nelson, Pro Se, and

Ralph Haile

11 West Sixth Street, P.O. Box 1209

Covington, Kentucky 41012

(606) 291-1511

emenoinesse

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

: QUESTIONS PRESENTED FOR REVIEW

1. Is there a Federal question presented so as to justify re-

view by this Court?

2. Have all issues alleged been previously fully adjudicated?

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... I

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TABLE OF AUTHORITIES

Cases Page

Patricia Thompson and Eddie Thompson, Jr. v.

Richard S. Nelson, et al., (no Fed. Supp.

published opinion) 109 F. 2s 1509 (6th Circuit),

Cert. Denied 464 U.S. 829, 104 S. Ct. 104,

NS Ee ca 6

Patricia Thompson and Eddie Thompson, Jr. v.

Peoples Liberty Bank, 451 U.S. 909,

Ro it) OR A by Gr 6

Rules of Court

ee Ee ee 1-2, 4

No. 88-1965

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

PATRICIA THOMPSON and

EDDIE THOMPSON, JR.

Petitioners

VS.

CITY OF COVINGTON, THOMAS EPPERSON,

TODD FINAN, HENRY WARDEN, JOSEPH CONDIT,

JOHN ELFERS, DOUGLAS STEPHENS,

PEOPLES LIBERTY BANK, RICHARD NELSON,

RALPH HAILE AND UNNAMED PERSONS

Respondents

REPLY OF RESPONDENTS

PEOPLES LIBERTY BANK, RICHARD NELSON AND

RALPH HAILE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

SUPREME COURT RULES

Sup. Crt. Rule 17(1)

“A review on writ of certiorari is not a matter of right,

but of judicial discretion, and will be granted only when

there are special and important reasons therefor. The

following, while neither controlling nor fully measuring

the Court’s discretion, indicate the character of reasons

that will be considered.

2

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another federal

court of appeals on the same matter; or has decided a

federal question in a way in conflict with a state court of

last resort; or has so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exer-

cise of this Court’s power of supervision.

(b) When a state court of last resort has decided a

federal question in a way in conflict with the decision ot

another state court of last resort or of a federal court of

appeals.

(c) When a state court or a federal court of appeals

has decided an important question of federal law which

has not been, but should be, settled by this Court, or has

decided a federal question in a way in conflict with ap-

plicable decisions of this Court.”

COUNTERSTATEMENT OF CASE

Petitioners filed a 96-paragraph rambling pro se Complaint

against numerous individuals, a municipality and a bank,

alleging various acts of “wrongdoing” that supposedly took

place years before. Motions were filed to dismiss the action as

barred by the applicable Kentucky Statutes of Limitations.

As it pertains to Respondents Peoples Liberty Bank,

Richard Nelson and Ralph Haile, the Kentucky State Trial

Judge dismissed Petitioners’ Complaint with the following

language (Petitioners’ Appendix p. 24a):

“5. The court has carefully scrutinized the complaint

and researched plaintiffs’ alleged causes of action against

Peoples Liberty Bank, Richard Nelson and Ralph Haile

set forth in the complaint, and specifically in paragraphs

8, 9, 14, 17, 18, 19, 20, 21, 34, 35, 36, 37, 38, 39, 44, 45,

46, 47, 48, 49, 53 and 54. All of the alleged actions by

these named defendants are alleged to have occurred

3

more than five years prior to the filing of this action

(September 12, 1986). All of plaintiffs’ causes of action,

according to the assertions contained in the complaint,

are subject to the limitations of actions provisions con-

tained in KRS 413.140 and KRS 413.120.

Therefore, IT IS ORDERED as follows. . .

E. Good cause having been shown by the record and

motion of Hon. Richard §. Nelson, counsel for himself,

Peoples Liberty Bank and Ralph Haile, said named

defendants’ motion for an extension of time in which to

answer or otherwise plead in this case is SUSTAINED.

Said defendants’ CR 12.02(F) motion is SUSTAINED,

and Peoples Liberty Bank, Richard Nelson and Ralph

Haile are hereby DISMISSED from this action and shall

recover of plaintiffs their costs herein expended. . . .”

The Kentucky Court of Appeals affirmed the dismissals

(Petitioners’ Appendix p. 29a) and the Kentucky Supreme

Court denied discretionary review (Petitioners Appendix p.

33a). This Petition for Writ of Certiorari followed.

4

ARGUMENT

1. IS THERE A FEDERAL QUESTION PRESENTED SO

AS TO JUSTIFY REVIEW BY THIS COURT?

The answer is “no”,

While not totally exclusive, there are, under the Rules of

this Court, guidelines which are designed to aid the Court in

using its discretion in reviewing writs of certiorari. First, Sup.

Crt. Rule 17(1)(a) is of no relevance, dealing solely with peti-

tioners from Federal Courts. Second, Sup. Crt. Rule 17(b)

and (c) are further unfulfilled by the Petition at Bar as there

has been no federal question ruled on by any state court

below. Indeed, the Order of the Trial Court at issue (Peti-

tioners’ Appendix p. 22a) herein was one of pure procedure

and violated no rights of the Petitioners, Federal or other-

wise.

The only “Federal Question” raised by Petitioners is that

the state trial refused to give full faith and credit to a prior

Judgment of the Kentucky Court of Appeals. That allegation

is unsupported by the record but even if it were somehow cor-

rect, Article IV of the U.S. Constitution requires full faith

and credit by one state to the judicial procedures of every

other state (Petitioners’ Appendix p. VII).

Obviously, no federal question exists.

5

2. HAVE ALL ISSUES ALLEGED BEEN PREVIOUSLY

FULLY ADJUDICATED?

The answer is “yes”.

The following constitute only a portion of the prior vex-

atious and harassing litigation involving Petitioners’ claims

against Respondents and others, fully adjudicated, and grow-

ing out of the same operational facts for which Petitioners

again complain in the case at Bar:

Eddie Thompson, Jr. and Patricia Thompson v. Peoples

Liberty Bank and Trust Company, Kenton Circuit

Court No. 31053 and 33430; appeal dismissed by Ken-

tucky Court of Appeals in CA-2149-MR (2/7/78); Motion

to Reconsider denied by Kentucky Court of Appeals

(3/30/78); discretionary review denied by Kentucky

Supreme Court (8/24/82); cert. denied by U.S. Supreme

Court in Case No. 82-835 (2/22/83).

Eddie Thompson, Jr. and Patricia Thompson v. Peoples

Liberty Bank and Trust Company, Kenton Quarterly

Court No. 9817; Kenton Circuit Court No. 33430; Ken-

tucky Court of Appeals No. 79-CA-1456-MR; discre-

tionary review denied by Kentucky Supreme Court in

No. 80-SC-440-D (11/18/80); cert. denied by U.S.

Supreme Court in Case No. 80-1358 (4/20/81).

Thompson v. Peoples Liberty Bank, U.S. District Court,

Eastern District of Kentucky, Case No. 81-5169, af-

firmed by Sixth Circuit Court of Appeals in 705 F.2d

458.

Thompson v. Woltenberg, U.S. District Court, Eastern

District of Kentucky, No. 80-3411, affirmed by Sixth

Circuit Court of Appeals, 665 F.2d 1047. (Woltenberg is

a Deputy Kenton District Clerk.)

Thompson v. Wood, U.S. District Court, Eastern

District of Kentucky, No. 80-3598, affirmed by Sixth

Circuit Court ‘of Appeals in 698 F. 2d 1223. (Wood is

Kenton County Clerk).

6

Thompson v. Peoples Liberty Bank, U.S. District Court,

Eastern District of Kentucky, No. 78-3525, affirmed by

the Sixth Circuit Court of Appeals in 601 F.2d 590.

Thompson v. Peoples Liberty Bank, U.S. District Court,

Eastern District of Kentucky, No. 78-3169, affirmed by

Sixth Circuit Court of Appeals in 586 F.2d 844.

Thompson v. Kenton County Board of Elections Com-

mission, Kentucky, 535 S.W. 2d 68, appeal dismissed,

cert. denied 96 S. Ct. 873, 423 U.S. 1083, 47 L. Ed. 94.

Thompson v. Judge Daniel Goodenough and Sheriff

James Crowell, U.S. District Court, Eastern District of

Kentucky, No. 78-58. (Trial Judge in foreclosure action

and Kenton County Sheriff in writ of possession enforce-

ment. )

Thompson v. Peoples Liberty Bank, Richard Nelson, et

al, U.S. District Court, Eastern District of Kentucky,

No. 77-73, affirmed in Sixth Circuit Court of Appeals in

No. 78-3169.

Thompson v. Richard Nelson, U.S. District Court,

Eastern District of Kentucky, No. 78-57.

Thompson v. Richard Slukich, Peoples Liberty Bank,

Ralph Haile and Richard Nelson, U.S. District Court,

Eastern District of Kentucky, No. 78-70.

Thompson v. Peoples Liberty-Bank, Kentucky Court of

Appeals, No. 81-CA-1671-MR.

In particular, the following cases fully disposed of the

allegations of Petitioner:

Patricia Thompson and Eddie Thompson, Jr. v. Richard

S. Nelson, et al., (no. Fed. Supp. published opinion) 109

F.2d 1509 (6th Circuit), Cert. Denied, 464 U.S. 829, 104

S. Ct. 104, 78 L. Ed. 2d 108.

Patricia Thompson and Eddie Thompson, Jr. v. Peoples

Liberty Bank, 451 U.S. 909, 101 S. Ct. 1977, 68 L. Ed.

2d 297.

~

As Judge William O. Bertelsman of the United States

District Court for the Eastern District of Kentucky found,

“the record clearly discloses the legality of the foreclosure and

subsequent eviction [and] has already been extensively

litigated in state court” (these Respondents’ Appendix p. 2a).

In addition, the same Honorable Court stated:

‘However, the record clearly discloses the legality of the

foreclosure and subsequent eviction. It (sic) clear that

the plaintiffs case consists simply of naked allegations

and nothing more and was from its inception totally

frivolous.” (These Respondents’ Appendix p. 7a).

It is respectfully submitted that the time has arrived to put

a stop to this harassment by the Petitioners and abuse of the

court system.

CONCLUSION

It is clear that no federal question has been presented to

justify a review by this Court and, further, the issues alleged

have been previously fully adjudicated in both state and

federal courts. The within Petition for a Writ of Certiorari

should be denied.

V Me. d,

Le fen, a:

RIC ae S. NELSON

Attorney for Respondents,

Peoples Liberty Bank, Richard Nelson

pro se, and Ralph Haile

11 W. Sixth Street

P.O. Box 1209

Covington, KY 41012

(606) 291-151]

8

CERTIFICATION

Pursuant to Supreme Court Rule 28, I hereby enter my ap-

pearance in respect to the within cause and I do further cer-

tify that copies of the within Reply Brief were served this PF ig

day of June, 1989, upon Stephen T. McMurtry, Esq., 308

Greenup Street, Covington, KY 41011; Martin Huelsman,

Esq., 88 Thompson Avenue, Fort Mitchell, KY 41017;

Frederic J. Cowan, Attorney Gener’ and Ms. Patricia Todd

Thomas, Assistant Attorney General, Capitol Building,

Frankfort, KY 40601-3494; Mr. John C. Scott, 403 Wapping

Street, Frankfort, KY 40601; Patricia Thompson, P.O. Box

1221, Covington, KY 41012; and Eddie Thompson, Jr., P.O.

Box 1221, Covington, KY 41012, by mailing 3 copies of same

to each of them, first ‘a e prepaid, United States

Mail. :

\

RICHARD S. NELSON

Pro se and Attorney for

Peoples Liberty Bank and Ralph Haile

11 West Sixth Street

P.O. Box 1209

Covington, KY 41012-1209 -

(606) 291-1511

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CONSOLIDATED CIVIL ACTION

NOS. 78-57, 78-70 and 79-40

No. 78-57

EDDIE THOMPSON, JR., ET AL.

Plaintiff

VS.

RICHARD NELSON

Defendant

No. 78-70

EDDIE THOMPSON, JR., ET AL.

Plaintiff

VS.

RICHARD SLUKICH, ET AL.

Defendant

No. 79-40

EDDIE THOMPSON, JR., ET AL.

Plaintiff

VS.

PEOPLE’S LIBERTY BANK, ET AL.

Defendant

ORDER

(Filed October 29, 1980)

la

Qa

On September 26, 1980, this court consolidated the three

above actions brought by the plaintiff, Eddie Thompson. All

three actions alleged a conspiracy to deprive the plaintiff of

his Civil Rights through the foreclosure of the plaintiffs home

and subsequent eviction of the plaintiff. The plaintiff has ad-

ditionally alleged various acts of harassment, all done in con-

cert to deprive him of his Civil Rights. One of these alleged

acts of harassment, the use of excessive force in effecting an

arrest by defendant police officers Epperson, Tucker, and

Finan was tried by a jury on October 23rd and 24th of 1980,

with the plaintiff appearing pro se. The jury returned for the

defendants. The court is now faced with the question of the

liability of the remaining individual and institutional defen-

dants on cross-motions for summary judgment.

The court in an exhaustive search of the record, and after

extensive pretrial conferences with the parties, concluded that

the plaintiffs were attempting to convert a state action into a

federal one by conclusionary allegations of conspiracy and

race-motive animus. The plaintiff's were given 30 days from

September 26, 1980, to file additional memoranda and af-

fidavits in opposition to the defendant’s motion for summary

judgment and to allow the plaintiffs to flesh out their allega-

tions concerning conspiracy and race-motiviated actions.

The plaintiffs have filed extensive affidavits and memoran-

da in support of their position. After careful scrutiny of these

documents, the court must conclude the plaintiffs have no

evidence to offer of either racial animus or a conspiracy to

deprive the plaintiffs of their constitutional rights. It is clear

that there is no dispute as to the material facts of the case.

The plaintiffs would have this court believe that the

foreclosure and eviction were deliberate conspiracies against

them based simply on the fact such events took place. As the

record clearly discloses the legality of the foreclosure and

subsequent eviction has already been extensively litigated in

state court. Therefore, the court being advised,

IT IS ORDERED as follows:

1. That the defendants’ motion for summary judgment

are granted.

2. That the plaintiff's motion for summary judgment is

denied.

3. That the defendants have 10 days from the date of this

order to file a request for attorney's fees.

A separate judgment has been filed concurrently herewith.

This 29th day of October, 1980.

s/ WILLIAM O. BERTELSMAN

JUDGE

4a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CIVIL ACTION 79-40

EDDIE THOMPSON, JR.. Al

Plai Il

VS.

PEOPLE’S LIBERTY BANK, ET AL

Defendant

JUDGMENT

Filed October 29. 1980

In accordance with the order entered concurrentl

herewith,

IT IS ORDERED AND ADJUDGED that the complaint

be, and hereby is, dismissed, with prejudice, at the cost of th

laintiff.

This 29th day of October, 1980

WILLIAM O. BERTELSMAN

JUDGE

Ja

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CONSOLIDATED CIVIL ACTION

NOS. 78-57, 78-70 and 79-40

No. 78-57

EDDIE eis son JR., Al

Plaintiff

VS.

RICHARD NELSON

Defendant

No. 78-7(

EDDIE THOMPSON. 1. AL.

Plaintiff

VS.

RICHARD SLUKICH, ET AL.

Defendant

No. 79-40

EDDIE THOMPSON, JR., AL.

Plaintiff

VS.

PEOPLE’S LIBERTY BANK, ET AL.

Defendant

ORDER

(Filed December 18, 1980)

This matter comes before the court on the motions of the

various defendants, in the above consolidated actions, seeking

an award of attorney's fees pursuant to 42 U.S.C. § 1988.

6a

On September 26, 1980, this court consolidated the three

above actions brought by the plaintiffs Eddie Thompson, Jr.

and his wife, Patricia Thompson. All three actions alleged a

conspiracy to deprive the plaintiffs of their civil rights in the

foreclosure of the plaintiffs’ home and subsequent eviction of

the plaintiffs. The plaintiffs additionally alleged various acts

of harassment, all allegedly done in concert to deprive them

of their civil rights. One of these alleged acts of harassment,

the use of excessive force in effecting an arrest by defendant

and police officers Epperson, Tucker and Finan was tried by

a jury on October 23rd and 24th of 1980, with the plaintiffs

representing themselves. The jury returned for the defen-

dants. On October 29, 1980, this court granted summary

judgment on behalf of all remaining defendants.

Now, the defendant Richard Slukich, by and through his

counsel, Steven D. Wolnitzek, seeks an award of attorney’s

fees totaling $2,628.13 for work expended in Civil Action No.

78-70.

The defendants People’s Liberty Bank and Richard Haile,

by and through their counsel Richard S. Nelson, seek an

award of attorney’s fees for work expended in Civil Action

Nos. 78-70 and 79-40. In addition, James Liles and Bernard

Smith seek through and by their counsel Richard Nelson, at-

torney’s fees for work expended in Civil Action 79-40. In the

same motion the defendant Richard Nelson seeks in propria

persona, attorney's fees expended in his own defense in Civil

Action 78-57, 78-70 and 79-40. In addition, the above defen-

dants make an argument that fees for numerous other vex-

atious actions brought by the plaintiffs against these and

other defendants should be awarded to the defendants

through the inherent powers of the court. However, the court

is not inclined to consider awarding fees for any but the above

consolidated cases.

The defendants Epperson, Finan and Tucker, by and

through their counsel Steven McMurtry, seek attorney's fees

for work expended in Civil Action 79-40.

The Supreme Court in Christiansburg Garment Company

v. E.E.O.C., 434 U.S. 412 (1977) set out requirements for an

7a

award of attorney's fees under 42 U.S.C. § 2000E-5(k) to the

defendants when they prevail. The language of that statute is

identical to that of 42 U.S.C. § 1988 and the Supreme Court's

construction of 42 U.S.C. § 2000E-5(k) is applicable to the

awarding of attorney's fees to defendants under § 1988.

Lopez v. Arkansas City Independent School District, 570

F.2d 541 (1978). According to Christiansburg, a prevailing

defendant can recover attorney's fees only if the claim made

by the plaintiff was frivolous, unreasonable or groundless.

In the matter of the claim against the defendants Epper-

son, Tucker and Finan, it is not clear that the claim was com-

pletely frivolous, unreasonable or so groundless as to grant the

defendants attorney’s fees. The court must note that the claim

arose out of an incident of confused circumstance. While the

jury after one-and-a-half hours of deliberation came to the

conclusion that the plaintiff's claim was meritless, the court is

loathe to engage in post hoc reasoning on the basis of the

jury's verdict. Christiansburg Garment Company v.

E.£.0.0,, at p.42i.

However, an award of attorney’s fees is in order for the re-

maining defendants. On October 29, 1980, the court granted

the defendant’s motion for summary judgment. After an ex-

haustive search of the record and extensive pretrial con-

ferences with the parties disclosed that the plaintiffs were at-

tempting to convert a state action into a federal one by

naked, conclusionary allegations of conspiracy and _ race

motive animus. It is clear that there is no true dispute as to

the material facts of this case. The plaintiffs would contend

that the foreclosure and eviction were deliberate actions

taken against them by a conspiracy of the defendant.

However, the record clearly discloses the legality of the

foreclosure and subsequent eviction. It clear that the

plaintiffs case consists simply of naked allegations and

nothing more and was from its inception totally frivolous.

The court is reluctant to assert attorney fees against in-

dividuals. However, its dockets are too overburdened to

entertain vexatious and harrassing litigation. The plaintiffs

have filed 15 lawsuits in this court since 1977, almost all of

8a

them frivolous in nature. There are too many people who

have invoked the jurisdiction of the court in good faith to per-

mit them to be deprived of the justice to which they are en-

titled because substantial amounts of the court’s time are oc-

cupied by appurious lawsuits of the kind invoived here.

Therefore, the court being advised,

IT IS ORDERED as follows:

1. That in Civil Action No. 78-57 defendant Richard

Nelson be awarded $960 for attorney's fees.

2. That in Civil Action No. 78-70 the defendant Richard

Slukich be awarded $2,628.13 for attorney's fees; and the

defendants People’s Liberty Bank & Trust Company, Richard

V. Haile, Jr., Jarnes Liles, Bernard Smith, and Richard S.

Nelson be awarded attorney's fees for a total of 32 hours of

work on the above consolidated cases at a rate of $60 per hour

for a total of $1,920.

3. That in Civil Action No. 79-40 the motion for an

award of attorney's fees for the defendants Epperson, Tucker

and Finan be, and hereby is, denied.

4. That the judgment be, and hereby is, joint and several

against the plaintiffs, Eddie Thompson, Jr. and Patricia

Thompson.

This 8th day of December, 1980.

/s) WILLIAM O. BERTELSMAN

JUDGE