Petition — Vaughn v. Hinchy

—

NO.

ca Supreme 00

82-866 FILLED

noy <3 782

ALEXANOER t STEVA

IN THE 2

OF

THE UNITED STATES

OCTOBER TERM, 1982

MARY VAUGHN

PETITIONER,

VS,

HINCHY,WITTE,WOOD-ANDERSON.HODGES & BOSTWICK

LAW FIRM

RESPONDENTS,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY VAUGHN, PRO SE

San ble. CAL l oD

TELEPHONE: 619/233-0505

9 o W / K K e Ww —

10

R DS S 8 8

QUESTION PRESENTED

(1)

Was it in the interests of

substantial justice for the District

Court to dismiss plaintiff's complaint

without leave to amend and with

prejudice, on jurisdiction grounds,

when facts alleged in the complaint

might have supported a cause of

action within the jurisdiction of the

District Court? (D.C. No, 1053)

o a / ä K eo Wo —

—

So

REBBRBERE SS 8

TABLE OF CONTENTS

OPINION BELOW . its ee ae . 2

JURISDICTION , ° * 898 255

PARTIES ¢« e ae ee . 3

STATUTORY PROVISIONS

INVOLVED 2. . ° 3 . 4

STATEMENT OF THE CASE —< < 1-9

ARGUMENT AND REASONS FOR

GRANTING THE WRIT * — „ 9-12

CONCLUSION ° ° . . ° 13

DECLARATION OF SERVICE ., . 14

ii

0% o A O g K e —

85 * F 8 BE S

R ND S S ER 8

TABLE OF AUTHORITIES CITED

CASES

Page

In determining whether subject 10

matter jurisdiction exists, the

court will construe the complaint

broadly. If there are any facts

from which jurisdiction might be

inferred, the motion should be

denied. (Thomson v, Gaskill,

315 J. S. 42 (1942). „„ „„ „ „„ 60% 60% „

Complaint should not be dismissed 11

merely because plaintiff's al-

legations do not support part-

icular legal theory he advances,

nor should complaint be dis-

missed that does not state with

precision all elements that

give rise to legal basis for

recovery or merely because court

doubts that plaintiff will pre-

vail in action. Bremlet v.

iii

10

R N 8 S 88

9 0 o w A d K e t —

—

Wilson (1974, CA 8 Ark.) 495

F2d 714 (disagreed with

Ingraham v. Wright (CA 5 Fla)

525 F2d 909, affd. 430 U.S. 651

51 Le Ed., 2d. 711, 97 8. Ct.

1001.) %3%„ñßh0

If complaint states any claim on

which plaintiff might possibly

recover, complaint should not

be dismissed without trial or

motion for summary judgment.

(Sunbeam Corp. v. Payless Drug

Stores (1953 D.C. Cal) 113 F

Supp. 3e ⸗/·

Complaint must be construed in

light most favorable to plaintiff,

and motion to dismiss should

not be granted it if is reason-

ably conceivable that plaintiff

may establish a cause of action,

(Cohen v. United States (1942 CA

8 Minn.) 129 F 2d 733.

iv

Page

11

12

%o n K e we —

10

R N S S 88

Pro se civil rights complaint is

to be liberally construed; more-

ever, motion to dismiss (prison-

er's) rights, action for failure

to state claim is subject to

very strict standard of review.

(United States ex, rel. Smith

Ye Robinson, (1980, Ed. PA.)

95 F Suppe 696)))):

Plaintiff appearing pro se

deserves to have complaint

reviewed by less stringent

standard then when drafted by

lawyer. (Morpurgo ve Board of

Higher Education (1976, DC NY)

423 F Supp. 704.) secccccceces

Allegations in a complaint are to

be accepted as true for purposes

of considering a motion to dis-

miss under Rule 12 (b). Hochman

Ve BOARD OF EDUCATION (1976 CA

3 N. J.). 534 F 2d 1094.)

v=

Page

12

12

12

PeeneRVeseses & RSE BR Be Bee a ann © to —

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM

1982

PETITIONER

MARY VAUGHN

vs

HINCHY,WITTE,WOOD,ANDERSON,HODGES AND

BOSTWICK LAW FIRM, RESPONDENTS.

. ....

STATUTES

UNITED STATES CODE: FEDERAL RULES OF cri.

PROCEDURE, RULE 8 (f)

PETITION FOR A WRIT OF

CERTIORARI

To the United States District Court,

Southern District of California and the

United States Court of Appeals for the

Ninth Circuit

THE PETITIONER, MARY VAUGHN, respectfully

prays that a Writ of Certiorari issue per-

ole

1 mitting her to file an amended compiaint,

2} with the assistance of counsel in the

3 United States District Court, Southern

4] District of California, in the matter of

5 | Mary Vaughn, Petitioner

6 vs.

7 Hnchy, Atte, ood, Anderson, Hodges, and

8 Bost si & Law Firn.

9

19 | Docket Number 80-1053.

11

12

13

14

15

16

17

18

19

20

21

22

23 14

oomonveaw#se -K % Ww —

= S

RRBBEBS &

OPINION BELOW

The Memorandum of the Court of

Appeals (Ninth Circuit), in this matter,

appears in he appendix hereto,

(ExutBits A,B. C & D)

JURISDICTION

The judgment of the Court of

Appeals for the Ninth Circuit was

entered on May 28, 1982, and its Order

denying a petition for rehearing was

entered on July 28, 1982. A petition

for an extension of time within which

to file this Petition was timely filed

and an extension of time of thirty days

beyond the ninety day period of time

was granted by this Court on October

19, 1982, extending time to and in-

cluding November 24, 982. (EXHIBIT - A)

Jurisdiction for this petition

arises under the Federal Rules of Civil

Procedure, Rule 8 (f) which governs the

construction of pleadings in the interest

of justice.

PARTIES

o n ee

10 The sole party plaintiff is Mary

11 Vaughn.

12 The party's defendants are:

18 Hinchy, Witte, Wood, Anderson, Hodges and

14 Bostwick Law Firm and their address is:

15 ZeOO-Ath. Avenue

San Diego, California 92013

R S S 88 8 8

%o K e we

—

o

R D 8 8 8 BEE 8

STATUTORY PROVISIONS INVOLVED

Federal Rules of Civil Procedure

(Rule 8 (f).

Federal Rules of Civil Procedure,

(Rule 12 (b).

STATEMENT OF THE CASE

In 1976, Petitioner, Mary Vaughn,

hired the defendant/respondent law firm,

Hinchy, Witte,Wood,Anderson,Hodges and

Bostwick, to represent her and to pursue

her interests in a case against a

company that had fraudulently sold her

goods, The Hinchy law firm failed to

file a timely action against the of-

fending company, thus losing her cause

of action; and they further engaged in

other conduct towards petitioner that

caused her financial harm and damage,

in particular, forcing her into a

filing in Bankruptcy thet was both

unnecessary, frauduleut, and against her

will. The bankruptcy matter was finally

dismissed in 1980 when petitioner

refused to sign the statement of cred-

itors which she claimed was false and

fraudulent.

Petitoner attempted to discharge

the Hinchy firm as her attorneys, but

they would not be fired; she made many

attempts to hire other counsel to re-

place them, but this was not successful

and even after the Hinchy firm dismissed

itself as her attorneys of record, fol-

lowing the bankruptcy dismissal, she

was thwarted in every attempt to hire

an attorney in San Diego County,

California, who would pursue her claim

for damages and judicial relief against

-5-

%o 1 A ‚⏑ K eo wo —

—

—

11

the respondent, Hinchy, Witte, Wood,

Anderson, Yodges, and Bostwick Law Firm,

(The affidavit of Mary Vaughn

filed with this Court in support of her

request for extension of time, and which

is set forth in the appendix hereto

describes her attempts to obtain legal

counsel, appendix - omit . and

following).

Petitioner was forced to defend

herself and thus was compelled, not of

choice, to sue and file her complaint

against defendant/respondents as her own

attorney, in pro sé.

The lawsuit filed in pro se alleged

malpractice, false billing, and a viol-

ation of civil rights. The complaint

prepared by petitioner was noticably

without proper form and contained exces-

sive berbage and rhetoric. However, th®

facts upon which she leased claims for

-6-

% 1 ‚‚ ⏑ K © wo —

R ND 8 S 8 SS

relief were duly alleged and recited,

The causes of malpractice and false

billing were and are outside the subject

matter jurisdiction of the Federal

District Court since they are civil

matters and the case was without

diversity of citizenship. The facts

alleged as violating her civil rights,

a conspiracy between federal judges

and defendant attorneys did not fall

within the jurisdiction of the federal

civil rights legislation cited; namely

Title 42, section 1983. Hence

petitioner's complaint was properly

dismissed for lack of jurisdiction in

light of the federal civil rights

legislation cited,

However, and nonetheless

petitioner's complaint alleged that a

conspiracy existed between the Hinchy,

Witte,Wood,Hodges,Anderson and Bostwick

o u ;D K e wo —

—

—

R N 8 S 2 BS SE

Law Firm and federal judges to deny her

access to the courts, At no time does

the Order of the District Court dismis-

sing her compldnt (See Appendix, D- 1),

or the Memorandum or Order of the Ninth

Circuit Court of Appeals (see Appendix B-l

&C-1) suggest that the facts alleged in

petitioner's complaint were frivolous,

The statement of the case and facts

as set forth in the Ninth Circuit Court's

Memorandum is correct. (See Appendix C-!)

The Order of the Federal District

Court, Southern District of California,

was that plaintiff/petitioner's complaint

be dismissed with prejudice, and without

leave to amend, (EXHIBIT D-1)

Petitioner believes that the facts

alleged in her complaint that she was

denied access through the courts by a

conspiracy, believes the respondent

Hinchy, Witte,Wood,Anderson, Hodges and

-8—

0 S K © tte —

10

Bostwick Law Firm and the federal judges

if true, would have given her a right to

judicial relief of some sort; and that

if the judicial relief she was entitled

to did not fall within the protection

of the civil rights rules she innocently

and ignorantly relied on, then she

should have been permitted by the District

Court to amend her complaint, if pos-

sible, to cite a rule or theory of

relief that was proper and acceptable.

ARGUMENT AND REASONS FOR GRANTING THE WRI]

Petitioner alleged in her complaint

that she was denied access to the courts

because of a conspiracy between the

Hinchy, Witte, ood, Anderson, Hodges and

Bostwick Law Firm and federal bankruptcy

judges, If the allegations be true, as

-9-

oomosnsnaeg#»#»# K e —

10

R N SRE SES 8

they must be assumed to be for these

purposes, eurely petitoner is entitled

to some form of judicial relief in the

federal courts. If not on a theory of

denial of civil rights as petitioner

claimed, then upon some other theory of

relief, She should be permitted to amend

her complaint, in the interests of

justice, to set forth such other and

proper theory of relief acceptable to

the federal courts, And such is th

policy of federal procedural justice,

All pjeadings shall be so construed

as to do substantial justice. (Rule 8

(f) Federal Rules of Civil Procedure).

In determining. whether subject

matter jurisdiction exists, the court

will construe the complaint broadly.

If there are any facts from which

jurisdiction might be inferred, the

motion should be denied. (Thomson Z.

Gaskill,315 U.S. 442 (1942).

10

como nt oc ot fF te —

—

O

R D 8 S 8 BSE &

Complaint should not be dismissed

merely because Plaintiff's allegations

do not support particular legal theory

he advances, nor should complaint be

dismissed that does not state with

precision all elements that give rise to

legal basis for recovery, or merely

because court doubts that plaintiff will

prevail in action. Bremlet v,. Wilson(1974

Ca 8 Ark.) 495 F2d 714, (Disagreed with

Ingraham v. Wright (1974, CA 5 FIM.)

525 Fed 909, af fd. 430 U.S. 651, 51 L. Ed.

2d 711, 97 SeCt. 1401.)

If complaint states any claim on

which plaintiff might possibly recover,

complaint should not be dismissed without,

trial or motion for summary judgment.

(Sunbeam Corp. v. Payless Drug Stores

(1953 d. C. Cal.) 113 F Supp. 31.)

Complaint must be construed in

light most favorable to plaintiff, and

motion to dismiss should not be granted

11

cocoomonvonws K wo wo

10

—

©

R NDS S 8 8

if it is reasonably conceivable that

plaintiff may establish a cause of action,

(Cohen ve United States (1942 CA 8 Minn.)

129 F 2d 733.)

Pro se civil rights complaint is to

be liberally construed; moreover, motion

to dismiss (Prisoner's) rights, action

for failure to state claim is subject

to very strict standard of review,

(United States ex, rel, Smith vs

Robinsen (1980, Ed PA.) 495 F Supp.

696.)

Plaintiff appearing pro se deserves

to have complaint reviewed by less

stringent standard than when drafted by

lawyers. (Morpurgo v, Board of Higher

Education (1976, DC NY) 423 F Supp. 704.)

Allegations in a complaint are to

be accepted as true for purposes of

considering a motion to dismiss under

Rule 12 (b). Hochman v, Board of Educ-

ation (1976 CA 3 NU). 534 F 2d 1094.)

-12-

o a A Ä» K © Ww —

10

8 &

R D S8 S ERS

CONCLUSION

For the foregoing reasons,

petitioner respectfully prays that a Writ

of Certiorari should issue permitting

her to file an amended complaint in the

Federal District Court, with the advice,

counsel, and participation of an attorney

in good standing of the Bar Association

of the State of California.

Respectfully sated thoes

Petitioner

DATED: November NOV 22 1982 1982

Appendix follows:

1

ono naw s+ e te —

—

oe

R 8 S BSS S AS S K S8 8

IN THE SUPREME COURT OF THE UNITED STATES

WASHINGTON, D. C. 20543

DECLARATION OF SERVICE BY MAIL.

I, MARY VAUGHN AM EMPLOYED IN THE CITY OF

SAN DIEGO, CALIFORNIA d 1119 - 28TH STREET. SAN

DIEGO, CALIFORNIA. I SERVED THE FOLLOWING

DOCUMENTS TO THE OPPOSING COUNSEL:

I COPIES OF PETITION FOR HEARING FOR WRIT

OF CERTIORARI: MARY VAUGHN, PETITIONER.

W.

HINCHY/WITTE LAW FIRM

TO: 888 8 LAW FIRM (FOR — |

CAMINO DE LA SIESTA, ROOM 201

San DIEGO, CALIFORNIA 92108

I THEN SEALED THE ENVELOPE, AND WITH THE

POSTAGE THEREON FULLY PREPAID, DEPOSITED THE

ENVELOPE IN THE UNITED STATES MAIL AT SAN DIEGO,

CALIFORNIA, ON Novemper _ NOV 22 1964999,

I DECLARE UNDER PENALTY OF PERJURY THAT

THE FOREGOING IS TRUE AND CORRECT, EXECUTED

ON Novereer oY * @ SAN DIEGO, CALIFORNIA,

PETITIONER

PRO SE.

21