Appendix — Simpson v. Simpson

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oh BY,

FEB 2 |)

OPE OF Fie &

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1990

SUPREME COURT CASE NO.

ELEANOR S. SIMPSON,

Petitioner

Vv.

DONALD M. SIMPSON, TERRY C. YOUNG,

GILES, HEDRICK & ROBINSON, P.A.;

TANYA PLAUT, LAWSON LAMAR, SHERIFF

OF ORANGE COUNTY, FLORIDA; AND

MINNIE BRIDGES

Respondents

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT

OF APPEAL

VOLUME 2

JAMES R. LAVIGNE, ESQUIRE

5401 S. Kirkman Road, Suite 750

Orlando, Florida 32819

(407) 363-4821

(407) 363-5167 (FAX)

Attorney for Petitioner

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO, FLORIDA

CASE NO. 85-455-CIV-ORL

ELEANOR S. SIMPSON

Plaintifé

vs.

DONALD M. SIMPSON, TERRY C. YOUNG,

GILES, HEDRICK & ROBINSON, P.A.,

et al.

Defendants

ORDER

This matter is before the Court sua

sponte. On June 27, 1985 this Court

entered summary orders granting five

motions to dismiss (docs. 10, ll, 12, 16,

18). On that same date, the Clerk of

Courts closed the file assuming that such

orders constituted a dismissal of the

action filed. Thereafter, on July 17,

1985 the plaintifé filed a Notice of

Appeal.

The Court's orders of June 27, 1985

Gid not specify that amendment of the

complaint was precluded or that granting

the motions constituted dismissal of the

action. Although the plaintiff does not

have aright to amend as a matter of

course after dismissal of the complaint,

Czeremcha v. International Association of

Ma nist rospace Worke AFL-

CIO, 724, F.2€ 1552, 1554 (lith Cir.

1984), the liberal mandate of Federal

Rule of Civil Procedure 15 requires that

leave to amend be "freely given when

Justice so requires.” Fed. R. Civ. P.

1St(a), cf Ped. R. Civ. P. 41(a)(2).

In accordance with Federal Rule of

Procedure 60(a), the Clerk of the Courts

is directed to reopen the case file.

Plaintiffé has twenty days within which to

agend her complaint.

SO ORDERED at Orlando, Florida this 29

day of July, 1985.

/S/ G. KENDALL SHARP

United States District Judge

Copies to:

James R. Lavigne, Esq.

Jeffrey G. Slater, Esq.

Duncan B. Dowling, III, Esq.

William G. Osborne, Esq.

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO. 35-455-CIV-ORL

ELEANOR SIMPSON,

Plaintifé,

Vs.

DONALD M. SIMPSON, TERRY

C. YOUNG, GILES, HEDRICK &

ROBINSON, P.A., TANYA PLAUT,

ROYCE PIPKINS and LAWSON LAMAR,

Sheriff, Orange County, Florida,

Defendants.

ORDER

This is an action by an individual

against a number of defendants for

alleged wrongs arising out of plaintiff's

divorce from her husband of over forty-

two years. The wrongs alleged seem to

fall into two cateaqories. First,

plaintiff alleges that during October of

1983 deputy sheriffs forcibly entered her

home pusuant to a court order for the

purpose of carrying out a prior order

dividing personal property of the husband

and wife, and thereafter, without

probable cause, arrested plaintiff for

resisting arrest. The second alleged

wrong relates to the judicial sale of

plaintiff£'s interest inher home of

twenty-two years resulting from a

judament obtained by a former attorney in

the divorce on a claim for attorney's

fees against plaintiff. Before the Court

preemie are five separate motions to

dismiss the first amended complaint.

Most of the motions raise common issues

and, therefore, rather than discussing

each motion separately, the Court will

address the issues.

A. WHETHER THE FIRST COUNT IN THE COMPLAINT

STATES A CAUSE OF ACTION UNDER 42 U.S.C.

SECTION 1983

The standard in granting a motion to

Gismiss for failure to state a claim is

H-2

well known. "“‘'A] motion to dismiss for

failure to state a claim should not be

Granted unless it aopears to a certainty

that the olaintiff would not be entitled

to recover under any state of vacts which

could be proved in support of his claim."

Cook & Nichol, Inc. v. Plimsoll Club, 451

F.2d 505, 506 (Sth Cir. 1971); see also

Quality Foods de Central America, S.A. v.

Latin American Agribusiness Development

Corporation, 711 F.2d 989, 998 (lith Cir.

1983). This standard will be applied to

the allegations in the first count as

summarized here.

The allegations indicate that

Dlaintiff& Eleanor Simpson was involved in

a state court divorce proceeding against

her husband, defendant Donald Simpson.

She was represented by defendant Tanya

Plaut. During the pendency of the

divorce proceeding, defendant Plaut filed

a motion to withdraw from representing

the olaintiff to which plaintifé

objected. The Court granted defendant

Plaut's motion to withdrav.

The final judgment in the divorce

included a provision that the parties

shall each be awarded an equal interest

in the marital home. The final judgment

was dated may 24, 1983. Before that, on

April 29, 1983, defendant Plaut sued

Dlaintiffé in state court for attorney's

fees. Defendant Plaut was awarded

judament in the amount of $8,013.87 on

January 19, 1984. On March 26, 1984,

defendant Plaut caused a notice of

sheriff's levy to be filed upon

Plaintiff's interest in the marital home,

and the sheriff issued a notice of

sheriff's sale advertising the sale of

the property for April 30, 1984, “between

the legal house of eleven o'clock in the

forenoon and two o'clock in the afternoon

on said day.”

The sale took place at 11:00 a.m. and

the plaintiff's property vas sold to the

Gefendant husband Donald Simpson for the

sum of $8,410.00. The plaintift's

interest in the house vas worth over

$75,000.00. The olaintift£ appeared at

the courthouse prior to 12:00 noon and

offered to redeem her interest by

tendering the amount for which the

property was sold. The plaintiff was not

allowed to redeem her interest.

During the pendency of the divorce

proceeding, and also after the entry of

judgment in the divorce, plaintiff had

made public accusations against the trial

judge, William C. Gridley, that the judge

was biased against her and that he vas

not conducting a fair proceeding. she

filed written complaints and participated

in circulating public petitions calling

for the investigation of Judge Gridley.

Based on these facts, plaintiff

alleges that her husband (defendant

Simpson), her former attorney (defendant

Plaut), the sheriff (defendant Lamar),

and Defendants Terry C. Young, and the

law firm of Giles, Hedrick & Robinson,

P.A. (whose connection with the events

described is not explained at all in the

first count, although it is later alleged

that they are the husband's attorneys),

conspired to deprive plaintiff of her

constitutional rights. The specific

deprivations are not clearly pled, but it

can be inferred that the deprivations

alleged are (1) that the defendants

conspired, along with the trial judge in

the divorce proceeding and other circuit

judges, to intentionally deprive

plaintiff of her interest in her home for

the purpose of punishing plaintiff for

having complained of perceived unfair

treatment by the trail judge in the

divorce proceeding, (2) that the

Dlaintiff was denied her right to equal

protection in that the law in effect at

the time of the sale orohibited the sale

of homestead property belonacing to

married or single persons who were the

head of the household with two or more

persons, but did not extend similar

protection to single women without a

household of two or more persons, and (3)

plaintiff&é was denied a "United States

constitutionally required opportunity to

redeem her property prior to issuance of

a deed by the sheriff."

In assessing the viability of this

Claim, “the initial inguiry must focus on

whether the two essential elements to a

Section 1983 action are present: (1)

whether the conduct complained of vas

committed by a person acting under color

of state lav; and (2) whether this

conduct deprived that person of rights,

privileges, or immunities secured by the

constitution or lavs of the United

States." Paarratt v. Taylor, 451 U.S.

$27, 534 (1981).

lL. Whether the Allegations that Defendants

Acted Under Color of State Lav are

Sufficient

With regard to the first question, the

defendants fall into two categories.

Defendant Lamar is a county sheriff and

his actions are unquestionable taken

under color of state law. The reamining

defendants in the first count, Simpson,

Plaut, Young and Giles, hedrick &

Robinson, P.A., are private persons,

whose actions normally vould not

constitute state action, or held to be

taken under color of state law. Hovever,

_— —

plaintiff has alleged that the defendants

"did conspire and operate together with

the Circuit Court Judges under color of

“Plorida law to defeat the plaintiff of

her homestead property by conspiring,

aiding and abetting each other in an

effort to deprive her of her homestead

Property without due process of jav...."

Complaint, paracraph 12.

It is not well established that a

private person who conspires with a judce

is a state actor for purposes of section

1983. Dennis v. Sparks, 449, U.S. 24

(1980). As stated by the Eleventh

Circuit "(tjhe ‘color of state lav’

component of Section 1983 may be

satisfied by showing that an official act

of a defendant judge was the product of a

corrupt conspiracy involving the judge

and other private parties." Dykes v.

sman, 743 F.2d 1488 (llth Cir. 1984)

rehearing en banc granted 743 F.2d 1505

(llth Cir. 1984). "Bven if the jndge

himself is held to be absolutely immune

from suit ... the private parties who

conspire with the judge act under color

of state law for Section 1983 purposes.”

Id.

The question then is whether plaintiff€

has made allegations sufficient to bring

herself within the holdings of Dennis v.

Sparks and Dykes v. Houseman. Guidance

in answering that question is provided by

Phyllips v. Mashburn, 746 F.2d 782 (llth

Cir. 1984), which affirmed the dismissal

of a pro se prisoner's conplaint alleging

a conspiracy, between a state court jydge

adn the attorneys who represented him

during his criminal prosecution, to

deprive him of his right to sue the

attorneys for legal malpractice. The

complaint made no particularized showing

H-10

—— et A ts

that a comspiracy existed between the

Gefendant lawyers and the judge.

Therefore, the complaint vas not

sufficient. "The naked assertion of a

conspiracy between a state judge and

private defendants without supporting

operative facts vorovides an insufficient

state action nexus for a section 1983

action." Id. at 785. Accord Fullman v.

Graddick, 738 F.2d 553 (llth cir. 1984).

The Phillios court relied on Sooner

Products Co. v. McBride, 708 F.2d 510

(10th Cir. 1983), a case in which the

Court of Appeals affirmed the dismissal

of a claim similar to the one in the

instant case. The Tenth Circuit stated:

When a plaintiff in a Section 1983

action attempts to assert the

necessary “state action" by

implicating state officials or judges

in a conspiracy with private

defendants, mere conclusory

allegations with no supporting factual

averments are insufficient; the

pleadings must specifically present

facts tending to show agreement and

concerted action ... The standard is

H-11

even stricter where the state

officials allegedly involved in the

conspiracy are immune from suit, as

are the state court judges here.

Td. at 512.

In the present case, the amended

complaint is absolutely devoid of facts

tending to show aareement and concerted

action with the judges named in the

complaint. There are no operative

facts - merely a naked assertion that a

conspiracy existed. Moreover, there are

no facts pled which could lead to an

interference that the private defendants

were in a conspiracy with the sheriff or

the judges. Thus, Count I as to the

private defendants Donald M. Simpson,

Terry C. Young, giles, Hedrick &

Robinson, P.A., and Tanya Plaut will be

dismissed. Plaintiff will be granted

leave to amend in order to give her the

opportunity to meet the pleading

requirements set forth above.

H-12

es ee Oe

2. Whether the Allegations that Defendant

Lamar's Conduct Deorived Plaintifێ of

R Privi e or Imm

Secured by the Constitution or Laws

of the United States are Sufficient

Plaintiff alleges that she was treated

unfairly with regard to the disposition

of her home and that this unfair

treatment was motivated by a desire to

punish or retaliate aginst her for

speaking out to complaim about the

proceedings in her divorce. This

allegation must be evaluated under the

liberal federal pleading standare taht

requires denial of the motion to dismiss

unless it appears to a certainty that the

Dlaintiff would not be entitled to

recover when any set of facts which could

be proven in support of her claim. Cook

& Nichol, Inc. v. Plimsoll Club, 451 F.2d

505, 506 (5th Cir. 1971).

In Wilson v. Thompson, 592 F.2d 1375

(Sth cir. 1979), the Court of Appeals

recognized that state action taken in

retaliation against an individual's

exercise of constitutionally protected

rights gives rise to a cause of action

under 42 U.S.C. Section 1983. See also

Mt. nealthv Citv Board of Education v.

Dovle, 429 U.S. 274 (1977); of. Sarnet®

v. Housing Authority of City of Atlanta,

707 F.2d 1571, 1577 (llth Cir. 1983)

(Deprivation of property interest for

improper motive is violation of

substantive due process.) Thus, in the

present case, if the plaintiff can prove

that in fact she was treated unfairly and

that the unfair treatment was taken as

punishment for the exercise of her right

to complain about the performance of the

judge in her divorce, she will have made

out a prima facie case of a violation of

her constitutional rights. Thus, as to

this allegation, defendant Lamar's motion

H-14

will be denied.

In addition, Plaintiff's first claim

states, in paragraph 12, that plaintifé

was discriminated against in that "the

lav in effect at the time of the forced

sale of the plaintiff's homestead,

Cisallowed the forced sale of homestead

of married or single persons who were the

head of household with 2 or more persons

but not for single women who were heads

of their own households...." In the

prayer for relief, plaintiff asks for a

declaratory judaoment that Florida

Constitution, Article X., Section 4, as

applied prior to November 6, 1984,

applies equally to all natural persons.

Evidently then plaintiffé is attacking the

constitutionality of Article X, Section 4

of the Florida Constitution, which

provides for a homestead exemption from

forced sale for debts.

H-15

The constitutional provision, before

its amendment in November of 1984,

applied only to property “owned by the

head of a family.” After its amendment,

it applies to property “owned by a

natural verson.” Plaintif£ seems to be

alleging that the former grant, only to

heads of families, was unconstitutinally

discriminatory. I£ the provisions

discriminated on the basis of gender

onits fact plaintiff£é would, of course,

have stated a claim. E.g. Califano v.

Goldfarb, 430 U.S. 199 (1977). The

provision does not so discriminate, and

to the extent that plaintiff has

attempted to state an independent claim

for denial of equal protection she has

failed to do so. Should plaintiff

attempt to assert such a claim in another

amended complaint, it is suagested that

the claim be stated in a separate count,

Rule 10(b), Fed.R.Civ.P., and that the

nautre of the eaual vorotection violation

be alleged clearly.

Finally, with regard to Count I,

Dlaintiff alleges in paragraph 13 a

denial of her "constitutionally requircd

opportunity to redeem her property prior

to the issuance of a deed by the

sheriff." This allegation does not state

an independent basis for relief.

Plaintiffé has not cited, nor had the

Court located, any authroity in support

of such a claim. In order to eliminate

from the present amended complaint, the

Claims of equal protection and denial of

right to redeem, the Court will order

that paragraph 13 of the complaint be

stricken.

B. WHETHER THE SHERIFF IS PROTECTED FROM

LIABILITY UNDER MONELL V. DEPARTMENT OF

SOCIAL SERVICES, 436 u.s. 658 (1978)

In Monell the Supreme Court held that

municipalities were “person” within the

meaning of section 1983 and thus were not

immune from suit under that section. The

Court also held however that a local

government cannot be held liable under

section 1983 on a respondeat superior

theory. 436 U.S. at 691-695.

In the present case, as far as can be

Gleaned, plaintiff has sued defendant

Sheriff Lamar 43s an individual, rather

than in his official capacity. A suit

against the sheriff in his official

capacity would be tantamount to a suit

against the county, and Monell would

therefore apply. However, that is not

the situation here, and Monell does not

apply.

Nonetheless, it is true that recovery

against the sheriff, even sued as an

individual, cannot be had on the basis of

H-18

vicarious liablity for the unlavful

actions of his deputies. Baskin v.

Parker, 602 F.2d 1205 (Sth cir. 1979).

In the present case the plaintiff is not

seekina relief on the basis of vicarious

liablilty or respondeat superior. He has

alleged a personal involvement by the

sheriff. If plaintiff can prove a

deprivation of constitutional rights and

a personal involvement by the sheriff

causing those constitutional violations,

she can make out a prima facie case

against the sheriff. Wagner v. Bonner,

621 F.2d 675 (Sth cir. 1980).

C. WHETHER THE SHERIFF IS UNSULATED FROM

LIABILITY BY OPERATION OF A STATE STATUTE

The sheriff, in his motion to dismiss,

argues that he "is insulated from

liability for having handled the forced

sale of plaintiff's marital home under

Section 30.30 Fla. Stat." That statute

provides in part that "[{nlo sheriff shall

H-19

be liable in damages to anyone whomsoever

for making a wrongful levy whenevey the

same has been made as required under

subsection (1)."

By virtue of the Supremacy Clause of

Article VI of the Constitution, the

statutory immunity must give way to

conaressional intent to provide a remedy

for violation of the constitution and

laws cf the United states. Genetions of

immunity under section 1983 are federal

questions that are answered with

reference to the intent of Congress. See

e.q. Dennis v. Spvarks, 449 U.S. 24

(1980). Obviously, it was not the intent

of Congress in passing the reconstruction

era civil rights acts to allow states to

immunize their officers from suit in

federal court for alleged violations of

constitutional rights.

D. WHETHER THE COURT HAS PENDANT

JURISDICTION OVER THE STATE LAW CLAIMS

H-20

Plaintiff has vled six state lav

Claims against various of the defendants

for which she reauests the court to take

pendant jurisdiction. The doctrine of

pendant jurisdiction holds that federal

courts have the voower to hear a state

Claim alona with a substantial federal

Claim if the relationshio between the

federal claim and the state claim permits

the conclusion that th eentire action

constitutes but one constitutional case.

United Mine Workers v. Gibbs, 353 U.S.

715 (1966). “The state and federal

Claims must derive from a common nucleus

of operative fact.” Id. at 725. Even

where pendant jurisdiction exists, a

court may still exercise its discretion

against hearing the state claim. Id.

In the present case, the fourth, the

Fifth, the sixth and seventh counts are

related to occurrences separate from the

H-21

one upon which the first count, the only

federal claim, is based. Thus, those

state claims do not derive from a common

nucleus of operative fact as the federal

Claim and pendant jurisdiction does not

exist. Moreover, regarding the fifth

Claim, against defendant Pipokins, relief

is reaquested against a party not named in

the federal claim. See Aldinger v.

Howard, 427 U.S. 1 (1976); Williams v.

Bennett, 689 F.2d 1370, 1379 (llth Cir.

1982) cert.denied 104 S. Ct. 335 (1983).

Accordingly, the fourth through seventh

counts will be dismissed. the dismissals

(except against defendant Pipkins) will

be with leave to amend because some of

the claims make reference to federally

protected rights and there may be some

possibility of pleading one or more

federal claims. The claim against

defendant Pipkins is identical to the

H-22

la a lat Ae Ot - ———

cet at St ale

Claim in the original complaint which was

once dismissed. Therefore, for that

Claim, the dismissal will be without

leave to amend.

The second claim in the amended

complaint is against polaintiff&'s former

husband, defendant Simpson. the claim

does derive from the same occurrence as

the federal claim, the forced sale of

plaintiff's interest in her home.

However, since the first claim was

dismissed against defendant Simpson the

second claim will be dismissed as well,

with leave to amend. Now the Court

exercises its discretion to hear the

second count as a pendant matter will

depend upon plaintiff's ability, if she

chooses to amend, to state a viable

federal claim against defendant Simpson.

The third count is similar. It

relates to the civil action that resulted

in the sale of plaintiff's home. The

Court's willinaness to hear this claim

under the doctrine of pendant

jurisdiction will depend on whether or

not the first count, the civil rights

conspiracy claim, can be repled to state

a Claim.

E. WHETHER THIS ACTION IS BARRED BY

THE DOCTRINE OF COLLATERAL ESTOPPEL

In the circuit court civil action that

resulted in the sale of plaintif£'s home,

Plaut v. Simpson, No. CI 83-4444,

plaintiff filed a motion to vacate

sheriff's sale that was decided against

her. The claimed deficiencies with

regard to the sale that are raised in the

present case arguable were, or at least

could have been, raised in that motion.

In addition, that portion of plaintiff's

case that claims that defendant Plaut had

no right to pursue the fee claim in the

first place could have been raised by way

H-24

of defense or counterclaim prior to the

judgment. Thus, a question arises as to

whether plaintiff should be estopped from

bringing some of the present claims.

- Plorida reaquires mutuality of parties

aS a4 prerequisite to asserting the

G@octrine of ccllateral estoope!.

Truckina Emplovees cf North Jersey

Welfare Fund, Inc. v. Romano, 450 So. 2d

843, 845 (Fla. 1984). Thus, only

defendant Plaut, as the sole defendant

who was a party to the state court

proceeding, can raise the defense of

estoppel.

If it not necessary to determine at

this time whether plaintiff is estopped

on some or all of her claims under the

Florida criteria for applying collateral

estoppel , see Mobil Oil Corporation v.

Shevin, 354 So.2d 372 (Fla. 1977),

because the claims against defendant

H-25

Plaut are beina ctherwise dismissed. If

Dlaintif£t chooses to amend and is

successful in stating a claim against

defendant Plaut the collateral estoppel

and compulsory counterclaim issues may

have to be addressed at that time.

F. CONCLUSION

The Court has considered the following

motions: (1) defendant Lawson Lamar's

motion to dismiss first amended

complaint, 2) defendant Plaut's motion to

dismiss, 3) defendant Pipkin's motion to

dismiss first amended complaint, 4)

defendant Donald M. Simpson's motion to

Gismiss first amended complaint, and 5)

motion to dismiss filed by defendants

Youna and Giles, Hedrick & Robinson, P.A.

(document no. 37).

It is noted that document no. 36

(another motion to dismiss on behalf of

Gefendants Young and Giles, Hedrick &

H-26

Robinson, P.A.) has been withdrawn

through the filing of the document

entitled Response to Motion to Strike and

Memorandum in Support thereof (document

no. 46). Thus, plaintiff's motion to

strike filed on September 17, i985,

(document no. ‘41) is moot.

Upon consideration of the motions, it

is

ORDERED that

1. Defendant Lawson Lamar's motion

to dismiss first amended complaint is

GRANTED IN PART and DENIED IN PART. The

motion is DENIED as to the first count

except for paragraph 13. The motion is

GRANTED as to the fourth count, the only

other Claim against defendant Lamar.

2 Paragraph 13 of the amended

complaint is hereby STRICKEN.

3. The fourth count of the amended

complaint against defendant Lamar is

27

DISMISSED and plaintif£fé is GRANTED leave

to amend within twenty (2) days from the

date of this order.

4. Defendant Pipkins' motion to

dismiss first amended complaint is

GRANTED.

os The amended complaint against

defendant Pipkins is hereby DISMISSED

WITHOUT LEAVE TO AMEND.

6. The motions to Kini of

defendant Plaut, cefendant Simpson, and

defendants Young and Giles, Hedrick &

Robinson, P.A. are GRANTED.

Te The amended complaint against

defendant Plaut, defendant Simpson and

defendants Young and Giles, Hedrick &

Robinson, P.A., is hereby DISMISSED and

plaintiff is GRANTED LEAVE TO AMEND

within twenty (20) days from the date of

this Order.

H-28

8. Plaintifé's motion to strike is

MOOT.

SO ORDERED in Chambers at Orlando,

Florida this 25 day of October, 1985.

/S/ G. KENDALL SHARP

United States District Judge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORALANDO DIVISION

CASE NO. 85-455-CIV-ORL-19

ELEANOR S. SIMPSON,

Plaintiff,

V.

DONALD M. SIMPSON, TERRY

C. YOUNG, GILES, HEDRICK &

ROBINSON, P.A., MINNIE BRIDGES,

and LAWSON LAMAR, as Sheriff

Orange County, Florida,

Defendants.

ORDER

This matter was considered by the

Court on the following motions:

l. Motion to Dismiss Third Amended

Complaint by Defendants Terry Young and

Giles, Hedrick and Robinson, P.A., or in

the Alternative, Motion to Strike

Portions Thereof with Supporting

Memorandum of Law (Doc. Nos. 110 and 111,

filed December 5, 1986) and Memorandum in

Opposition (Doc. No. 117, filed December

18, 1986), Reneved Motion to Dismiss

Third Amended Complaint or in the

Alternative, Motion to Strike Portions

Thereof by Defendants Terry C. Young and

Giles, Hedrick and Roboinson (Doc. No.

142, filed March 14, 1988), Response of

Plaintiff with Memorandum of Law (Doc.

Nos. 145 and 146, filed May 2, 1988),

Motion for Summary Judgment by Defendants

Terry C. Young and Giles, Hedrick &

Robinson (Doc. No. 153, filed March 3l,

1989) and Memorandum in Support of their

Motion for Summary Judgment (Doc. No.

162, filed April 24, 1989) and Memorandum

of Law filed by Plaintiffé in Opposition

to Defendants, Donald M. Simpson's and

Terry C. Young and Giles, Hedrick &

Robinson's Motions for Summary Judgment

(Doc. No. 182, filed June 16,

1989).

2. Motion to Dismiss Third Amended

Complaint with Prejudice by Defendant

Donald M. Simoson with Supporting

Memorandum of Law (Doc. Nos. 112 and 113,

Filed December 8, 1986), Motion of

Defendant Donald M. Simpson for Summary

Judgment and Memorandum in Support

thereof (Doc. Nos. 165 and 166 filed

April 28, 1989), and Memorandum of Lav

filed by Plaintiff Eleanor S. Simpson in

Opposition to Defendants, Donald M.

Simpson's and Terry C. Young and Giles

Hedrick & Robinson's Motions for Summary

Judgment (Doc. No. 182, filed June 16,

1989).

3. Motion for Entry of Judgment Upon

Order of Dismissal as to Defendant Tanya

Plaut by Plaintiff and Memorandum of Law

in Support of Plaintif£'s Motion for

Entry of Judgment (Doc. Nos. 128 and 128,

filed March 2, 1987) and Motion of

I-3

Plaintiff to Reconsider its Order

Granting Defendant Tanys Plaut’s Motion

to Dismiss Plaintiff's Third Amended

Complaint (Doc. No. 115, filed December

18, 1986).

4. Motion to Dismiss Third Amended

Complaint by Defendant Minnie Bridges

with Supporting Memorandum of Law (Doc.

Nos. 119 and 120, filed December 19,

1986) and Memorandum in Opposition (Doc.

No. 123, filed January 16, 1987), Motion

for Summary Judgment on behalf of Minnie

Bridges d/b/a Minnie Bridges Realty with

Memorandum in Support (Doc. No. 156,

Filed April 3, 1989) and Memorandum of

Law filed by Plaintiff in Opposition to

Defendant, Minnie Bridges' Motion for

Summary Judgment (Doc. No. 184, filed

June 19, 1989. a

5. Notice of Filing Affidavit of

Plaintiffé (Doc. No. 177, filed May 25,

1989).

6. Motion to Dismiss Third Amended

complaint by Defendant Lawson Lamar with

Supporting Memorandum (Doc. No. 114,

filed December 8, 1986) and Memorandum in

Opposition (Doc. No. 116, filed December

18, 1986), Motion to Defendant Lawson

Lamar for Summary Judgment (Doc. No. 168,

filed May 1, 1989) and Memorandum of Lav

in Opposition to Motion of Defendant

Lawson Lamar for Summary Judgment (Doc.

No. 181, filed June 16, 1989).

I

DISMISSAL OF CLAIMS AGAINST TANYA PLAUT

WITH PREJUDICE

The Motion of Defendant Tanya Plaut to

Dismiss Third Amended Complaint having

been granted by Judge Sharp (Doc. No.

106, filed December 2, 1986), Plaintiff's

Motion for Entry of Judgment Upon Order

of Dismissal (Doc. No. 128) is GRANTED.

The Motion to Reconsider filed by

) at

Plaintiff (Doc. No. 115) is DENIED.

II

CLAIMS, MADE PURSUANT TO 42 U.S.C.

SECTION 1983

The essential facts upon which the

Plaintiff predicates her Third Amended

Complaint have been recited in a previous

Order of the Court (Doc. No. 47, filed

October 28, 1985). In order to state a

claim in federal court under 42 United

States Code Section 1983, as asserted in

Counts I, II, IV, and V 1 Plaintiff must

allege that Defendants conspired together

(1) under color of state law, (2) to

deprive Plaintiff of a federally

protected right. 42 U.S.C. Section 1983.

It is unclear whether Plaintiff is

asserting in Counts IV and V a violation

of 42 U.S.C. Section 1983 or 42 U.S.C.

Section 1985(3). In an abundance of

caution, therefore, this court will

consider the allegations therein under

both statutes. See infra, at pages

15-18 for a discussion of these claims

under 42 U.S.C. Section 1985(3).

See also Lugar v. Edmundson Oil Co., 457

U.S. 922 (1982); Blum v. Yaretsky, 457

U.S. 991 (1982).

The “under color of state law" factor

requires Plaintiff to demonstrate either

that there was a state actor or that the

pesenitsinns who are orivate individuals

consvired with a state actor. See Dennis

v. Sparks, 449 U.S. 24, 27-29 (1980).

The only state actor who is a Defendant

in this action is Lawson Lamar who was at

the time of the events alleged a county

sheriff. As to the other Defendants,

Plaintiff alleges (1) that they conspired

with Defendant Lamar and various judges

who were involved in both the divorce

préceeding and the events leading to the

sheriff's sale of Plaintiff's one half

interest in her home of 22 years and/or

(2) that the use of Florida's laws on

sheriff's sales provides a sufficient

1-8

nexus with the state to satisfy the state

action requirement under 42 U.S.C.

Section 1983.

A. Consviracy with State Judges

Taking the allegations involving the

judges first, the "color of state iavw"

requirement mav be satisfied by

demonstrating that an official act of a

judge was the result of a conspiracy

between the judge and private actors.

This is true even though the judge may be

immune from liability for official acts.

Dennis Sparks, 449 U.S. 26 (1980);

Phillios v. Mashburn, 746 F.2d 782, 785

(llth Cir. 1984).

In this case, all of Plaintiff's

allegations which rely on the status of a

judge to satisfy the "under color of

state law" requirement depend solely on

conclusory statements that there was a

conspiracy. The law in the Eleventh

1-9

Circuit is that "(t]he naked assertion of

a conspiracy between a state judge and

private defendants without supporting

operative facts provides an insufficient

state action nexus for a section 1983

action." Phillips v. Mashburn, 746 F.2d

782, 785 (llth Cir. 1984). 2

This complaint is essentially a

complaint about the decisions of state

court judges under the guise of a Section

1983 action. Federal courts, however,

The Eleventh Circuit also quoted

with approval Sooner Products Co. v.

McBride, 708 F.2d 510, 512 (10th Cir.

1983) in which the Tenth Circuit said:

When a Plaintiff in a Section 1983

action attempts to assert the necessary

"state action" by implicating state

officials or judges in a conspiracy

with private defendants, mere conclusory

allegations with no supporting factual

averments are insufficient; the pleadings

must specifically present facts tending

to show agreement and concerted action...

The standare is even stricter where the

state officials allegedly involved in

the conspiracy are immune from suit,

as are the state court judges here.

I-10

are not a forum for appealing state court

decisions. Staley v. Ledbetter, 837 F.2d

1016, 1018 (llth Cir. 1988) (affirming

dismissal for lack of subject matter

jurisdiction when Plaintiff sought to

reverse a state court's child custody

determination); Callins v. Collins, 597

F. Suop. 33 (N.D. Ga. 1984); O'Connor v.

O'Connor, 315 F.2d 420 (5th Cir. 1963).

Plaintiff contends that she has tried

to obtain a remedy from the state courts

but has been unsuccessful in obtaining

the relief requested because of

misrepresentations made by Defendants

before the courts. Accepting this

allegation as true, Plaintiff's complaint

becomes one of misuse or abuse of legal

process which is not a basis for a claim

under 42 U.S.C. Section 1983. See e.g.,

McDougald v. Jenson, 786 F.2d 1465, 1488-

89 (llth Cir. 1986) (explaining that it

is the general rule in this Circuit that

a private individual does not act under

color of state law by engaging in

litigation, even in bad faith, unless

that individual is compelled by state lav

to bring suit or is acting under the

authority or pretense of authority of the

state), cert denied, 479 U.S. 860 (1986);

Collins v. Walden, 613 F.Supp. 1306 N.D.

ga. 1985), aff'd without opinion, 784

F.2d 961 (llth Cir. 1986); Dalhberg v.

Becker, 581 F. Supp. 855, 861-63 (N.D.

N.Y.) (moting that challenge of misuse or

abuse of state procedures does not supply

"under color of state law" nexus),

aff'd), 748 F.2d 85 (2d Cir. 1984), cert.

denied, 470 U.S. 1084 (1985).

The Third Amended Complaint therefore

is devoid of allegations of fact showing

an agreement and concerted action among

the Defendants and the judges named in

I-12

the Complaint. There are simply no

operative facts, merely a naked assertion

by the Plaintiff in her pleading, that a

conspiracy existed. As such Plaintiff's

Third Amended Complaint fails to state a

Claim of conspiracy in violation of 42

U.S.C. Section 1983 with state court

judges. 3

Defendants' Motions for Summary

Judgment also indicate that Plaintiff's

allegations of a conspiracy with state

court judges are unsupported by any

evidence. Additionally, Plaintif£t's

Affidavit presents no evidence in support

of this claim. (Doc. No. 177, filed May

25, 1989). Plaintiff asserted in her

deposition that she knows that there is a

conspiracy against her because all the

See also Dewey v. University of New

Hampshire, 694 F. 24 1, 3 (lst Cir.

1982), cert. denied, 461 U.S. 944 (1983).

I-13

judges ruled against her, and Judge

Gridley used a proposed order prepared by

counsel for her former husband instead of

her proposed order. 4

Plaintiff has had sufficient

opportunity to gather evidentiary support

for her claims. This action was

commenced in April of 1985. Discovery

has been extended either by request of

the Plaintiff or by joint motion of the

parties on numerous occasions. 5

Further, Defendants attempted

unsuccessfully to stay Plaintiff's

depositions and to limit the scope of the

Plaintiff also stated in her depo-

sition that she would not be conm-

plaining at this time if the judge

had used her proposed order. Therefore,

the essence of Plaintiff's complaint

is that the judges' decisions did

not favor her.

See Doc. Nos. 77, 85, 92, 99,

and 150.

I-14

depositions.

This court finds that, as required

under Rule 56 of the Federal Rules of

Civil Procedure, Defendants have carried

their burden of demonstrating that there

are not genuing issues of material fact

that necessitate a trial, and Plaintiff

has failed to offer any voroof of a

conspiracy involving a judge. Having

failed to prove an essential element of

her case, summary judament is appropriate

on Plaintiff's claim of a conspiracy

involving state judges in violation of 42

U.S. C. Section 1983. See Cel’otex Corp.

v. Cartrett, 477 U.S. 317 (1986) (noting

that summary judgment is appropriate when

‘the opposing party does not make a

sufficient showing on an essential

element of her case with respect to which

she has the burden of proof). See also

Matsushita v. Zenith Radio Corp., 475

U.S. 574 (1986) (explaining that "[wihen

the moving party has carried its burden

under Rule 56(c), its opponent must do

more than simply show that there is some

metaphysical doubt as to the material

facts"); Adickes v. S.H. Kress & Co., 398

U.S. 144, 161-63 (1970).

B. Conspiracy with Countv Sheriff

In addition to allegations of a

conspiracy involving state court judges,

Plaintiff alleges that various Defendants

conspired with Sheriff Lawson Lamar to

deprive her of a federally protected

right. 6 In Counts I, II, IV and V

In Count One Defendant Lamar is not

named as a party, but Defendants

Simpson, Young, and GHR are alleged

to have caused a deputy sheriff to

(1) seize Plaintiff's property

(Complaint paragraph 14), (2) use

excessive force during Plaintiff's

arrest (Complaint paragraph 16 and

17), (3) imprison Plaintiff falsely

(Complaint paragraph 19), and (4)

arrest Plaintiff without a warrant

which was the result of Defendant

Lamar's insufficient policies and

failure to properly instruct his

I-16

Plaintiff alleges that Defendants Donald

M. Simpson ("Simpson"), Terry C. Young

("Young"), Giles, Hedrick & Robinson,

deputy sheriff (complaint paragraph

22). Plaintiff's assertion that

Defendants Simpson, Young, and GHR

wrongfully caused these actions of

the sheriff's office is unsupported

by evidence. The allegations concern

actions occurring during the forcible

entry of the house which the sheriff's

office undertook pursuant to state

court order. This same court order

also gave the sheriff's office the

authority to arrest anyone who

resisted the entry. Plaintiff

admits that she objected to the

seizure of some of the items.

Complaint paragraph 16; Affidavit

paragraph 14. Moreover, the order

permitting the forcible entry was

the result of Plaintiff's refusal

to comply with a prior state court

order which divided the marital

property. These alleged wrongs

are based on decisions of state

court judges and are not properly

reviewed by this court within the

context of a section 1983 action.

As to the allegations concerning

excessive force, see infra at,

pages 13-14.

P.A. ("GHR"), Plaut, 7 and Bridges

conspired with the sheriff ("Lamar") to

cause deprivations of various

constitutional rights. Assuming for

purposes of the motions under

consideration that Plaintiff has stated a

Claim for conspiracy pursuant to 42

United States Code Section 1983 because

of the allegations of wrong doing by

Lamar, Simpson, Young, GHR, and Bridges,

the unrefuted facts presented on Motions

for Summary Judgment reflect that

Plaintiff cannot support the allegations

she has made.

First, as to Defendant Young and GHR

conspired vith the sheriff's deputies to

deprive her of rights secured by 42

As a result of this Court's denial

of Plaintiff's Motion to Reconsider

the dismissal of Plaut from the Third

Amended Complaint, this court need not

reach the allegations concerning such

Defendant.

I-18

United States Code Section 1983.

Plaintifé's affidavit relies upon a

repetiton of the conclusory allegations

made in the Third Amended Complaint 8 On

Plaintiff defends against the Motions

for Summary Judgment by asserting that

Plaintiff has offered circumstantial

evidence of Defendants’ conspiracy

to deprive Mrs. Simpson of her rights.

A constitutionally infire sheriff's

sale of Mrs. Simpson's home took place

April 30, 1984. The creditor, Tanya

Plaut, held a lien of $8,013.87,

attaching it to Mrs. Simpson's one-half

interest in a $200,000.00 residence.

The sole bidder vas Defendant, Donald

M. Simpson. He vas represented at the

sale by counsel, Defendants, Terry C.

Young and Giles, Hedrick & Robinson.

Defendant, Donald M. Simpson, obtained

Mrs. Simpson's half interest for a bid

of $8,013.87. Defendants, immeidately

following the sheriff's sale, sold the

residence through realtor Defendant,

Minnie Bridges, one day after its

listing and over $60,000.00 below its

market value. Minnie Bridges vas

refereed to Donald Simpson by Terry

Young. Deposition of Donald #.

Simpson, May 1, 1986, p. 10.

Plaintiff's Memorandum of Lav in

Opposition to the Motions of

Defendants Donald M. Simpson, Terry

C. Young, and Gilles, Hedrick &

Robinson for Summary Judgment (Doc.

No. 182, filed June 16, 1989, at pp.

1-19

the other hand, there is clear and

unasbiguous testisgony from Defendant

Young, the only attorney of GHR who vas

involved in any of the events about which

Plaintif® complains, that he did not

consoire vith any member of the sheriff's

department. Plaintiff has not made «4

sufficient shoving to establish the

existence of an essential element of her

case, and therefore, the Motion of Young

and GHR for Sussary Judgment as to Counts

I, It, IV and V of the Third Asended

Complaint is GRANTED.

~ ‘This court finds that the allegations

involving Defendant Sridges are vithout

merit. The unrefuted facts of record

reflect that Defendant Sridges, a real

25-25). Accepting these statements

as true, these statements do not

establish a conspiracy and are not

sufficient to vithstand the Defendants;

Motions for Sussary Judgment

estate broker, sold a house for Defendant

Siaopson. There is no evidence that

Defendant Sridces praticipated ina

conspiracy.

Similarly there is no evidence that

Defendant Lamar parti..pated ina

conspiracy with the other Defendants to

Geny Plaintifé her civil rights in

violation of 42 U.S.C. Section 1983.

Therefore, the Motion of Lawson Lamar for

Summary Judgment on this issue as

asserted in Counts II, IV and V of the

Third Amended Complaint is GRANTED.

Plaintiff also sues Defendant Lamar in

Counts II, IV and V claiming, inter alia,

that he acted under color of state lav

when he authorized an unconstitutionally

infirm judicial sale. 9 Plaintiff first

‘

As noted earlier, Defendant Lamar

1. mot made a defendant in Count !

of the Third Amended Complaint.

I-21

complains that the homescead act is

unconstitutional 10 second that the

notice given to Plaintiff vas inadequate,

and lastly that the price which vas

ultimately obtained for her interest in

the home resulted in a defective judicial

sale because “vhere such inadequacy is

connected vith or shown to result from

any mistake, accident, surprise,

misconduct, fraud, or irregularity, the

judicial sale is defective.” Plaintiff's

Memorandum of Lav in Opposition to

Defendant Lavsom Lamar's Motion for

Summary Judgment (Doc. No. 181, filed

June 16, 1989, at p. 7 (citation

omitted). Plaintiff contends that

"inadequate notice connected vith a

mistake or fraud on part of any

10 See infra at page 17-18 for a

Giscussion of the constitution-

ality of Florida's homestead act.

I-22

participating parties results in a

Gefective sale.* Id. at 7-8.

This court finds that there is no

genuine issue of material fact as to the

notice of the sale and that the notice

published vas not inadequate. The notice

published in the nevspaper announced that

the sale vould take place betveen the

hours of 11:00 a.m. and 2:00 p.m. on @

particular day. [In fact, Plaintiff had

been active, albeit unsuccessful, in

attempting to stop the sale of her one

half interest in the realty. 11

Plaintiff attended the sale, arriving

after 11:00 a.ma. and after the tise the

Plaintiff also complains about a

hearing which Plaintiffé initiated

prior to the sale in which she vas

unsuccessful in blocking the sale

of the property because of the

"animosity to Plaintiff due to

Plaintiff's complaints of unfair

treatment by other judges.”

Coaplaint 41 L.

I-23

realty was sold but prior to 2:00 p.a.

Purther, there are no facts to support

Plaintiff's contention that thee vas

mistake, fraud, misconduct or other

irregularity in such sale. 12 Asa

result of this Court's findings that

there vas no defective notice and sale,

this court GRANTS Defendant Lamar's

12

To the extend that Plaintiff may

be asserting that the actions of

Defendants under the state lavs

provide the requisite nexus vith

state activity to qualify under

the “color of state lavw”* require-

ment under Lugar v. edmonson O11 Co.,

457 U.S. 922 (1982) and

539 F. Supp. 313 (¥.d. Va.

1983), the facts in this case are

dramatically differenct from those

presented in Lugar and Fuller vhere

prejudgment attachments vere attacked —

in section 1983 actions. In this case,

the actions vere all taken pursuant

to state court order after notice

was given and hearings were held.

The state appellate process rather

than the federal court is therefore

the appropriate vehicle to attack

both the proceedings and the actions

which were taken as a result of the

proceedings. *

r-24

Motion for Summary Judgment on this issue

as it is alleced in Counts II, IV and V.

Finally, in Counts IV and Count V

Plaintiff incorporates by reference Count

I which includes the allegation the a

devuty sheriff used excessive force in

arresting Plaintifé during the forcible

entry of Plaintiff's house. Plaintifé

states in her affidavit that during her

arrest she vas assaulted and physically

injured by the deputy sheriff's use of

excessive force which bruised her, caused

her to faint, and also caused other

unspecified injuries. Affidavit,

paragraph 14. DOefendant Simspson asserts

in his deposition that he saw the sesmbers

of the Orange County Sheriff's Office use

very little or no force and that he sav

no physical contact other than the deputy

sheriff taking Plaintiff by the are when

she vas being detained. Deposition of

1-25

Donald M. Simpson at 124-125.

Plaintiff has not sued the deputy

sheriff who affected her arrest. She

has, hovever, named Lavson Lamar, 45

sheriff of Orange County, Florida as

Defendant. Suing Defendant Lamar in his

representative capacity is generally

"only another vay of pleading an action

against an entity of which an officer is

an agent.” Monell v. Department of

Social Servs., 436 U.S. 658, 690, n. 55

(1978).

Plaintiff may not assert a cause of

action against Defendant Lamar for the

actions of a deputy sheriff under the

doctrine of respondeat superior. Id. In

order to recover for the actions of the

deputy sheriff Plaintifé aust demonstrate

that the constitutional deprivation vas

the result of a governsental custos,

policy, ordinance, regulation or decision

1-26

officially adopted and promulgated by the

unit's officers. Id. at 690-91.

Therefore, it is clear that Plaintiff''s

action acainst Defendant Lamar vill be

successful only if a causal link is

established betveen an official policy,

ordinance, practice or custom, express or

implied, and the plaintiff's injury. Byrd

v. Clark, 783 F.24 1002, 1008 (llth Cir,

1986). Plaintif£ alleges in her Third

Amended Complaint that the sheriff

"failed to have sufficient policies and

failed to properly instruct the deputy in

the protection of Plaintif£é's civil

rights." Complaint at paragraph 22.

Defendant Lamar has not, hovever,

addressed this issue.

Therefore, Defendant Lamar's Motion to

Dismiss the Third Amended Complaint on

this issue is DENIED and Defendant shall

respond to these allegations in Counts [IV

I-27

and V within seven (7) days from the date

of this Order. The Court reserves ruling

on the Motion of Defendant Lamar for

Summary Judgment onthis issue as asserted

in Counts IV and V of the Third Amended

Complaint and directs such Defendants to

file a supplement to such Motion, if

approoriate, within seven (7) days from

the date of this Order. Plaintiff shall

respond to this supp..ment within ten (10)

days of Defendant Lamar's supplement.

The Court will take this issue under

advisement on July 31, 1989, at 5:00 p.a.

A hearing will not be held on this

matter.

Therefore, Plaintiff's claims for

violations of 42 U.S.C. Section 1983 in

Counts I, II, IV and V are DISMISSED with

prejudice as to all Defendants on all

issues except the claim against Defendant

Lamar concerning the policy or custom of

I-28

the sheriff's office which is alleged to

have resulted in the deputy sheriff's use

of excessive force on Plaintiffé during

her arrest.

Itt

CLAIMS MADE PURSUANT TO 42 U.S.C.

"SECTION 198513)

In Counts IV, V and VII Plaintifé sues

Defendants Simpson, Young, GHR, Plaut,

Lamar, and Bridges for violations of 42

United States Code Section 1985(3).

To state a cause of action under 42

United States Code Section 1985(3), it is

necessary for a complaint to allege four

elements: (1) a conspiracy (2) to

deprive, directly or indirectly, any

person or class of persons of equal

protection or a privilege or immunity

protected by law; (3) that the

conspirators committed some act in

furtherance of the conspiracy; and (4)

that the plaintiff was "injured in his

1-29

person or proverty” or vas “deprived of

having and exercising any right or

privilege of a citizen of the United

States." Griffin v. Breckenridge, 403

U.S. 88, 103-04 (1971). Under 42 United

States Code Section 1985(3) it is

unnecessary that the conspiracy involve a

state actor. See Griffin v.

Breckenridce, 403 U.S. 88 (1981).

In order to withstand a motion to

dismiss, the Plaintiff must assert at

least minimum factual support for the

existence of a conspiracy. Robinson v.

McCorkle, 462 F.2d lll, 113 (34 Cir.),

cert. denied, 409 U.S. 1042 (1972).

Again, it is necesssary that the

complaint state more than conclusory

allegations of deprivations of

constitutional rights. I[d. at 113.

Plaintifé is not entitled to pursue an

action merely because she believes,

without factual support, that 4

conspiracy existed.

Not only does Plaintiff's Complaint

fail to plead facts to support a

conspiracy in violation of 42 U.S.C.

Section 1985(3), making @ motion to

dismiss aoprooriate, but also there are

no evidentiary facts of record to support

such contention.

A. Count [IV

Plaintif£ conplains about the actions

which took place during the divorce

proceeding as veil as the events which

took place proceeding, during, and after

the sheriff's sale. The record reflects

that Defendants Simpson, Young, and GHR

vere adversaries to Plaintiff ina

contested state court proceeding, and

their actions therein do not constitute

the basis for a claim for damages under

42 United States Code Section 1985(3).

I-31

As to the actions involving the

sheriff's sale, Defendants Simpson,

Younc, and GHR were merely participating

in a sheriff's sale that was the result

of a lien olaced on Plaintiff's interest

in realty by Tanya Plaut and an order of

a state trial court for foreclosure of

such lien. There is no evidence of a

plot to initiate and consummate the sale

in an improper manner, unauthorized by

lav, to deprive Plaintiff of her

property. Participation in a public sale

does not constitute evidence of a

conspiracy in violation of 42 U.S.C.

Section 1985(3).

Defendant Bridges merely sold the

house for Defendant Simpson. The fact

that Defendant Young may have referred

Defendant Simpson to a realtor is not

evidence of a conspiracy between the

lavyer, the lawyer's firm, the client,

I-32

ee ee ee eee

and the realtor. Defendant Bridges owed

no duty to Plaintiff, and there are no

facts alleged in the evidence of record

that she participated in any conspiracy.

Defendant Lamar carried out an order

of a state court judge and executed the

sale pursuant to statute. The statute

itself is not unconstitutional. There

are no facts alleged nor is there

evidence of record to support Plaintiff's

contention that Lamar conspired against

her in violation of 42 U.S.C Section

1985(3). Therefore, the Motions of

Defendant Bridges, Simpson, Young, GHR

and Lamar to Dismiss Count IV for failure

to state a claim under 42 U.S. C. Section

1985(3) are GRANTED. In the alternative,

Summary Judgment is granted in favor of

such Defendants and against Plaintiff on

Count IV.

I-33

Count V, Plaintiff sues Defendants

Simoson, Youna, GHR, Plaut, and Lamar and

complains that she has been denied her

constitutinal right to own and hold

homestead oroperty because “the Florida

constitutional orovison in effect at the

time of the forced sale of her homestead

disallowed the forced sale of homestead

of married or single persons, but not for

Single women who were heads of their own

households....*"13

In pertinent part, the Florida

homestead provision to which Plaintiff is

referring applied, prior to November of

1984, only to property “owned by the head

13

Plaintiff also makes the conclusory

allegation that she vas discriminated

against because of her status as a

former vife of a retired military

officer without factual support for

this contention. (Complaint paragraph 67).

of a family." 14 “Head of family” is

Gefined as applying to those who are

responsible, either legally or morally,

for the welfare of someone else. Edward

Leasong Coro. v. Uhlig, 652 F. Supp. 1409

(S.0. Pla. 1987); Flannery v. Green, 482

$o.2¢ 400 (Fla. 2d DCA 1986), In re

Schoor's Estate, 409 So.2d 487 (Fla. 4th

DCA 1982). This provision does not

Giscriminate on the basis of cender,

which might have stated a claim under 42

U.S.C. Section 1985(3). Califano v.

Goldfarb, 430 U.S. 199 (1977), Holden v.

State of Gardner, 420 So.2d 1082 (Fla.

1982). Nor does the provision

Giscriminate between persons who are

married and persons who are single. Any

person, single or married, who is

This provision vas amended after

the events which are the basis for

this action to apply to property

owned by a “natural person.”

I-35

=

responsible for the welfare of another

and resides on property is entitled to

the constitutional homestead protection.

Plaintiff neither alleges nor contends

that she is responsible for the velfare

of another while she resided on the

subject property. Plaintif£é has not

stated an independent claim for denial of

equal protection under 42 U.S.C. Section

1985(3), and the Motions for Summary

Judgment as to Count V are GRANTED.

C. COUNT VII

Count VII asserts that Defendants

Simpson, Young, GHR, Plaut, Bridges, and

amar breached various duties which

Plaintifé claims they owed to her. For

instance, Plaintifé alleges that

Defendants oved a duty to Plaintiff to

protect and not to acquire a greater

interest in the homestead property of the

Plaintiffé other than what vas avarded to

I-36

Defendant Simsoon by the Final Judgment,

and that Terry Young, her former

husband's attorney oved her a duty not to

take unfair advantage of her distressed

situation.

The wrongs about which Plaintiff

complaints arise out of state court

litigation in which Plaintiff vas an

adverse party to Defendant Simpson, who

vas represented by Young of GHR. The

Civil Rights Statutes are not intended to

make federal courts appellate courts for

review of actions of the state trial

courts. Further, Plaintiff has alleged

no facts, and none appear of record, to

support her contention that any of these

Defendants vere part of a conspiracy to

Geprive Plaintiff of a privilege or

immunity secured to her by the United

States Constitution.

I-37

Additionally, it appears from the

unrefuted facts of record that Defendant

Minnie Bridges did not have a fiduciary

duty to Plaintiff, such Defendant being a

real estate broker who listed property

for sale after Defendant Young had

recommended her to his client Defendant

Simoson.

Finally, Count VII fails to allege any

facts or state a cause of action against

Defendant Lavson Lamar.

Therefore, the Motions for Summary

Judgment in favor of Defendants Young,

GHR, Simpson, Lamar, and Bridges as to

Count VII are GRANTED.

Iv

CONSTITUTIONALITY OF FLORIDA STATUTE 56.22

In Count III, Plaintif££ asserts that

the estate statute pursuant to which the

forced sale of Plaintiff’s home vas

I-38

conducted, Florida Statute Section 56.22

(1983), is an unconstitutional

deprivation of Plaintiff's right to

procedural due process because it is void

for vagueness due to its provision that

the “sale shall take place between the

hours of 11:00 a.m. and 2:00 p.a."

Plaintifé alleges in the Count that

Defendants Simpson, Young, GHR, Lamar,

Plaut, and Bridges operated under an

unconstitutional statute to deprive

Plaintifé of her property. Plaintifé

Claims that the statute did not give her

notice of the exact time of sale, and

therefore the statute is

unconstitutional. Plaintiff does not

Claim that she did not receive notice of

the sale or that the sale occurred

outside the time specified. Plaintiffé

Simply alleges that the statute is

unconstitutional and the sale void

I-39

because she vas not given a

particularized time betveen the hours of

11:00 a.m. and 2:00 p.m. for the sale.

From the unrefuted facts of record,

the sale vas conducted pursuant to a lien

placed on Plaintiff's share of the house

by her former attorney, Ms. Plaut. Young

testified that he heard of the sale when

his secretary saw the notice in the

nevspaper. He called the sheriff's

office to ascertain the procedure for the

sale. Young, GHR, Simpson, and Bridges

vere not involved in the action which led

to the lien being placed on the house.

Defendant Bridges had no connection vith

the Sheriff's sale. Plaintiff has no

evidence to support her allegation that

there vas a conspiracy regarding the sale

of the house among Defendant Bridges and

the other Defendants named in this Count.

defendant Simpson merely took advantage

I-40

i ll AE ll —— a i, Eats alt

of the orocedure orovided by lav and

aoveared at the designated time to place

a bid on the oroperty. Plaintiff had the

same opportunity to appear at the

Gesignated time to bid on the property.

Defendant Lamar merely conducted the sale

pursuant to law and in accordance vith a

state court order. There is no evidence

of any inappropriate connection betveen

the parties. The Court finds no reason

to set aside the sale or declare that the

statute is unconstitutional. Therefore,

Defendants’ Motion for Summary Judgment

on Count III are GRANTED.

Vv

CLAIM MADE PURSUANT TO 18 U.S.C. 2520

In Count IX Plaintifé alleges that in

violation of 18 U.S.C. Section 2520

Defendant Simpson, Young, and GHR placed

an electronic eavesdropping device on her

personal telephone for a period of

I-41

twenty-four months and that Plaintif€

discovered the device during the month of

March, 1984.

While the allegations of Count IX are

sufficient to withstand a motion to

dismiss, there is no evidence of record

to support Plaintiff's contention that

Defendants Youna and GHR placed such

device on her telephone. Plaintiff's

affidavit (Doc. No. 176) is silent on

this claim. Defendant —e his

deposition directly denies any knowledce

of or involvement in wiretapping or

electronic eavesdropping on Plaintiff's

telephone by Defendant Simpson (Doc. No.

162, p.51). Plaintiff in her deposition

speculated that Tim Simpson put a bug on

her telephone because he had possession

of the house for five months while she

was gone, and “bacause he is the only one

who would dream up something like that."

1-42

(Doc. No. 182, at p. 52). Plaintiff did

not respond to a request that she turn

the wiretap over to Defendants, stating

in her deposition that she sent it to

Washington. She further testified that a

neiahbor discovered the wiretav, but the

record contains no statement by the

neighbor.

Therefore, Plaintiff has failed to

carry her burden to come forward with

competent evidence in support of her

Claim that Defendants GHR and Young

violated 18 U.S.C. Section 2520. Summary

Judgment is GRANTED in favor of such

Defendants and against Plaintiff on Count

IX of the Third Amended Complaint.

Defendant Simpson in his Motion for

Summary Judgment does not clearly address

Count IX. Further there are no

evidentiary facts of record presented by

Defendant Simpson refuting Plaintiff's

I-43

Claim that he placed a wiretap on her

telephone in violation of 18 U.S.C.

Section 2520. Additionally, the Court

cannot ascertain if Tim Simpson, referred

to by Plaintiff in her deposition, and

Defendant Donald Simpson's Motion to

Disaiss this Count of the Third Amended

Complaint is DENIED, and such Defendant

shall file his response to this Count

within seven (7) days from the date of

this Order. The Court reserves ruling on

the Motion of Defendant Simpson for

Summary Judgment as to Count IX of the

Third Amended Complaint and directs such

Defendant to file a supplement to such

Motion, if appropriate, within seven (7)

days from the date of this order.

Plaintiff shall respond to such

supplement vithin ten (10) days of the

filing of such supplement. No hearing

will be held on such supplemented motion

I-44

for summary judament, and the

supplemented motion of Defendant Simpson

for summary judament will be taken under

advisement by the Court at 5:00 p.m. on

July 31, 1989.

VI

A. COUNT VI

In Count VI Plaintiff seeks a

declaratory judgement under the doctrine

of pendent jurisdiction and asserts that

the profits from the sale of the house

should be held in a resulting or

constructive trust because the final

judgment in the state court divorce

proceeding avarded her a half interest in

the house. Additionally, Plaintiff

Claims that Defendant Simpson purchased

the house with her money. Although the

allegations in this Count reference

Defendants Young and GHR, Plaintiff names

only Mr. Simpson as a Defendant in this

T-45

Count.

Plaintiff is essentially contending

that her former husband improperly

purchased her one half interest in the

house at the sheriff's sale, sold the

house, and made a profit from it.

The record is absolutely devoid of any

evidence in support of the claim that the

money from the sale of Plaintif££é's half

interest in the house should be held ina

resulting or constructive trust for her.

Additionally, Plaintiffé's former husband,

his attorney, and his attorney's law firm

do not ove Plaintiff the duties she

alleges in this Count as they vere

involved as adversaries in a state court

legal proceeding. Therefore, having

ascertained no facts of record to support

Plaintiff's contentions in Count VI,

Defendants Simpson's Motion for Summary

I-46

Judqement is GRANTED. 15 Count VI of the

Third Amended Complaint is DISMISSED.

B. Count VIII

In Count VIII, Plaintiff seeks the

pendent jurisdiction of this Court and

sues Defendants Simpson, Younc, GHR, and

Lamar for the false arrest of Plaintif¢

on or about October 6, 1983.

In exercising the Court's

discretionary jurisdiction over this

15

Having dismissed the allegations

which attacked Defendant Simpson's

purchase and sale of the house

because of the claimed invalidity

of the homestead exemption in the

Florida Constitution, having found

that the sheriff's sale vas not

defective, and having determined

that Plaintiff's recourse for alleged

vrongs occurring during the pendency

of the state court proceedings lies

within the jurisdiction of the state

appellate courts, this Court has con-

sidered declining to exercise its

pendent jurisdiction over Count VI.

United Mineworkers of America v. Gibbs

383 U.S. 715, 725 (1966). In the

interest of judicial enconomy, the

Court has determined this clain.

1-47

claim, the Court concludes that Summary

Judgment is aoprooriate as to Count VIII.

The unrefuted facts of record show that

the sheriff's office acted pursuant to a

state court order which granted

permission for forcible entry of

Plaintiff's house during recovery of

Defendant Simpson's personal property.

This order vas granted after a hearing

which Plaintiff attended. The court

order gave the sheriff the authority to

arrest any person who interfered vith the

execution of the order.

Plaintiff's Third Amended Complaint

states that she protested the taking of

some items of personal property and vas

then arrested. Complaint paragraph 16.

Plaintiff's affidavit acknoviedges that

she objected to the seizure of the items

Guring the entry. (Doc. No. 177, filed

May 25, 1989 at paragraph 14.) Purther,

1-48

Plaintif? stated in her deposition that

she resisted arrest. Therefore, there is

mo evidence of record to show that

Plaintif® vas falsely arrested. Ther

sherifft*s deputy was executing a state

court order when he vent to the house and

ultimately arrested Plaintiff on that

occasion. Defendants Younc and Siapson

vere merely pursuing legal means as

adversaries to Plaintiff in a legal

proceeding to recover Defendant Simpson's

property. In essence, Plaintiffé is

complaining about state court orders

which divided the marital estate and gave

Defendant Simpson the sient and means to

recover his property. 16 Based on the

16

Tt is unclear vhether this count

is being asserted solely as a pendent

claim or as a claim pursuant to 42

U.S.C. 1983. The Court finds that

the unrefuted facts of record demon-

strate that summary judament is

appropriate on Count VIII regardless

of whether this claim is considered

as @ claim pursuant to 42 U.S.C.

Section 1983 or as a pendent claia

1-49

unrefuted facts of record, Summary

Judement as to Count VIII is GRANTED in

favor of Defendants.

CONCLUSION

The Third Amended Complaint is

DISMISSED WITH PREJUDICE as to all counts

and as to all parties except the

allegations concerning the deputy

sheriff's use of excessive force during

Plaintiff's arrest in Counts IV and V and

the allegations as to Defendant Sisapson

in Count IX. The Court reserves ruling

on Defendant Simpson's Motion for Summary

Judgment on Count IX of the Third Amended

Complaint and Defendant Lamar's Motion

for Summary Judgment on Counts IV and V

of the Third Amended Complaint in

accordance vith his order.

DONE AND ORDERED in Chambers at

for false arrest.

Orlando, Florida this 10th of July, 1989.

/$/ PATRICIA C. FAWSETT

UNITED STATES DISTRICT JUDGE

Copies to:

All Counsel of Record

in 85-455-CIV-ORL-19

I-51

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO: 985-455-Civ-Orl

I certify the foregoing to be a true and

correct copy of the original.

DONALD M. CINNAMOND, Clerk

United States District Court

Middle District of Florida

By: __/S/ Deputy Clerk

ELEANOR S. SIMPSON

-V-

DONALD MM. SIMPSON, TERRY C. YOUNG,

GILES, HEDRICH & ROBINSON, P.A.

TANYA PLAUT, MINNIE BRIDGES AND

LAWSON LAMAR, SHERIFF, ORANGE CO. FL.

DEFENDANTS _ /

NOTICE OF APPEAL OF A FINAL

SUMMARY JUDGEMENT

COMES NOW Eleanor S. Simpson in Proper

Person and timely files this her Notice

of Appeal of the Court Order dated July

10, 1989 by the Honorable Judge Patricia

Fawsett of the Middle District of

Florida, UNITED STATES DISTRICT COURT,

Orlando Division.

Judge Fawsett dismissed with Prejudice

J-1

to all counts and to all parties the

Third Amended Complaint originally

scheduled to be tried in its entirity

with a Trial by Jury during the August

term, 1989. This dismissal was dated

July 10, 19869. Pre-trial was scheduled

for July 11, 1989 in the Office of

Duncan Dowling, Attorney. My attorney,

Judge Douglas Lambeth and his legal

assistant flew from Ft. Lauderdale to

Orlando, FL. for this Pre-Trial

Compliance, July 11, 19869. When he

arrived in Orlando he was informed that

Judge Fawsett had already:

“dismissed the Third Amended Complaint

with Prejudice as to all counts and as

to all parties except the allegations

concerning the deputy sheriff’s use of

excessive force during plaintiff's

arrest in Counts 4 & 3S and the

@llegations as to defendant Simpson in

Count 93. The court reserved ruling on

Defendant Simpson’s Motion for Summary

Judgement on Count 9 of the Third

Amended complaint and Defendant Lamar’s

Motion for Summary Judgement on Counts 4

& S of the Third Amended Complaint.

No hearing was to be held. The Court

will take the motion for summary

J-2

judgement under advisement on July 3i,

19869 at 5:00pe s/Judge Fawsett 7-10-89

EOD 07-19-89, Copies to Counsel.”

The docket sheets at the U.S. District

Court are all stamped with Appeal --Jury

Trial as the result of an Order dated

"7-29-85 NR 28 Order In accordance with

Federal PFPule of Procedure 60 (a) the

Clerk of Courts is directed to RE-OPEN

the case file. Plaintiff has (20) days

within which to amend her complaint.

Judge Sharp 87-29-85 EOD 7-29-85 etc.

cert. copy to USCA.”.

Following this Re-Open order from the

lith District Court of Appeals Mr. James

Lavigne subsequently filed ist Amended

Complaint, 2nd Amended Complaint and

finally Third Amended complaint compying

with all the directions of the then

presiding Judge Kendall Sharp.

Judge Fawsett has dismissed this Third

amended Complaint previously set for

Trial with No Hearings what so ever.

Reverable Error has been made & there

does exist a conflict if interest since

the following are known facts in Case

J-3

Fed #85-455:

1.

When Case Fed #85-455, April 16,

1985 started with COMPLAINT:

Violation of Civil Rights-that the

Defendants have conspired to defeat

the Plaintiff of her Homestead

Property without Due Process,

Defendant Lawson Lamar was Sheriff

of Orange County, Fla. but since the

election of 1988, Lawson Lamar is

presently State Attorney.

Defendant, Terry Young, Attorney is

the Nephew of Judge George Young,

Chief Judge of U.S. Middle District

of Fla. Mr. Young coincidentally

was my ex-husbands Attorney where I

was scheduled to be the Landmark

case in the State of Fla. on Federal

Law 97-252. As the result of a Per

J-4

3.

All

Curiam Affirmance at the Sth

District Court of Appeals Jan. 29,

1984, my Writ of Certiorari is on

file in this case #85-455 this was

taken to the Supreme Court of the

United States by Mr. Robert Shapiro

from the Tampa, Fla. area. They

dismissed my writ of certiorari

there stating it was up to the State

of Florida regarding dividing a

military pension and Martin Company

Pension as Equitable Distribution of

Marital Assets.

Minnie Bridges, Realtor sold my

Homestead while it was at Sth D.C.A.

Case #Civ. 8681-12127. She is the

sister of Judge Cecil Brown, 9th

Circuit Court, Orlando, Fla.

parties on the attached sheet are

called upom to take Notice. I hereby

J-5

certify that a copy of the foregoing has

been furnished this date by mail

delivery to the attached sheet.

I further certify that this Notice of

Appeal is being hand delivered to the

United States Federal Court-Middle

District on the 4th day of August, 1989.

2$/ Eleanor S$. Siseson

Eleanor S. Simpson-Pro Se

10751 William Tell Dr.

Orlando, FL 328621

Telephone #407-351-2018

Please note: Eleanor S. Simpson is

acting Pro Se for Appeal purposes.

Judge Lambeth is still her Attorney of

Record.

J-6

FILED AUG 7, 1989

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ELEANOR S. SIMPSON

Plaintiff

Vv.

DONALD M. SIMPSON, et al.

Defendants

ORDER

This case comes before the Court on

the following Motions:

1. Defendant Simpson's Supplemental

Motion for Summary Judgment (doc. No.

197, filed July 14, 2989), Memorandua in

support of Supplemental Motion for

Summary Judgment (Doc No. 198, filed July

14, 1989), and Notice of Filing Affidavit

in Support of the Supplemental Motion for

Summary Judgment (doc. No. 200, filled

July 14, 1989), and Plaintiff's Response

to Defendant Simoson's Supplemental

Motion for Summary Judament.

2 Defendant Lamar's Supplement to

Motion for summary Judament (Doc. No.

201, filed July 17, 1989), Memorandum of

Law attached thereto, and Plaintiff's

Response to Defendant Lamar's

Supplemental Motion for Summary Judoment

(doc. No. 208, filed July 27, 1989).

3 Defendant Simpson's Motion for

Extension of Time to file Pre-Trial

Compliance (doc. No. 179, filed May 26,

1989), and Plaintiff's Motion for

Extension of Time to File Unilateral

Pretrail Cataloaque (doc. No. 186, filed

June 21, 1989). These Motions are

GRANTED. The remaining parties are

hereby ORDERED to file their pretrial

stipulation no later than august 8, 1989,

at 9:00 a.m. Failure to comply with this

order may result in dismissal of this

action.

4. Plaintiff's Motion to accept late

filing of memorandum in opposition to

Defendant Minnie Bridges’ Motion for

Summary Judgment (doc. No. 187, filed

June 21, 1989), and Defendant Minnie

Bridges’ Objection to Plaintiff's Motion

to Accept Late Filing of her Memorandum

of Law in Opposition to Defendant Minnie

Bridaes’ Motion for Summary Judgment

(doc. No. 193, filed June 30, 1989).

This Motion is moot as a result of the

Court's order of July 10, 1989, and it is

therefore DENIED. The objection is also

moot.

In his Supplemental Motion Defendant

Simpson addresses Plaintiff's allegation

in Count IX of her third amended

complaint that he placed an electronic

eavesdropping device on Plaintiff's

telephone thereby violating 18 U.S.C.

Section 2520. Defendant Simpson denies

this allegation in his affidavit and

asserts that even if he did wiretap the

telephone in Plaintiff's house, it vas

not a violation of 18 U.S.C. Section 2520

because this statute does not apply to

events that occur in the marital estate

and the alleged viretapping took place in

the marital estate by virtue of the fact

that it occurred prior to the dissolution

of his marriage to plaintif£é. Plaintifé

responds that the eavesdropping occurred

after the marriage vas dissolved and

Submits the affidavit of Mary Cathering

McCarkle Pruit to support her allegations

that there vas an electronic

eavesdropping device on her telephone and

that Defendant Simpson vas responsible

for it. As a result of this conflicting

evidence, it appears that there is a

genuine question of material fact and

Defendant Simpson's Supplemental Motion

‘Doc. “io. 197) is DENIED.

DEFENDANT LAMAR'S MOTION

In his supplement to his motion for

Summary ‘udgment, defendant Lamar seeks

Summary judgment on Counts, IV and V of

Plaintifé's third amended complaint which

allege that a deputy sheriff used

excessive force during Plaintiff's

arrest. This court has previously

Getermined (see Doc. No.-194, filed on

July 10, 1989, at 14) that in order to

state a cause of action against Defendant

Lamar for the actions of a deputy sherifé

Plaintiff is required to demonstrate that

the constitutional deprivation was the

result of a governmental custom, policy,

ordinance, regulation or decision

officially adopted and promulgated by the

officers. See, e.g., Monell v. New York

City Dep't of Social Services, 436 U.S.

658, 690-92 (1978); Srown v. city of

Cleviston, 348 F.2d 1534, 1537 (llth Cir.

1988); Byrd v. Clark, 783 F.2d 1002, 1008

(llth Cir. 1986).

Defendant Lamar asserts that summary

judoment is warranted because the

affidavit submitted in support of his

supplement to his Motion for cummary

judament indicate that the

deputy sheriff who arrested Plaintiff

during the forcible entry of Plaintiff’s

home did not use excessive force and

that any alleged use of excessive force

during the arrest was not pursuant to a

custom, policy, ordinanace or decision

adopted and promulgated by the office of

the Sheriff. In response to Defendant

Lamar’s Supplement, Plaintiff has filed

an affidavit of a person who was present

during the arrest, Mary Cather ine

McCarkle Pruitt, which describes the

deputy sheriff's excessive use of

force. Plaintiff assert that as a

result of this affidavit there is

conflictiong evidence concerning the

deputy sheriff’s behavior which creates

a genuine issue of material fact

sufficient to withstand Defendant

Lamar’s Motion for Summary Judgment.

Plaintiff, however,

K-7

“concedes that she has no evidence that

(the deputy sheriff's alleged use of

excessive force) resulted from a policy

of the Sheriff of Orange County....”

Plaintiff’s Response to Defendant,

Lawson Lamar’s Supplemental Motion for

Summary Judgment (Doc. No. 208, filed

July 27, 1989), at 2.

The United States Supreme Court has

determined that ones judgment is

appropriate against a party who fails to

make a showing sufficient to establish

the existence of an element essential to

the party’s case, and on which that

party will bear the burden of proof at

trial. Celotex Corp, v. Catrett, 477

U.S. 317, 323 (1966). the Court has

further explained that “the mere

existence of aome 84s alleged factual

dispute between the parties will not

defeat an otherwise

K-8

properly supported motion for summary

judgment; the requirement is that there

be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986) (emphasis in

original). Therefore, the fact that

there may be a dispute over whether

excessive force was used is not

sufficient to withstand a motion for

summar y judgment when there is no

evidence to establish the existence to

her case, i.e., that the alleged

excessive use of force was the result of

an official policy, statute, ordinance,

regulation, custom, or usage. See Brown

v¥. City of Clewiston, 848 F.sd 1534,

13537 C1ith Cir. 1988). therefore,

Defendant Lamar’s Supplemental Motion

for Summary Judgment is hereby GRANTED.

The allegations in Counts IV and Vof

Plaintiff’s Third Amended Complaint

K-9

concerning Defendant Lamar’s liabilty

for a deputy sheriff’s use of excessive

force during the arrest of Plaintiff are

DISMISSED with prejudice.

DONE AND ORDERED in Chambers at

Orlando, Florida, this 4th day of

August, 1989.

PATRICIA C. FAWSETT

UNITED STATES DISTRICT

JUDGE

Copies to:

All Counsel of Record

in 85-455-CIV-ORL-19

K-10

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CASE NO: 85-455-Civ-Orl-19

ELEANOR S. SIMPSON,

PLAINTIFF,

Y=

DONALD M. SIMPSON, TERRY C. YOUNG,

GILES, HEDRICK & ROBINSON, P.A.

TANYA PLAUT, MINNIE BRIDGES &

LAWSON LAMAR, SHERIFF, ORANGE CO. FLA.

—_ DEFENDANTS /

NOTICE OF APPEAL OF A

FINAL JUDGEMENT

Comes Now Eleanor S. Simpson in Proper

Person and timely files this her Notice

of Appeal of the Court Order dated July

10, 1989 and Order dated Aug. 7, 1989

#211 (Docket -Fed. ) by the Honorable

Patricia Fawsett of the Middle District

of Florida, Orlando Div.

Order:

Defendant Lamar’s Supplemental

Motion for Summary Judgement

(Docu #201) is Granted.

L-1

The allegations of Counts 4 & 5

of Plaintiff’s 3rd Amended

Complaint concerning Lamar’s

liability for a deputy

sheriff’s use of excessive

force during the arrest of

Plaintiff are DISMISSED WITH

PREJUDICE. s/Judge Fawrett

8-08-89 eod 08-07-89

Plaintiff has again been denied the

right to a Trial by Jury in Federal

Court where the deprivation of real &

personal property was taken from the

Plaintiff as a result of

unconstitutional official policy of

Sheriff Lawson Lamars Sheriff’s Dept. of

Orance County, Florida without Due

Process of Law and without the Right of

Redemption. Conspiracy with State

Judges & Attorneys “under color of State

L-2

Law" was to be made factual evidence

with all the Discovery Depositions %&

Exhibits taken for the past four years

at the time of the Trial by Jury. 42

U.S.C. 1983 & 42 U.S.C. 1985.

All parties on the attached sheet are

called upon to take Notice. I hereby

certify that a copy of the foregoing has

been furnished this date by mail

delivery to the attached sheet.

I further certify that this Notice Of

Appeal is being hand delivered to the

United States Federal Court-Middle

District on the 3ist day of August, 1989

I certify the foregoing to be a true and

correct copy of the original.

DONALD M. CINNAMOND, Clerk

United States District Court

Middle District of Florida

By: _/S/_ Deputy Clerk

Eleanor S. Simpson, Pro Se

10751 William Tell Dr.

Orlando, FL. 32821

Telephone #407-351-2018

L-3

EXCERPTS FROM THE

REPORT OF

THE FLORIDA SUPREME COURT

GENDER BIAS STUDY COMMISSION

1990

or

EXECUTIVE SUMMARY

REPORT OF

THE FLORIDA SUPREME COURT

GENDER BIAS STUDY COMMISSION

Copyright 1990, The Florida Supreme Court

M-1

I. INTRODUCTION

The Commission found during its two

years of hearings and study that gender

bias--discrimination based solely on

one’s sex--is a reality for far too many

people involved in the legal system.

And invariably, those who regard gender

bias as an illusion have never suffered

its affects. Indeed, the overwhelming

weigh of evidence and research gathered

by the Commission supports only one

possible conclusion: Although some may

ignore its existence, gender bias

permeates Florida’s legal system today.

Certainly the Commission is aware that

the practice of law often only reflects

our society’s larger culture. Gender

bias surely did not originate with

lawyers alone. Nevertheless, gender

bias is practiced to a disturbing degree

by members of this state’s legal

profession, often in forms that have

M-2

become highly institutionalized. The

refusal of some lawyers to acknowledge

this fact is one of the primary

mechanisms by which gender bias is

perpetuated.

From its inception, the Commission’s

charge was to document the true scope

of ~ this problem and propose solutions.

We were not asked simply to determine if

gender bias exists in Florida, because

this question already had been resolved

by a detailed monograph published by

Charlene Carres and the Florida State

University Policy Studies Clinic. After

reviewing this monograph, the Chief

Justice of Florida and his colleagues on

the Florida Supreme Court concluded that

gender does infact exist in the state's

legal system. The Court then created

the Commission and ordered it "to

determine in what areas of our legal

M-3

society bias vased on gender exists, and

recommend measures to correct, or at

least minimize the effect of, any such

bias.”

This Report fulfills the

Commission’s mandate. The findings and

recommedations made by the Commission

are based upon public hearings, regional

meetings, case studies, scholarly

research and a variety of empirical

studies.

The Commission under took a

multidisciplinary approach to the

investigation and preparation of its

Report. It held public hearings and

regional meetings around the State,

receiving testimony and reports from

legislators, professionals in a wide

array of fields, and all others who

wished to speak on the subject of gender

bias. Regional meetings were informal

M-4

discussions primarily with women lawyers

and other interested residents of

communities around the State.

In addition to the hearings, the

Commission undertook extensive research.

Our studies included five major surveys

of member of The Florida Bar, Florida

judges, members of the Florida

Association for Women Lawyers, and

students in Florida law schools. Among

the topics addressed by these surveys

were Judicial attitudes, equitable

distribution and disparate treatment.

Other supplemental studies examined

adult arrest and sentencing patterns,

the juvenile Justice system,

prostitution, and the treatment of male

and female court personnel, including

assistant state attorneys and assistant

public defenders. We also conducted a

preliminary. study on facitlities and

M-S

programs for men and women incarcerated

in Florida’s jails.

The Commission heard ~ detailed

presentations on child support

enforcement by the National Conference

of State Legislators and on domestic

violence by the Dade County Domestic

Violence Program. We conducted an

analysis of all reported family law

decisions from January through June 1989

and completed a review of published and

unpublished scholarly works in all areas

of the law relevant to this Report.

The full Commission discussed each

finding and recommendation before its

adoption. Not every Commissioner agreed

with every finding and recommendation.

Nevertheless, the Report in its totality

represents the consensus of the entire

Commission.

M-6

This Executive Summary reproduces

these findings and recommendations and

summarizes the discussion that accompany

them. The topics covered here are

gender bias in the dissolution of

marriage, custody and child support;

gender bias in criminal justice; and

gender bias in the legal profession.

The section on “Gender Bias in

Criminal Justice" addresses Domestic

violence, sexual battery, crime and

incarceration, prostitution and juvenile

justice.

Finally, the section on "Gender Bias

in the Legal Profession” addresses the

courthouse enviroment, professional

opportunities, the law firm enviroment,

legal education and gender bias in usage

of language.

II. GENDER BIAS IN THE DISSOLUTION

OF MARRIAGE, CUSTODY AND CHILD SUPPORT

Women and children experience life

after divorce far differently than men.

While all family members suffer the

trauma of divorce, only the women and

children’s pain is compounded by being

dGiprived of their economic well-being.

This is the harsh reat ity of most

divorce in Florida today. Although

Florida’s “no-fault” divorce statute is

written in gender-neutral language, the

Commission found that judicial decisions

based upon this language are

gender -discriminatory in application.

The reason largely is an unrealistic

assumption by judges that men an women

are economic equals in present society.

The Commission also determined that

men customarily retain more than half of

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the assets of the marriage and leave

with an enhanced earning capacity. The

remaining family members, however, are

left with less than half of the marital

assets and a severely diminished and

declining earning capacity.

The Commission has concluded that

Florida’s judiciary minimizes the time,

energy, and lost opportunities involved

in being a homemaker and primary

caretaker of children. Judges generally

are reluctant to acknowledge that these

contributions are a genuine partnership

asset of the marriage.

Moreover, the Commission found that

Florida’s judiciary denies women the

economic resources to retain competent

legal representation. As a result,

women are critically disadvataged in

enforcing their legal right alimony,

equitable - distribution of mar ital

assets, and child support.

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2.

3.

Findings

a. Economics of Divorce

Men customarily retain more than

half of the assets of the marriage

and leave with anenhanced earning

capacity. The remaning family

members are left with less than half

of the marital assets and a severely

dimished and declining earning

capacity.

A homemaker’s contributions of time

and energy, as well as the

opportunities she has forgone, often

are minimized by Florida’s courts.

Many judges are especially reluctant

to acknowledge that these

contributions are a genuine resource

of a marriage.

Post-divorce families headed by

women are the fastest growing

segment of those living in poverty.

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Older women whose marriages end in

divorce are most likely either to

have abondoned their own aspirations

or to have devoted their lives to

furthering their husbands careers.

They are not adequately compensated

by application of the present system

of alimony and equitable

distribution of marital assets.

b. Access to Justice

Women who lack means are routinely

denied their statutory right retain

competent legal representation.

Without competent counsel, women are

critically disadvataged in enforcing

their right to alimony, equitable

distribution of marital assets and

child support.

Many lawyers will not represent

woman in divorce cases because women

generally have fewer economic

M—-11

3.

resources and therefore cannot

afford the fees.

Florida’s public legal aid system is

not a realistic alternative to

private representation. There are

not enoug legal aid attorneys, nor

are there any plans to increase the

number to meet the need.

Current statutes require a judge to

order the more financially secure

spouse to pay the other spouse’s

engoing legal fees and support if

the request is well founded.

However, these laws generally are

not observed or are observed in a

manner biased against women.

Many judges fail to require the more

financially secure spouse to pay the

other spouse’s fees and costs

because of ae false perception that

attorneys can or are willing to

M-12

1.

2.

“finance” divorce actions for their

clients.

An award of attorney’s fees, if it

eccurs at all, usually comes at the

close of the case. Often. the award

is reduced by the judge, especially

if a woman attorney represented a

woman litigant.

c. Judicial Attitudes

Most of Florida’s circuit court

judges dislike dealing with family

law matters. This attitude can

affect the outcome of cases.

Many judges in Florida presume that

a womsem will enter the job market

after divorce regardless of the

length or conditions of the marriage

and notwithstanding her age, lack of

training or justifiable

expectations.

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3.

Many Florida judges fail to

appreciate or recognize the

difficulties for women in starting a

career at an age when many men are

close to retirement.

d. Appellate Review

HS a consequence of limited

finances, many women are virtually

forclosed from appellate review of

trial court decisions. Frequently

they cannot afford the trial

transcript or appellate counsel

necessary for an appeal.

e. Equitable Distribution

and Spousal Support

Fault plays a definite role in some

mar ital dissolutions, despite the

characterization of Florida’s

divorce law as being “no-fault.”

The statute’s alimony section

provides that the adultery of either

spouse may be considered when

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determining the amount of the

alimony, if any. Because women

historically are the ones who must

seek alimony, however, they have

been disproportionately affected by

findings of fault.

In many areas of the state, the

courts have virtually abandoned

permanent alimony or substituted in

its place unrealistic rehabilitative

alimony awards.

Many judges fail to ward permanent

alimony, prefering instead to use

the vehicle of equitable

distribution. Yet, because men

usually have a greater earning

potential, women are disadvataged by

“equitable” distribution when

martial assest are too slight to

provide a sufficient income.

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4.

Fs

In equitable distributions, men

generally receive sixty-five to

seventy-five percent of the marital

assests compared to twenty-five to

thiry-five percent for women.

The new equitable distribution

statute has an extensive list of

factors to be considered in

distributing assets, but it lacks a

requirement of written findings of

fact. This allows a trial court

almost unreviewable

discretion in dividing marital

property.

The major asset of most marriages is

the earning capacities of the

partners.

Before the no-fault divorce and

equitable distribution statutes vere

adopted, courts usually allowed the

custodial parent and children to

occupy the family home after

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divorce, in addition to receiving

support. Common practice today,

however, is to order sale of the

family home so that a cash

settlement can be made for equitable

distribution pruposes.

8. As a result of their almost

unlimited discretion, trial courts

distribute marital assets either as

property or alimony with a lack of

certainty and consistency. This may

lead to inappropriate property

settlements between the parties.

Recommemdat ions

a. Equitable Distribution

and Spousal Support

i. The legislature should adopt the

concept of community property be

providing that marital assets

enumer ated in the equitable

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a

=

distribution statute be considered

Joint marital assets.

There should be a presumption that

all marital assets 2e divided

evenly.

Even if it rejects t!t2 concept of

community property, the legislature

should amend the dissol.tion statute

to require that equitable

distribution awards have explicit

findings of fact tht include the

valuation of assets. Also, the

certainty and consistency previously

lacking in Florida appellate

decisions should be encouraged by a

presumption in favor of equal

division and a statutory requirement

that unequal division be supported

by factual findings based on

enumerated factors. Without such a

requirement, the disparities of the

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past will continue. A presumption

of equal division and the husband’s

incentive to gain an advantage

through continued litigation and

would improve the ability of the

appellate courts to review cases....

Spousal support awards for marriages

of long duration should be designed

to equalize the standards of living

of post-divorce households at the

time of dissolution. The current

standard seeks only to maintain the

standard of living established

during the marriage. A rebuttable

presumption in favor of permanent

periodic alimony in long-term

marriages is appropriate.

The legislature should amend the

dissolution of marriage statute to

require that:

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a. Each equitable distribution

judgment should contain findings of

fact, including determination of

values of the assets and the reasons

for the award; or

b. In the alternative, if atrial

judge does not divide property

evenly, the judgment should contain

findings of fact justifying the

result.

If a judge awards periodi=-= alimony

for equitable distribution purposes,

the award should not terminate on

remarriage or death. The party

wishing to terminate spousal support

than would be required to filea

modification petition, and vwritten

findings should be required.....

d. Judiciary

The Florida Conference of Circuit Judges

should establish an annual comprehensive

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Judicial training and education program

in family law that includes the economic

consequences of dissolution and ways in

which judicial decisions

disproportionately effect each gender.

Attendance should be mandatory for all

Judges hearing family law matters.

e. Access to Justice

Judges must eliminate the egregious

imequity caused by their failure to

award a disadvantaged spouse temporary

and final fees and costs provided by

law.

f. Prenuptial Agreements

Bec ause of the failure of equitable

distribution, some couples enter into

prenuptial agreements requiring an even

split of assets upon dissolution.

Unfortunately, the majority of persons

remain unaware of their legal rights

upon entering a marriage. Thus, when a

M-21

couple applies for a marriage license,

they should receive a pamphlet outling

current Florida case law and legislation

regarding marital rights, dissolution,

custody, child support and enforcement.

GQ. Family Court or Family Divisions

Where feasible, the chief judge of each

circuit with more than five circuit

judges sitting in a single county should

create a family law division.

h. Mediation

1. The Commission recommends mandatory

mediation for disputes about

parental responsibility, except when

domestic violence is reported to

exist in the family. The primary

focus of mediationwould be to

require parents to formulate a

parenting plan. This would divert

parents from fighting over

possessory labels, such as custody,

M-22

2.

by focusing instead on formulating a

practical plan for raising the

children.

Mediation services should require

divorcing parents to attend classes

on the impact of divorce trauma on

their children, as well as the

problems they are going to encounter

as they divorce and what is expected

of them. Noncompliance would be a

factor for the court to consider’ in

approving a parenting plan and

subsequent visitation.

M-23

THE PRESSING NEED TO

ELIMINATE GENDER BIAS

in Florida’s Justice System

by Justice Gerald Kogan :

"Gender bias"-irrational

discrimination based on a person’s

sex-is an unfortunate aspect of nearly

every Florida legal institution. This

is the reality disclosed in two years of

study by the Florida Supreme Court

Gender Bias Study Commission, whose

final report is summarized on the pages

that follow.

In fact, gender bias threatens to

undermine this state’s policy of

providing equal protection for all its

citizens. Gender bias belies the

Florida Constitution’s guarantee that

all persons "“are equal before the law

and have inalienable rights, among which

are the right ... to be rewarded for

industry." . Too often in Florida

N-1

equality before the bar and bench and

the right to be rewarded for industrious

advocacy depend heavily on one’s gender.

The final report constitutes the

most thorough documentation of this

problem over undertaken in Florida. Our

analysis and recommendations are based

on thousands of hours of work and

research by commissioners, legal

scholors, practicing attorneys, legal

assistants, and hundreds of individuals

who testified before commission hearings

held throughout the state. Every aspect

of Florida’s justice system was

investigated, in keeping with the

charter issued to this commission by

Chief Justice Parker Lee McDonald on

June 7, 1987.

The findings of the commission

amply illustrate the pressing need to

rid our profession and our professional

N-2

lives of gender bias. In an effort to

achieve this goal, the commission also

has provided an extensive series of

recommendations. These include proposed

reforms by the Florida Supreme Court,

the legislature, The Florida Bar, other

professional organizations, and the

state’s law schools. Although some

commissioners dissented from particular

findings or recommendations, the

oeverall report was approved by the

consensus.

By publishing the condensed report

in the Florida Bar Journal, the

commission hopes to inform every Bar

member of both our findings and

recommendations. we publish these

materials with the hope of disclosing a

serious problem in our justice system

that, in fairness to ourselves and out

of respect for our constitution, we must

make every effort to eliminate.

A member of the Supreme Court since

1987. Justice Kogan chaired the Supreme

Court Gender Bias Study Commission.

The Florida Bar Journal/May 1990

a

DO WOT PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 89-3673 & 89-3804

D.C. Docket No. 85-00455-CIV-ORL-19

ELEANOR S. SIMPSON,

Plaintiff-Appellant,

versus

DONALD M. SIMPSON, TERRY C.

YOUNG, TANYA PLAUT, GILES, HEDRICK

& ROBINSON, P.A., MINNIE BRIDGES,

and LAWSON LAMAR, as Sheriff,

Orange County, Florida,

Defendants-Appellees.

Appeals from the United States District

Court for the Middle District of Florida

(November 15, 1990) ?

Befire KRAVTCH and ANDERSON, Circuit

Judges, and ATKINS*, Senior District

Judge.

PER CURIAM: AFFIRMED. See lith Cir.R.

36-1.

*Honorable C. Clyde Atkins, Senior U.S.

District Judgefor the Southern Districtof

Florida, sitting by designation.

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