Opposition Brief — Simpson v. Simpson

Supreme Court, U.S

FILED

APR 23 199)

No. 90-1340

OFFICE OF THE Cy

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

*

ELZANOR 6&6. SIMPSON

Petitioner,

vs.

DONALD M. SIMPSON; TERRY C. YOUNG;

GILES, HEDRICK & ROBINSON, P.A.;

TANYA PLAUT; LAWSON LAMAR, SHERIFF OF

ORANGE COUNTY, FLORIDA; AND MINNIE BRIDGES;

Respondents.

+

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The

Eleventh Circuit

.

RESPONDENTS'S BRIEF IN OPPOSITION

*

William G. Osborne, Esquire Tanya M. Plaut, Esquire

538 East Washington Street 506 Mariposa Street

Orlande. Florida 32801 Orlando, Florida 32801

(407) 843-5211 (407) 425-6610

Attorney for Respondent, Attorney for Respondent.

Denald Sispson Tanya Plaut

Lavinia Dierking, Esquire Jeffrey M. Fleming, Esquire

ll East Pine Street Post Office Box 3427

Orlando, Florida 32801 Orlando, Florida 32802

(407) 425-1802 (407) 849-6459

Attorneys for Respondents, Terry C. Young

and Giles, Hedrick & Robinson, P.A.

Jeffrey G. Slater, Esquire James WV. Glatt, Esquire

605 East Robinson Street lll North Orange Avenue

Orlando, Florida 32801 Suite 2000

(407) 425-4251 Orlando, Florida 32801

Attorney for Respondent, (407) 841-7000

Lavson Lamar, Sheriff Attorney for Respondent.

of Orange County, Florida Minnie Bridges

QUESTIONS PRESENTED

Respondents would respectfully submit

that neither the decision below nor the

facts contained in the record, raise the

questions presented in the Petitioner's

brief. Therefore, Respondents respect-

fully restate the questions presented

that relate to this Court's discretionary

jurisdiction to issue a Writ of Certio-

rari:

I.

WHETHER SALE BY SHERIFF OF PETITIONER'S

HALF INTEREST IN HER FORMER MARITAL

RESIDENCE WAS CONDUCTED PURSUANT TO A

CONSTITUTIONAL STATE STATUTE AND WHETHER

PETITIONER WAS DENIED SUBSTANTIVE AND

PROCEDURAL DUE PROCESS.

II.

WHETHER THE PETITIONER WAS DENIED SUB-

STANTIVE AND PROCEDURAL DUE PROCESS WHEN

SHE FAILED TO MAKE A BID ON HER FORMER

MARITAL RESIDENCE AND WHEN SHE WAS NOT

ALLOWED AN OPPORTUNITY TO REDEEM PRIOR TO

FINAL DEPRIVATION OF HER PROPERTY.

WHETHER THE TRIAL COURT ERRED IN DISMISS-

ING WITH PREJUDICE AND GRANTING RESPOND-

ANT'S MOTION FOR SUMMARY JUDGMENT ON

PETITIONER'S CLAIMS PREDICATED UPON ALLE-

GATIONS OF UNLAWFUL ARREST AND EXCESSIVE

USE OF FORCE.

Iv.

WHETHER THE TRIAL COURT ERRED IN HOLDING

THAT PETITIONER FAILED TO ADEQUATELY

PLEAD OR PROVE A CONSPIRACY BECAUSE THE

"UNDER COLOR OF STATE LAW" REQUIREMENT OF

42 U.S.C. §1983 HAD NOT BEEN MET.

-ii-

QUESTIONS PRESENTED... ....seeeecees

TABLE OF AUTHORITIES. ... 1. cece ecucs

JURISDICTIONAL REASONS FOR DENIAL

OF 0} ee re fe fee ee © © re ee fe ff © ©

STATEMENT OF THE CASE... ...eeeeeees

I. THE SALE BY SHERIFF OF

PETITIONER'S HALF INTEREST

IN HER FORMER MARITAL

RESIDENCE WAS CONDUCTED

PURSUANT TO A CONSTITU-

TIONAL STATE STATUTE AND

DID NOT DENY HER SUBSTAN-

TIVE NOR PROCEDURAL DUE

PROCESS . wc cccccccccccesesess

Il. THE PETITIONER WAS NOT

PRECLUDED FROM MAKING A

BID ON HER FORMER MARITAL

RESIDENCE AND WAS NOT

DENIED SUBSTANTIVE NOR

PROCEDURAL OUE PROCESS

WHEN SHE WAS NOT ALLOWED

AN OPPORTUNITY TO REDEEM

PRIOR TO FINAL DEPRIVATION

OF HER PROPERTY. ..«.. «0005

III. THE TRIAL COURT DID NOT

ERR IN DISMISSING WITH

PREJUDICE AND GRANTING

RESPONDENT'S MOTION FOR

SUMMARY JUDGMENT ON

PETITIONER'S CLAIMS PREDI-

CATED UPON ALLEGATIONS OF

UNLAWFUL ARREST AND EXCES-

SIVE USE OF FORCE.......««««:

-iii-

IV.

CONCLUSION

THE TRIAL COURT DID NOT

ERR WHEN IT HELD THAT

PETITIONER FAILED TO

ADEQUATELY PLEAD OR PROVE

A CONSPIRACY BECAUSE THE

"UNDER COLOR OF STATE LAW"

REQUIREMENT OF U.S.C. 1983

HAD NOT BEEN MET.....++++++-s

-iv-

TABLE OF AUTHORITIES

CASES PAGE

Adickes v. S. H. Kress &

Company, 398 U.S. 27 144,

(1970) -cccceccs i - A A & referees © 54

, 603 F.2d 503

(5th cir. 1979) ecccccccecces rf © © 26

, 758 F.2d 1486

(1ith cir. 1965S) ~cccccces ere feeeee 29

Inc., 477 U.S. 242, 247 (1986).. 49

, 190 So.2d 575

(Fla. 1966) neff © © Se eee ee eee eee 6 SS 21

, 84 F.R.D.

(N. PA. 1979) wccceces pe oe Cee @ & & & @& & 55

, 433

F.Supp. 1 (N.D. Ala. 1976)...... 34

661 F.2d 1206, 1209 (llth

Cir. 19B1) cccccccccccccccccccess 26

848 F.2d 1534, 1537 (lith Cir.

19GB) wccccccccccccccceeecceeeess 49

608 F.Supp. 232 (D.C. Nev.

(1988S) cccccccccccccccesessessesy 31

, 783 F.2d 1002,

. iit y oe - eee 47

-V=

TABLE OF AUTHORITIES

CASES PAGE

430 U.S

Rg POPS eee 9, 39

» 2 Fla. 171 (Pia.

BBES) cccccccccccccccccceceececes 21

» 477

U.S. 317, 323 1986) .cccccccccces 48

» 386 So.2d 292

(Fla. 2d DCA 1960) ccccccces reff © 39

Cotton States Mutual Insurance

Company v. Anderson, 749 F.2d

663 (llth Cir. 1984)... ceennes 33

, 449 U.S. 24,

27-29 (1980) wccccececcces ee * © 54, $7

‘orp. vy. Uhiig,

652 F.Supp. 1409 (S.D. Fla.

19B7) wc ccccccesesececs eee eeeee 38

» 786

F.2d. 1465, 1488-98 (11th

cir. 1986) ~cccccccceccecs se eeeee © 60

First Alabama Bank of Montgomery.

NA. vy, Parsons Steel, Inc.,

747 F.2d 1367 (llth Cir. 1984).. 30

, 482 So.2d

400 (Fla. 2d DCA 1986).......+.+. 38

U.S. BB (1971) .ccccccccccccccess 42

-vi-

» 461 F.Supp.

654 (M.D. Fla. 1978)......665. 32, 33

507 F.Supp. 814, 818, (E.D.

PRG Mncabtetaveodsceoedces 55

» 5325 F.2d 130

nes 31

420 So.2d 1082 (Fla. 1982)..... 9, 39

» 440 So.2d

58 (Fla. 4th DCA 1983).......... 9

: ° » 409 So.2d

487 (Pla. 4th DCA 1982)......... 38

¥. Cavendes, 591 F.Supp. 362

Se Ms Sn nc ccnntéséocece 30

, 695 F.2d $21

- 2 <3 ET aS 33

» 403 So.2d

563 (Fla. 3rd DCA 1981)......... 22

Nationwide Financial Corp. of

, 400

So.2d 559 (Fla. ist DCA 1981)... 40

Ohio Realty Investment Corp, v.

Southern Bank of West Pale Beach

300 So.2d 679 (Fla. 1974)....... 19

-vii-

CASES PAGE

’

725 F.2d 627 (llth Cir. 1984),

reh. den. 731 F.2d 891 .......29, 30

Parratt v. Taylor, 451 U.S. 527

(19681) wccccccccccccccces eee fe ee © 23

, 746 F.2d.

782, 785 (llth Cir. 1984)....... 56

» 531 So.2d

946 (Fla. 1988)... ce enecncccccucs 40

, 349 U.S. 70,

75 S.Ct. 614 (1955). cceeeeeeees ill

Robinson v. McCorkle, 462 F.2d.

111, 113 (3rd. Cir.) cert.

denied, 409 U.S. 1042 (1972).... 43

’

514 F.Supp. 907 (D.C. Nev.

1981) rocccccccccccsccesccececocs 32

vy. McNair,162 So 483 (Fla.

1935) eccccccccccccsccesecececece 23

, 837 F.2d.

1016, 1018 (llth Cir. 1988)..... 57

Sloan, 194 So. 128 (Fla. 1938).. 19

-viii-

689

F.2d 759 (8th Cir. 1982) cert.

denied, 103 S.Ct. 1427, 460

U.S. 1037, 75 L.Ed.2d 788.......

Florida Constitution, Article X...

Florida Constitution, Article x,

Section Beccccccccccccccceal,y 36,

Florida Constitution, Article x,

Section | STvrrrrererrrrrrfrerereee.

STATUTES

28 U.S.C. Section 1254(1).........

42 U.S.C. Section 1983....6, 9, 23,

37, 42, 44, 54, 55, 56, 60, 61,

42 U.S.C. Section B9SScccccececece

42 U.S.C. Section 1985(3).....7, 8,

39, 41, 42,

Florida Statutes, Section

30.15 (2) cccccccccccccccccccccese

Florida Statutes, Section 30.30...

Florida Statutes, Section

ES. OSLecccccccccccccccccccceceaDy,

~ix-

30

40

41

38

Florida Statutes, Section

SE. BBZcccccccccccconOs 19, 25, 26, 36

Florida Statutes, Chapter 222..... 23

RULES

Supreme Court Rule 10....+seeeeees 1

Supreme Court Rule 10.1.(&)......- i, 2

Supreme Court Rule 10.1.(DB)....«.«- 2

Supreme Court Rule 10.1.(C)..«««+-+- 2

Supreme Court Rule 14....«+«s+«+. ee 1

Supreme Court Rule 14.1.(})..«.«««+-«- 2

-xX=

JURISDICTIONAL REASONS FOR DENIAL OF WRIT

Petitioner has provided no jurisdic-

tional basis for the Supreme Court to

accept certiorari. Rule 14 of the Su-

preme Court Rules provides that a peti-

tion for writ of certiorari shall contain

-1.(j) A direct and concise

statement amplifying the rea-

sons relied on for the allow-

ance of the writ. See Rule 10.

Supreme Court Rule 10 provides that a

petition for a writ of certiorari will be

granted “only when there are special and

important reasons therefor." Rule 10

further delineates the character of

reasons that will be considered, includ-

ing the following:

~-1.(a) When a United States

court of appeals has rendered a

decision in conflict with the

decision of another United

States Court of appeals on the

same matter; or has decided a

federal question in a way in

conflict with the state court

of last record; or has so far

departed from the accepted and

usual course of judicial pro-

ceedings, or sanctioned such a

departure by a lower court, as

to call for an exercise of this

Court's power of supervision.

(b) When a state court of last

resort has decided a federal

question in a way that con-

flicts with the decision of

another state court of last

resort or of a United States

court of appeals.

(c) When a state court or

United States court of appeals

has decided an important ques-

tion of federal law which has

not been, but should be, set-~-

tled by this Court, or has

decided a federal question in a

way that conflicts with ap-

plicable decisions of this

Court.

Clearly, Petitioner has failed to

comply with either Supreme Court Rule

ents respectfully submit that Petition-

er's lack of compliance with these rules

stems from Petitioner's total inability

to provide a reasonable basis for this

Court to accept certiorari in this

matter. The Petitioner has provided this

Court with none of the above basis for

granting the writ of certiorari. Fur-

-2-

ther, the only basis for jurisdiction the

Petitioner has alleged in her brief is

Title 28, United States Code §1254(1).

Page 3 of Petition. Said provision is

merely the general jurisdictional state-

ment which indicates that cases in the

Court of Appeals may be reviewed by the

Supreme Court by writ of certiorari.

There is nothing new before this

Honorable Court that was not presented

both to the lith Circuit Court of Appeals

and the Middle District (trial) Court,

Orlando, Florida. In essence, Petitioner

reargues the entire case as presented at

the trial court and 1ith Circuit levels.

Petitioner does not allege any recogniza-

ble error in either court's decision.

Clearly, Petitioner just does not like

what the trial court and lith Circuit

decided. There are no reviewable or

reversible questions from either the

trial court's decision or the lith Cir-

cuit's per curiap affirmance of the same.

The decision at the trial court level

turned on its own facts affecting no

others than the litigants participating

in the matter. The trial court's order,

granting various motions to dismiss and

summary judgment, dated July 10, 1989,

was 27 pages in length. It addressed the

record evidence in combination with the

applicable law on each issue presented.

The clear conclusion of the trial court

was that Petitioner had not presented any

record evidence to support her claim and

summary judgment was entered accordingly.

Perhaps the most telling remark of the

trial court appears at page 5 of its

order where it was stated as follows:

This complaint is essentially a

complaint about the decisions

of state court judges under the

guise of a Section 1983 action.

Pederal courts, however, are

not a forum for appealing state

court decisions. (Citations

omitted).

Petitioner's first issue - whether

she was denied substantive and procedural

due process of law when she was not

allowed to make a bid on homestead

property and was not allowed an opportu-

nity to redeem - was fully addressed by

the trial court at pages 4-5 of its

order. The trial court specifically

pointed out that

«++ @ll of plaintiff's allega-

tions 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 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 Sec~-

tion 1983 action.’

(Citations omitted).

Further on page 6, the court stated,

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 the Complaint.

-5-

There are simply no operative

facts, merely a naked assertion

by the Plaintiff in her plead-

ing, that a conspiracy

existed. ...

The trial court noted this continued lack

of evidence from Petitioner even though

Petitioner had gufficient opportunity to

gather evidentiary support for her

Claims. (Emphasis added). And finally

as to the §1983 matters, the court stat-

ed,

- « « Defendants have carried

their burden of demonstrating

that there are no genuine

issues of material fact that

necessitate a trial, and plain-

tiff has failed to offer any

proof of a conspiracy involving

a judge. Having failed to

provide an essential element of

her case, summary judgment is

appropriate on plaintiff's

Claim of a conspiracy involving

state court judges in violation

of 42 USC §1983. (Order at

page 8).

As to the actual notice of sale, the

trial court specifically found the pub-

lished notice was not inadequate. The

trial court recognized that Petitioner

a

was active in attempting to stop the sale

on her behalf and in fact attended the

sale. Order at p. 12.

Petitioner also claims she was denied

equal protection under the law by not

being allowed to claim homestead exemp-

tion on her property interest in the

former marital residence of the parties.

The Petitioner claims that Respondents

operated together to defeat and deprive

the Petitioner of her homestead in viola-

tion of 42 U.S.C. §1985(3). To put it

simply, the trial court found that

Not only does Plaintiff's

Complaint fail to plead facts

to support a conspiracy in

violation of 42 U.S.C.

§1985(3), making a motion to

dismiss appropriate, but also

there are no evidentiary facts

of record to support such

contention. (Order at page

16).

The court noted that the defendants were

merely participating in a sheriff sale

that was

the result of a lien placed on

aJeo

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 law, 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. §1985(3). (Order at

page 17).

Further, the trial court found that

Petitioner did not state an independent

Claim for denial of equal protection

under 42 U.S.C. §1985(3) and summary

judgment for Respondents was entered on

Petitioner's claim that Respondents had

denied her constitutional right to own

and hold homestead property. Order at

pp. 18 and 19. The trial court pointed

out that the Florida Homestead provision

on which the plaintiff relied prior to

the date of sale of the property only

applied to property “owned by the head of

a family." The trial court noted that

such a provision did not discriminate on

———

| een eee

the basis of gender. (Order at page 18).

Citing Califano v. Goldfarb, 430 U.S.

199 (1977) and Holden v. State of Gard-

ner, 420 So.2d 1082 (Fla. 1982). The

court pointed out that Petitioner did not

allege or contend that she was ever

responsible for the welfare of another

while she resided on the subject proper-

ty.

The court also fully dealt with

Petitioner's claim that she was denied

her right to substantive due process when

excessive force was allegedly used

against her in the execution of a state

and enforceable writs ordered. In par-

ticular, the court stated that there was

no evidence that the defendants Young or

Giles, Hedrick, Robinson conspired with

the sheriff's deputies to deprive her of

rights secured under 42 U.S.C. §1983.

The court indicated that plaintiff was

merely relying on conclusory allegations

i

in the third amended complaint. Order at

p- 9 and 10. Clearly, Petitioner is

attempting to rehash before this Court

matters originally decided in divorce

proceedings between Petitioner and Re-

spondent, Donald Simpson. The state

appellate process was available to Peti-

tioner to question any decision of the

state court. However, Petitioner chose

to file a suit in Federal Court, Middle

District, Orlando, making various unsup-

ported claims against professional de-

fendants. The trial court, giving Peti-

tioner every benefit of the doubt, found

that Petitioner's claims were unsupported

by the record evidence. That decision

was affirmed per curiam by the l1ith

Circuit Court of Appeals. Petitioner has

no basis for seeking a writ of certiorari

to this Court. Premised on the jurisdic-

tional requirements alone, Respondents

respectfully submit that Petitioner's

writ of certiorari should be denied.

Rice v. Sioux City Memorial Park Ceme-

tery, 349 U.S. 70, 75 S.Ct. 614 (1955).

STATEMENT OF THE CASE

Respondents respectfully disagree

with the Statement of the Case as stated

by Petitioner and, in clarification,

states as follows:

The parties herein will be referred

to as they appear before this Court, i.e.

Petitioner, Respondent, Respondents or by

their respective names.

The Petitioner, Eleanor S. Simpson,

and Respondent, Donald Simpson, were

divorced on May 24, 1983 in the Circuit

Court, in and for Orange County, Florida.

(R5-162). Petitioner had numerous attor-

neys during the course of the divorce

proceedings. Mr. Simpson's attorney was

Respondent, Terry Young.

The Final Judgment (of Dissolution of

Marriage) was entered by Judge William c.

Gridley and provided, inter alia, that

Mr. Simpson receive certain personal

effects and that the marital home be

partitioned equally. (R5-162). Peti-

tioner appealed the Final Judgment, but

the Fifth District Court of Appeal per

curiam affirmed the Final Judgment on

January 31, 1984, and denied rehearing on

May 29, 1984. (R5-162).

Petitioner failed to comply with the

partition of personal property as stated

in the Final Judgment, whereupon on or

about August 19, 1983, upon motion of

Respondent, Donald Simpson, Judge Gridley

entered an Order of Division of Personal

Property authorizing the Clerk to issue a

Writ of Attachment for the personal

property of Mr. Simpson. (R5-162).

Subsequently, Mr. Simpson moved the Court

to permit the Sheriff's Forcible Entry

During Recovery of Personal Property.

(R5-162). The Court entered an Order

-12-

Granting Permission for Sheriff's Forci-

ble Entry During Recovery of Personal

Property on October 4, 1983, after a

hearing duly noticed. (R5-162). Simpson

interfered with the Respondent, Lawson

Lamar's (Sheriff's) execution of said

Order and was arrested on or about Octo-

ber 6, 1983.

Respondent Tanya Plaut was one of the

attorneys who had represented Petitioner

in her dissolution proceedings. Subse-

quent to the dissolution of marriage,

Tanya Plaut filed an action against

Eleanor S. Simpson for unpaid attorney's

fees. After trial of the issue at which

the Petitioner was represented by coun-

sel, a judgment for the fees was entered

in the case of Plaut v. Simpson, CI-83-

4444, Circuit Court in and for Orange

County, Florida. That judgment went

unpaid and subsequently, Respondent Plaut

executed and levied on Mrs. Simpson's

one-half interest in the marital home to

satisfy said judgment. (R5-162). Upon a

duly noticed Sheriff's Sale, Mrs. Simp-

son's one-half interest in the marital

home was purchased by Respondent, Donald

Simpson. Despite Mrs. Simpson's knowl-

edge of the impending sale, she neglected

to timely appear at the Sheriff's Sale to

protect her interest. Petitioner admit-

ted she received previous notice of the

scheduled Sheriff's Sale of her one-half

interest in her marital home. (R5-162;

R4-102). In fact, Petitioner prior to

the sale sought to prevent the sale by

emergency motion, which motion was de-

nied. (R4-102). Petitioner's testimony

establishes that she knew that sale was

to take place between the hours of 11:00

&.8. and 2:00 p.m., but operated under

her own conclusion that the sale “could-

n't go through because the court's ruling

was incorrect." (R5-162). Respondent,

Donald Simpson did appear and purchased

Mrs. Simpson's one-half interest in the

marital residence for the amount of

Respondent Plaut's judgment, approximate-

ly $8,013.87.

Subsequent to the purchase by Re-

spondent Donald Simpson the property was

listed with a realtor, Respondent Minnie

Bridges, and sold.

Petitioner filed an action in federal

court in April of 1985. As noted in the

order of July 10, 1989 of the United

States District Court, Middle District of

Florida, dismissing Petitioner's Third

Amended Complaint and granting summary

judgment in favor of Respondents Terry

Young, Giles, Hedrick & Robinson, P.A. in

total and Respondents Simpson and Lawson

Lamar in part, Petitioner had ample

opportunity to pursue her action in the

lower court through discovery, which was

extended on numerous times. (R6-194-7).

As further noted by the Middle District

Court in its order, Petitioner’ entire

action was based on the conclusory state-

ments of Petitioner Simpson.

I.

THE SALE BY SHERIFF OF PETITIONER'S HALF

INTEREST IN HER FORMER MARITAL RESIDENCE

WAS CONDUCTED PURSUANT TO A CONSTITUTION-

AL STATE STATUTE AND DID NOT DENY HER

SUBSTANTIVE NOR PROCEDURAL DUE PROCESS.

In her complaint Petitioner asserted

that the state statute pursuant to which

the forced sale of her half-interest in

the marital home was conducted, Florida

Statute 56.22 (1983), is unconstitution-

al. (R4-102) She complains that the

operation of that statute unconstitution-

ally deprived her of her right to proce-

dural due process. She claims that the

statute 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.M." Petitioner suggests that the

statute did not give her notice of the

exact time of the sale, and therefore the

statute is unconstitutional. Petitioner

does not claims that she did not receive

notice of the sale or that the sale

occurred outside the times specified.

Rather, she simply alleges that the

statute is unconstitutional and the sale

void because she was not given a particu-

larized time between the hours of 11:00

A.M. and 2:00 P.M. for the sale.

As the trial court correctly noted in

the Order of July 10, 1989, (R6-194) the

unrefuted facts of the record show that

the sale was conducted pursuant to a lien

placed on Petitioner's half-interest in

the marital home by her former attorney,

Defendant Plaut. Respondent Donald

Simpson took advantage of the procedure

provided by law and appeared at the

designated time and place set forth in

the Notice of Sheriff's Sale to bid on

the property. Petitioner had the same

-l7?-

opportunity to appear at the designated

time to bid on the property. Petitioner

admitted that she failed to be timely

present at the sale of the home as had

been scheduled by the Notice of Sheriff's

Sale “due to a misunderstanding" and

because she was stuck on the telephone.

(First Amended Complaint, par. 11(I).)

(Deposition of Petitioner 11/24/86,

pages. 98-101)

Prior to the date of sale Petitioner

was aware of the fact that a Notice of

Sheriff's Sale had been published in the

newspaper which announced that the sale

would take place between the hours of

11:00 A.M. and 2:00 P.M. on a particular

day. (Deposition of Petitioner 1/15/87,

Pg- 108) In fact, Petitioner had been

active, albeit unsuccessfully, in at-

tempting to stop the sale of her one-half

interest in the realty. (Deposition of

Petitioner 1/15/87, pg. 107).

-18-

The fact that Florida Statute 56.22

gives some latitude as to the specific

timing of the sale does not make the

statute unconstitutionally vague. See

Qhio Realty Investment Corp, v. Southern

Bank of West Palm Beach, 300 So.2d 679 at

n. 1 (Fla. 1974); State, Ex Rel. Rauler-

son v. Sloan, 194 So. 128 (Fla. 1938).

Nowhere in the Third Amended Complaint is

it alleged that the Sheriff's sale con-

ducted on April 30, 1984, did not comport

with Florida Statute 56.22.

As a basis for Petitioner's

contention that Florida Statute 56.22 is

unconstitutional, she compares its con-

tents to Florida Statute 45.031. Those

two statutes deal with different types of

sales -- one deals with judicial sales

while the other deals with execution

sales. In fact, subsection (8) of Flori-

da Statute 45.031 specifically states

that the statute does not apply to

-19-

property sold under executions. Further

the requirement in 45.031 that the notice

of a judicial sale contain “the time and

place of sale” is not inconsistent with a

notice which states that the sale shall

take place “between the hours of 11:00

A.M. and 2:00 P.M." The constitutional

validity of one statute is not to be

determined by the contents of another

statute.

In selling Petitioner's interest in

the property, the Sheriff was simply

enforcing a judgment and Writ of

Execution issued thereon by a circuit

court judge. In making the sale, the

Office of Lawson Lamar acted in an admin-

isterial capacity. Florida Statute 30.30

expressly provides that a sheriff is not

to be held liable for wrongful levy when

it is made as required by statute or

pursuant to the specific order of a court

of competent jurisdiction. A sheriff is

required by statute to execute all writs

directed to him to be executed in his

county. Florida Statute 30.15(2). He is

justified in the execution of a writ

regular on its face and issued by compe-

tent authority. Camp v. Mosely, 2 Fla.

171 (Pla. 1848).

In her Third Amended Complaint

Petitioner has not suggested that the

judgment nor Writ of Execution issued

thereon appeared invalid or irregular on

their face. With respect to the conduct

of a sale, a presumption exists that the

sheriff complied with the requirements of

the law and that the sale was regular in

all respects. The burden is on the

Petitioner to demonstrate otherwise.

Arlt v. Buchanan, 190 So.2d 575 (Fla.

1966). In this case Petitioner has

presented no facts indicating that the

sale was conducted in an irregular fash-

ion and not in accordance with Florida

Statutes.

Petitioner suggests that an

inadequate purchase price received for

her half-interest in the marital home

provides a sufficient basis for setting

aside the sale. First, it should be

pointed out that monies received from the

sale are not clearly inadequate given

that what was being purchased was a

half-interest in a home. Second, case

law is clear that an inadequate purchase

price alone is insufficient basis for

setting aside a sheriff's sale. McAlice

v. Anderson, 403 So.2d 563 (Fla. 3rd DCA

1981). Finally, Petitioner's suggestion

that the sale should be set aside as the

result of an inadequate purchase price

having been received from the sale raises

no federal constitutional issues which

would justify the exercise of jurisdic-

tion over Petitioner's claims.

As a general rule, relief against

-22-

mere irregularities in an execution (if,

in fact, they did exist) must be sought

in the original cause, and not in a new

and independent proceeding. Ryan's

Furniture Exchange, Inc. v. McNair, 162

So. 483 (Fla. 1935). The State of Flori-

da itself provides procedures through

which a “homestead owner" can prevent a

forced sale and further provides an

adequate remedy to “homestead owners" who

have lost their home through a forced

sale. See Florida Statute Chapter 222.

Although the statutes in Chapter 222 may

not provided Petitioner with all the

relief which may be available to her

under 42 U.S.C. 1983, they could have

fully compensated her for the property

loss allegedly sustained. Said available

remedies are sufficient to satisfy the

requirements of due process. Pparratt v.

Taylor, 451 U.S. 527 (1981).

Petitioner alleges that Sgt. Tranium

-23-

of the Office of the Orange County

Sheriff denied her a constitutionally

required opportunity to redeem her

property subsequent to the Sheriff's

sale. Petitioner fails to cite to any

particular source of this alleged right.

In truth, there exists no legal right

(constitutionally or otherwise) to redeem

property following such a sale.

It would appear that the Petitioner

has confused a Sheriff's sale with a

mortgage foreclosure wherein under cer-

tain circumstances there does exist an

opportunity to redeem one's interest in

property which has been foreclosed upon.

Petitioner's Third Amended Complaint

fails to demonstrate how any denial of a

right to redemption following a Sheriff's

sale constitutes a violation of Petition-

er's constitutional rights to procedural

due process or equal protection as Peti-

tioner seems to be asserting in paragraph

44 of the Third Amended Complaint. In a

lower court Order dated October 25, 1985,

the court, on page 8, paragraph 1, re-

jected Petitioner's contention that she

was constitutionally required an opportu-

nity to redeem the property pursuant to

the issuance of a deed by the Sheriff.

The court ordered that paragraph 13 of

the original Complaint alleging the

existence of such a constitutional right

be stricken. Unfortunately in her Second

and Third Amended Complaints Petitioner

merely moved the allegations of former

par. 13 to other numbered paragraphs.

It should not be overlooked that

Petitioner did not assert the

unconstitutionality of Florida Statute

56.22 at any time in the state court

dissolution of marriage proceedings where

Petitioner sought to prevent the sale

from taking place and later sought to

have the sale set aside. In those pro-

ceedings Petitioner advanced other argu-

ments as to why the sale should not have

taken place. In Almon v. Sandlin, 603

F.2d 503 (5th Cir. 1979), the Fifth

Circuit Court of Appeals held that if a

Petitioner does not assert the unconsti-

tutionality of a state statute in the

state proceedings, he has waived his

unconstitutionality claim.? Respondents

therefore assert that this Court may not

now properly consider whether Florida

Statute 56.22 is unconstitutional as

asserted by Petitioner.

Respondents further assert that

Petitioner's claims attacking the

constitutionality of Florida constitu-

tional provisions and statutes are barred

by the doctrines of res judicata and/or

1. In Bonner v. City of Prichard,

661 F.2d 1206, 1209 (llth Cir. 1981) the

Eleventh Circuit adopted as binding

precedent all decisions of the Fifth

Circuit rendered prior to 10/1/81.

-26-

ee

collateral estoppel. Petitioner submits

that the Sheriff's sale of April 30,

1984, should be set aside as the Notice

of Sheriff's Sale is unconstitutionally

vague and because the homestead exemption

provision of Article X, Section 4 of

Florida's Constitution (which was in

effect at the time of the sale) unconsti-

tutionally discriminated against single

women who were not the head of a family.

In several prior judicial proceedings in

Florida state courts Petitioner sought to

have the Sheriff's sale of April 30,

1984, set aside. After having received

notice of the sale, but prior to it

taking place, Petitioner filed an emer-

gency motion in the Circuit Court in and

for Orange County, Florida, (Case No.

CI-83-4144) seeking to prevent the sched-

uled sale from taking place. (Par.

41(L), Third Amended Complaint (R4-102)

and Exhibit "D" attached thereto.) Saia

-27-

motion was denied on April 26, 1984.

(Exhibit "BB" of Third Amended Cos-

plaint.) Subsequent to the sale Peti-

tioner filed a notice to vacate the

Sheriff's sale of April 30, 1984. (Pars.

41(N), 57 and 58 and Exhibit "II" of

Third Amended Complaint.) Petitioner's

motion to vacate the sale was denied on

June 13, 1984. (Exhibit "JJ" to Third

Amended Complaint.)

Following the denial of her motion to

vacate the Sheriff's sale, Petitioner

filed appellate proceedings in the Fifth

District Court of Appeal, State of Flori-

da (Case No. 84-959) where she again

attacked the validity of this sale and

sought to have it set aside. The Fifth

District Court of Appeal for the State of

Florida dismissed Petitioner's appeal.

(See Count V of Petitioner's original

Complaint filed in this action.) Thus it

is clear that Petitioner, in several

previous court proceedings, unsuccessful-

ly attempted to have the Sheriff's sale

declared invalid and set aside. Peti-

tioner is therefore barred by the doc-

trines of res judicata and/or collateral

estoppel to now present such claims

attacking the validity of the sale.

Generally the doctrine of res judica-

ta bars subsequent litigation where there

is an identity of the things sued for, an

identity of action, identity of persons

and parties to the action, and an identi-

fy of the quality or capacity of the

person for or against whom the claim is

made. Amey, Inc. v. Gulf Abstract &

Title. Inc., 758 F.2d 1486 (lith Cir.

1985). However, the bar of res judicata

extends not only to the precise legal

theory presented in the previous litiga-

tion, but rather to all legal theories

and claims arising out of the same opera-

tive nucleus of facts. Olmsted v. Aamco

-29-

Qil Company, 725 F.2d 627 (llth Cir.

1984), yeh. den. 731 F.2d 891; First

Alabama Bank of Montgomery, N.A. v.

Parsons Steel, Inc., 747 F.2d 1367 (llth

Cir. 1984). The principle of res judica-

ta bars relitigation of the same claim

even where a new theory is advanced as

the basis for relief in a second suit.

United States v. Stewart, 689 F.2d 759

(8th Cir. 1982), cert. den. 103 S.Ct.

1427, 460 U.S. 1037, 75 L.Ed.2d 788. A

second action advancing a different legal

theory than was presented in the first

action, but which is based upon the same

events and injuries is barred by a final

decision in the first action where that

theory could have been argued as an

alternative or an additional ground for

recovery. Bushman v. Safeway Stores,

Inc., 608 F.Supp. 232 (D.C. Nev. 1985);

John Alden Life Insurance Company v.

Cavendes, 591 F.Supp. 362 (S.D. Fla.

-30-

1984). A plaintiff must take advantage

of an opportunity to assert all theories

against a defendant upon which she might

recover; a plaintiff should not be al-

lowed to litigate in a subsequent action

that which could have been advanced

previously. Bushman v. Safeway Stores,

Inc., supra. A final judgment is conclu-

sive not only as to the claims adjudicat-

ed, but also as to claims which could

have been adjudicated. Hence, where a

judgment on the merits is rendered in

favor of a defendant the piaintiff may

not bring a second suit based on the same

cause of action but seeking recovery on a

different theory. Herendeen v. Champion

International Corp., 525 F.2¢c 130 (2nd

Cir. 1975). A comparison of Petitioner's

attack on the validity and constitution-

ality of the Sheriff's sale made in the

Federal District Court with the above-

described previous state court proceed-

ings leaves no doubt that the Petition-

er's state court allegations and the

federal case were predicated upon the

same occurrences, events and set of

facts. Though it is true that the Third

Amended Complaint filed by Petitioner

describes the facts surrounding the

Sheriff's sale in greater detail than

would appear in the previous state court

proceedings, this does not avoid the

proper application of the doctrine of res

judicata to bar Petitioner's present

pursuit seeking to have the sale set

aside. Rosenthal v. State of Nevada, 514

F.Supp. 907 (D.C. Nev. 1981).

The lower court rejected the mutuali-

ty of parties requirement as an essential

element for the application of collateral

estovpel. Hann v. Carson, 461 F.Supp.

854 (M.D. Fla. 1978). The elimination of

the mutuality requirement for collateral

estoppel is based upon the view that once

-32-

et

a party has had a full and fair opportu-

nity to litigate a question, he ought not

to be permitted a second opportunity to

litigate the same question in the later

case simply because he has a different

adversary. Hann v. Carson, supra. Other

federal courts have also stated that a

litigant may assert collateral estoppel

even though he was not a party to a prior

suit. Cotton States Mutual Insurance

Company v. Anderson, 749 F.2d 663 (11th

Cir. 1984); Matter of Raiford, 695 F.2d

521 (llth Cir. 1983).

Though, as indicated above, a mutuaél-

ity of parties is no longer a requirement

for the application of the doctrine of

collateral estoppel, here we really are

dealing with a mutuality of parties even

though the Sheriff, Lawson Lamar, was not

named as a defendant in the prior state

court proceedings. The described state

court proceedings sought to prevent a

=-33-

sale by the Sheriff from taking place and

further sought to vacate a sale conducted

by the Sheriff and the issuance of a

Sheriff's Deed to Mrs. Simpson's half-

interest in certain real property.

Though perhaps not named as a defendant,

the Sheriff is a “silent” party and

perhaps may even be described as a real

party in interest in proceedings attack-

ing the validity of a Sheriff's sale.

All of the "identities" needed for the

application of the doctrines of res

judicata and/or collateral estoppel are

present in this case. Petitioner should

not be allowed to relitigate a claim

which was previously considered and

resolved by Florida State Courts.

In the case of Billingsley v. Sei-

bels, 433 F.Supp. 1 (N.D. Ala. 1976),

plaintiffs attacked the validity of a

deed which conveyed real property that

was foreclosed at a public improvement

-34-

sale. Claims were made in the State

court that the real estate transfer was

void under 42 U.S.C. 1983 and the due

process clause of the Fourteenth Amend-

ment. The Alabama Supreme Court deter-

mined that the deed was valid. The

plaintiffs then filed another civil

rights action in which they sought to

have the deed declared invalid in the

Federal court. The Federal court action

involved the same real estate and many of

the same parties, though not all of the

same parties. The Federal court found

that the judgment entered in the Alabama

court barred relitigation between the

original parties of the matter adjudicat-

ed therein. However, the court went on

to find that the doctrine of collateral

estoppel could properly be asserted by

other defendants named in the Federal

court action even though they were not

parties to the State court action.

-35-

In this case, even though Sheriff

Lawson Lamar was not specifically named

as a party to the State court proceed-

ings, he may properly invoke the doctrine

of collateral estoppel and/or res judica-

ta which would prevent a relitigation of

Claims that Florida Statute 56.22 and

Article X, Section 4 of the Florida

Constitution of the State of Florida are

unconstitutional.

II.

THE PETITIONER WAS NOT PRECLUDED FROM

MAKING A BID ON HER FORMER MARITAL RESI-

DENCE AND WAS NOT DENIED SUBSTANTIVE DUE

PROCESS WHEN SHE WAS NOT ALLOWED AN

OPPORTUNITY TO REDEEM PRIOR TO FINAL

DEPRIVATION OF HER PROPERTY.

Question To is merely a reargument

of the same question presented to the

Eleventh Circuit Court of Appeals. No

new authority is cited by Petitioner.

The trial court did not err in ruling

that Petitioner failed to state a cause

of action for denial of equal protection

-36-

based upon Petitioner's claim for home-

stead exemption of her half-interest in a

former marital residence.

In Count V of the Third Amended

Complaint, Petitioner sued Respondents

SIMPSON, YOUNG, GILES, HEDRICK & ROBIN-

SON, P.A., PLAUT and LAMAR, and alleged

that she had been denied her constitu-

tional right to own and hold homestead

property because "the Florida constitu-

tional provision in effect at the time of

the forced sale of her homestead disal-

lowed the forced sale of homestead of

married or single persons, but not for

single women who were heads of their own

household..." (R4-102-39).

Petitioner alleged that she had been

denied equal protection of the laws

guaranteed to her by Title 42, U.S.C.

Section 1983 and, further, had been

discriminated against on the basis of her

sex and on the basis of her being a

-37<

single head of her own family unit, in

violation of 42, U.S.C. Section 1985(3).

(R-102-39).

Article X, Section 4A of the Florida

Constitution, in effect in April of 1984,

provided that the Florida homestead

provision applied to property “owned by

the head of a family". “Head of a fami-

ly" is defined as applying to those who

are responsible, either legally or moral-

ly, for the welfare of someone else and

is based upon being able to establish

“support obligations". Edward Leasing

Corp. v. Uhlig, 652 F.Supp. 1409 (S.D.

Fla. 1987); In Re: Shorr's Estate, 409

So.2d 487 (Fla. 4th DCA 1982); Flannery

Vv. Green, 482 So.2d 400 (Fla. 2d DCA

1986).

In the trial court ruling, the court

found that the Florida homestead provi-

sion did not discriminate on the basis of

gender, which might have stated a claim

-38-

under 42 U.S.C. Section 1985(3) (R6-

194), citing Califano v. Goldfarb, supra

and Holden v. Estate of Gardner, 420

So.2d 1082 (Fla. 1982)). In Holden,

supra, the court specifically found that

the presumption that a husband is the

head of family was abrogated by the 1971

amendment to Section 61.09, Florida

Statutes. Section 61.09 of the Florida

Statutes placed a duty of support on both

spouses and has been construed as abro-

gating the presumption that the husband

is the head of family, citing Cory v.

Parks, 386 So.2d 292 (Fla. 2d DCA 1980).

Id. at 1085. Holden, supra, concluded

that the head of the family may be either

the husband or the wife.

Additionally, Florida law has held

that there can be only one head of family

and no presumption of headship goes to

the husband. In Re: Estate of Melisi,

440 So.2d 584 (Fla. 4th DCA 1983); see

also Nationwide Financia] Corp. of Colo-

rado v. Thompson, 400 So.2d 559 (Fla. ist

DCA 1981).

Petitioner argues that the November

1984 amendment to Article X of the Flori-

da Constitution has some bearing on this

case. The amendment of Article X of the

Florida Constitution had nothing to do

with correcting any class-based discrimi-

nation. The 1984 amendment changed the

term “head of family" to “a natural

person".

The amendment thus expanded the

Class of persons who can take ~

advantage of the homestead

provision and its protec-

tions.... As representative

Hawkins, who sponsored the

amendment in the House of

Representatives, explained, the

purpose of the revision was 'to

give protection against forced

sale for the homestead of a

single person, a divorced

person, any person who has a

homestead, rather than just a

head of a family.' House

Judiciary Full Committee Meet-

ing, March 29, 1983. Public

Health Trust of Dade County v.

Lopez, 531 So0.2d 946 (Fla.

1988).

-40-

The Third Amended Complaint clearly

attempted to state a cause of action for

discrimination based on sex. Under no

stretch of the facts or the law, would

the application of Article X, Section 4

result in sexual discrimination.

Petitioner states that she has shown

sufficient facts to demonstrate the

motivation from which a jury could rea-

sonable infer the existence of a conspir-

acy in violation of Title 42, U.S.C.

§1985(3).

In order to recover under 42

U.S.C. 1985(3) the Petitioner must prove:

(1) a conspiracy, (2) to deprive,

directly or indirectly, any person or

Class of persons of equal protection or a

privilege of immunity protected by law;

(3) that the conspirators committed some

act in furtherance of the conspiracy; and

(4) that the Petitioner was “injured in

his person or his property" or was

-4l-

“deprived of having and exercising any

right or privilege of a citizen of the

United States." Griffin v. Breckenridge,

403 U.S. 88, 103-104 (1971).

Thus, under either Section 1983 or

Section 1985(3) it is essential to

Petitioner's claim that she be able to

plead and prove a conspiracy between the

Respondents. The District Court has

ruled that Petitioner has done neither.

Petitioner's allegations of conspiracy

are conclusory and are not supported by

any evidence.

Count VII essentially is a restate-

ment of the allegations of Count II

regarding the sale of the Petitioner's

one-half interest in the former marital

residence. This time, instead of being

brought under Title 42 U.S.C. Section

1983, the allegations are made under 42

U.S.C. Section 1985. Again, broad alle-

gations of conspiracy are made against

Respondents. It is Petitioner's

contention that Respondents owed the

Petitioner various duties, none of which

are supported by the facts or the law.

Obviously, the interests of Respondents

Terry Young and Donald Simpson were

completely adverse to those of Petition-

er. Further, the District Court's grant-

ing summary judgment was correct given

the absence of any genuine issue of

material fact that the Respondents were,

at all times, acting in accordance with

and pursuant to valid legal process.

In order to withstand a Motion to

Dismiss, the Petitioner must assert at

least minimum support for the existence

of a conspiracy. Robinson v. McCorkle,

Supra. It is necessary that the conm-

plaint state more than allegations of

deprivation of constitutional rights.

Id. at 113. Petitioner is not entitled

to pursue an action merely because she

-43-

believes, without factual support, that a

conspiracy existed.

The District Court properly found

that Petitioner did not state a cause of

action for denial of equal protection

under either 42 U.S.C. Section 1983 or 42

U.S.C. Section 1985(3) and further prop-

erly granted the motions for summary

judgment as to Count V of the Third

Amended Complaint.

Iil.

THE TRIAL COURT DID NOT ERR IN DISMISSING

WITH PREJUDICE AND GRANTING RESPONDENT'S

MOTION FOR SUMMARY JUDGMENT ON PETITION-

ER'S CLAIMS PREDICATED UPON ALLEGATIONS

OF UNLAWFUL ARREST AND EXCESSIVE USE OF

FORCE.

A. RESPONDENT LAMAR WAS PROPERLY

GRANTED A SUMMARY JUDGMENT ON PETITION-

ER'S 1983 AND 1985 CLAIMS OF UNLAWFUL

ARREST AS P TITIONER CONCEDED SHE HAD NO

EVIDENCE TO ESTABLISH THAT THE ALLEGED

EXCESSIVE USE OF FORCE WAS THE RESULT OF

AN OFFICIAL POLICY, STATUTE, ORDINANCE,

REGULATION OR CUSTOM OF THE SHERIFF.

In Counts IV and V of her Third

Amended Complaint (R4-102) Petitioner

incorporates by reference Count I which

includes the allegation that a deputy

sheriff used excessive force in arresting

Petitioner during a court-ordered forci-

ble entry of the Simpsons' house. The

deputy sheriff who effected the arrest of

Petitioner was Edward J. Noyes. Peti-

tioner has not sued Deputy Noyes. She

did, however, include as a defendant in

her lawsuit the Sheriff of Orange County,

Florida, Lawson Lamar. Sheriff Lamar is

sued in his official capacity. No alle-

gation is made that Respondent Lamar was

present at the time of Petitioner's

arrest; neither is there any allegation

of Lamar having personally participated

in the arrest.* As the trial court judge

2. Petitioner states at pages 52-53

of her brief that only one deputy sheriff

was present at the time of her arrest and

that such constitutes a violation of a

policy of the Orange County Sheriff's

Office which requires using two deputies

correctly pointed out to Petitioner in

her Order of July 10, 1989, Petitioner

must demonstrate that the constitution-

al deprivation was the result of a gov-

ernmental custom, policy, ordinance,

regulation or decision officially adopted

or promulgated by the Office of the

Sheriff if she is to recover against

Lamar for the actions of Deputy Noyes.

(R 6-194; Id.. at 690-691). In order to

prevail upon her claims of unlawful

arrest and the use of excessive force

during that arrest Petitioner would have

to demonstrate a causal link between an

official policy, ordinance, practice or

---Continued---

for domestic disputes. No citation to

the record on appeal in support of such

statement is made. Respondent Lamar

respectfully submits that these facts and

the policies of the Office of the Sheriff

as described by Petitioner are incorrect.

-46-

a

custom and her injuries. Byrd v. Clark,

783 F.2d 1002, 1008 (llth Cir. 1986).

In Lamar's supplement to his Motion

For Summary Judgment (R7-201) the Sheriff

sought summary judgment on Counts IV and

V of Petitioner's Third Amended Con-

plaint. Lamar asserted that summary

judgment was warranted as the affidavits

submitted in support of his supplément

indicate that the deputy sheriff who

arrested Petitioner during the forcible

entry of the Simpson house did not use

excessive force and that any alleged use

of excessive force during the arrest was

not pursuant to a custom, policy, ordi-

nance or decision adopted and promulgated

by the Office of the Sheriff. A response

filed by Petitioner attached an affidavit

of a person who was allegedly present

during the arrest, Mary Pruitt. (R7-208)

In that affidavit Ms. Pruitt suggests

that excessive force was used upon Peti-

-47-

tioner by the arresting officer. Simpson

asserted to the trial court judge that

the affidavit of Pruitt presents con-

flicting evidence during the deputy

sheriff's behavior which creates a genu-

ine issue of material fact sufficient to

withstand the Motion For Summary Judgment

filed by Defendant Lamar. However, in

her response to Lamar's supplement to his

Motion For Summary Judgment Petitioner

"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..."

(R7-208).

In Celotex Corp v. Catrett, 477 U.S.

317, 323 (1986) the United States Supreme

Court determined that summary 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

-48-

will bear the burden of proof at trial.

The court has further explained “that the

mere existence of some alleged factual

dispute between the parties will not

defeat an otherwise properly supported

Motion For Summary Judgment; the require-

ment is that there be no genuine issue of

material fact." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986)

(emphasis in original). The lower court

judge correctly found that though there

may be a dispute over whether- excessive

force was used, this is not sufficient to

withstand a Motion For Summary Judgment

when there is no evidence to establish

the existence of an element essential to

her case, i.e., that the alleged exces-

sive use of force was the result of an

official policy, statute, ordinance,

regulation, custom or usage. See Brown

v. City of Clewiston, 848 F.2d 1534, 1537

-49-

(llth Cir. 1988).3

B. RESPONDENTS WERE PROPERLY GRANTED

A SUMMARY JUDGMENT ON PETITIONER'S PEND-

ENT STATE LAW CLAIM OF FALSE ARREST AS

THE UNDISPUTED EVIDENCE DEMONSTRATED THAT

THERE WAS PROBABLE AND LAWFUL CAUSE FOR

THE ARREST.

In Count VIII of her Third Amended

Complaint Petitioner sued Respondents

Donald Simpson, Terry Young, Giles,

3 Affidavits of the arresting

officer, Edward J. Noyes, and of Defend-

ant Lawson Lamar were attached to Defend-

ant Lawson Lamar's Supplement To Motion

For Summary Judgment. (R7-201) Both of

those affidavits reflected that the

Office of the Orange County Sheriff did

not have a policy, procedure, practice or

custom (official or unofficial) which

permitted employees or appointees of the

Sheriff to use excessive, unreasonable or

unnecessary force in the arrest and/or

detention of persons. The Sheriff's

policies, customs, rules and regulations

prohibited a deputy from using excessive,

unnecessary or unreasonable force when

arresting or detaining a person. The

affidavits further reflect that all

deputy sheriffs such as Deputy Noyes had

received instruction on the policies of

the Office of the Sheriff. Deputies

further received from the Office of the

Sheriff instructions on the protection of

an arrestee's constitutional and civil

rights.

-50-

Hedrick & Robinson, P.A. and Lawson Lamar

for the allegedly false arrest of her on

or about October 6, 1983. Petitioner

sought to have the lower court exercise

its pendent jurisdiction over’. such

Claim. The trial court exercised its

discretionary jurisdiction over Petition-

er's false arrest claim. In her order of

July 10, 1989, United States District

Court Judge Patricia C. Fawsett concluded

that the Respondents were entitled to the

entry of a summary judgment in their

favor on Count VIII of the Third Amended

Complaint. This ruling of the trial

court judge was correct.

The unrefuted facts of record show

that the Sheriff's Office in entering

Petitioner's home acted pursuant to a

State Court Order which granted permis-

sion for forcible entry of the home

during Respondent Donald Simpson's recov-

ery of his personal property kept there.

-§l-

_

(Deposition of Petitioner 9/29/86, pg.

74; 5/2/86, pg- 102) The State Court

Order was granted after a hearing which

Petitioner attended. The Court Order

also specifically gave the Sheriff au-

thority to arrest any person who inter-

fered with the execution of the Order.

(Deposition of Petitioner 5/2/86, pg.

103). In her Third Amended Complaint

Petitioner acknowledges that she protest-

ed the taking of some items of personal

property prior to her being arrested.

She has stated that she objected to the

seizure of the items during the entry.

(Deposition of Petitioner 9/29/86, pg.

87). Petitioner further admitted during

a deposition that she had resisted ar-

rest. (Deposition of Petitioner 9/29/86,

pg. 104).

There can be no doubt but that there

was probable cause for the deputy sheriff

to arrest Petitioner. The trial court

judge properly found that there was no

evidence of record to show that Petition-

er had been falsely arrested. The Sher-

iff's deputy was executing a State Court

Order when he went to the house and

ultimately arrested Petitioner. Respond-

ents Donald Simpson and Terry Young of

Giles, Hedrick & Robinson, P.A. were

merely pursuing legal means as adver-

saries to Petitioner in a legal proceed-

ing to recover Donald Simpson's property.

The trial court judge correctly observed

that:

In essence, plaintiff is

complaining about state court

orders which divided the marital

estate and gave Defendant

[Donald) Simpson the right and

means to recover his property.

Based on the unrefuted facts of

record, summary judgment as to

Count VIII is granted in favor

of Defendants.

Iv.

THE TRIAL COURT DID NOT ERR WHEN IT HELD

THAT PETITIONER FAILED TO ADEQUATELY

PLEAD OR PROVE A CONSPIRACY BECAUSE THE

"UNDER COLOR OF STATE LAW" REQUIREMENT OF

U.S.C. §1983 HAD NOT BEEN MET.

Petitioner seeks recovery under 42

U.S.C. Section 1983. In order to recover

under 42 U.S.C. Section 1983, Petitioner

must first prove that Respondents have

deprived her of rights secured under the

constitution and laws of the United

States. Secondly, she must show that the

Respondents acted “under color of law."

Adickes v. S. H. Kress & Company, 398

U.S. 144, (1970). This requires Peti-

tioner to demonstrate that there was a

state actor or that those Respondents who

are private individuals conspired with a

state actor. See Dennis v. Sparks, 449

U.S. 24, 27-29 (1980). Private citizens

cannot be liable under Section 1983

unless they and a public official “acted

with a common understanding" or “meeting

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of the minds" to deprive the Petitioner

of her constitutionally protected rights.

Hassel] _v. City of Philadelphia, 507

F.Supp. 814, 818, (E.D. PA 1981) quoting,

Augenti_ v. Cappellini, 84 F.R.D. 73, 77

(N.D. PA. 1979).

Thus, under Section 1983 it is essen-

tial to Petitioner's claim that she be

able to plead and prove a conspiracy

between the Respondents. The District

Court has ruled that Petitioner has done

neither. Petitioner's allegations of

conspiracy are conclusory and are not

supported by any evidence.

Petitioner's Third Amended Complaint

is replete with allegations of conspiracy

between Respondents and various state

court judges. The Petitioner is relying

on such allegations to provide the "under

color of state law" connection necessary

for an action under 42 U.S.C. Section

1983. All of Petitioner's allegations in

-55-

that recard depend solely on conclusory

statements that there was a conspiracy.

This does not comport-with the require-

ments for stating a cause of action under

42 U.S.C. Section 1983. "The 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. Mash-

burn, 746 F.2d. 782, 785 (1ith Cir.

1984).

A review of the Third Amended Conm-

plaint and its voluminous attachments

makes it clear that the Petitioner has

been afforded ample opportunity to seek

redress of her grievances. The instant

action which seeks to state a claim under

the Civil Rights Act is an obvious at-

tempt to use the Feder:3l Court system to

obtain a more favorable result than that

obtained in state court. In tact, Ms.

-56-

Simpson now seeks collateral review of

the state court proceedings. In short,

this proceeding is nothing more than a

complaint about the decision of state

court judges under the guise of a Section

1983 action. Federal Courts, however,

are not a forum for appealing state court

decisions. Staley v. Ledbetter, 837

F.2d. 1016, 1018 (1lith Cir. 1988).

Petitioner cannot establish a prima

facia case to support her allegations.

She is unhappy with the result of her

dissolution of marriage action and has

worked backwards from that result to spin

a web of allegations supported by nothing

more than innuendo, conjecture, and

assumptions. As the Supreme Court ob-

served in Dennis v. Sparks, supra:

"Merely resorting to the courts and being

on the winning side of a lawsuit does not

make a party a co-conspirator with the

judge."

-57<

Paragraph 12, of Count I of

Petitioner's Third Amended Complaint

alleges that Petitioner's federal

constitutional right to be heard by an

impartial judge was deprived by

“obtaining the recusal of the original

circuit judge, Richard B. Cooper, and the

reassignment of the ocriginal divorce

action to William Cc. Gridley." This

allegation suggests that Petitioner

desired to have her dissolution

proceeding resolved by a judge who was

unbiased. In fact, what Petitioner is

upset about is losing a judge she felt

was biased in favor of women. At page

122 of her April 29, 1986, deposition

(R-5-153), Mrs. Simpson testified that

she has been told “Judge Cooper was

compassionate towards women because he

had lost two wives to cancer and that

Judge Gridley was a male chauvinist.."

Thus, the only apparent basis for making

-58-

an issue of the change in judges is that

Petitioner liked Judge Cooper better than

Judge Gridley.

Petitioner's testimony on this

subject fails to reveal any basis to

support any allegation of improper

conduct on the part of Respondents

regarding the service of Judge Cooper in

the original dissolution action. At page

9 of this deposition which was taken on

April 30, 1986, Respondent Young was

asked: |

Q: Do you recall if you filed a

Motion to recuse Judge Cooper?

A: Absolutely not. There was no

grounds for that.

Q: Was that a sua sponte order?

A: If you mean that he did it on his

own motion or for some reason

that I don't know about, that is

correct. (R5-153).

Petitioner contends that she has

-59-

tried to obtain a remedy from the state

courts but has been unsuccessful in

obtaining the relief requested because of

misrepresentations made by Respondents

before the courts. Accepting this alle-

gation as true, Petitioner'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,

1488-98 (llth Cir. 1986), cert. denied,

479 U.S. 860 (1986) which cites the

general rule in the Eleventh Circuit that

a private individual does not act under

color of state law by engaging in litiga-

tion, even in bad faith, unless that

individual is compelled by state law to

bring suit or is acting under the author-

ity or pretense of authority of the

state.

Count II of Petitioner's Third Amend-

ed Complaint seeks relief under 42 U.S.C.

-60-

Section 1983 and focuses on a series of

events which led to Donald Simpson pur-

chasing the Petitioner's one-half inter-

est in the marital residence. Paragraph

40 of Count II alleges that Respondents

"did act in collaboration or jointly and

under color of law of the State of Flori-

da to deprive the Petitioner of her

rights, privileges and immunities secured

to her under the United States Constitu-

tion and its laws ..." These allegations

are of the broadest nature and are unsup-

ported by the evidence.

The truth of the matter is that it

was Petitioner's own actions and

omissions which led to her husband,

Donald Simpson, being in a position to

purchase the marital residence. During

her deposition of April 30, 1986, (R5-

153), Petitioner was asked:

Q: You will agree with me, that

you were fully aware that there

-61-

was going to be a sale between

11:00 a.m. and 2:00 p.m. on the

30th of April of that house?

A: Yes.

Again at page 45 of her deposition taken

on May 2, 1986, (R5-153), Mrs. Simpson

was asked:

Q: Before the Sheriff's sale you

knew that the sale was going to

take place between the hours of

11:00 a.m. and 2:00 p.m.

A: Uh-umn.

Q: Did you not?

A: Yes.

There is no credible testimony to

implicate Respondents in wrongdoing re-

garding Donald Simpson's purchase of

Petitioner's one-half interest in the

house. Petitioner's misapprehension of

the terms cf the Sheriff's sale is not

Respondents' fault. It is evident that

Petitioner does not understand what a

-62-

conspiracy is and has no facts to back up

her allegations. Terry Young only found

out about the Sheriff's Sale by coinci-

dence when his secretary saw the notice

in the paper. (R5-153) Deposition

testimony reveals that Mr. Young did not

participate in the sale.

In short, Petitioner is not entitled

to pursue an action merely because she

believes, without factual support, that a

conspiracy existed. Therefore the Dis-

trict Court correctly dismissed and

granted summary judgment of Petitioner's

Claims under 42 USC §1983.

-63-

CONCLUSION

For the foregoing reasons, the Peti-

tion for Writ of Certiorari should be

denied.

Respectfully submitted,

William G. Osborne, Esquire Tanya M. Plaut, Esquire

538 East Washington Street 506 Mariposa Street

Orlando, Florida 32801 Orlando, Florida 32801

(407) 843-5211 (407) 425-6610

Attorney for Respondent, Attorney for Respondent,

Donald Simpson Tanya Plaut

Lavinia Dierking, Esquire Jeffrey M. Fleming, Esquire

1l East Pine Street Post Office Box 3427

Orlando, Florida 32801 Orlando, Florida 32802

(407) 425-1802 (407) 849-6459

Attorneys for Respondents, Terry C. Young

and Giles, Hedrick & Robinson, P.A.

Jeffrey G. Slater, Esquire James W. Glatt, Esquire

605 East Robinson Street 111 North Orange Avenue

Orlando, Florida 32801 Suite 2000

(407) 425-4251 Orlando, Florida 32801

Attorney for Respondent, (407) 841-7000

Lawson Lamar, Sheriff Attorney for Respondent,

of Orange County, Florida Minnie Bridges

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