Petition for Writ of Certiorari — Goad v. Rollins

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

“STOBER TERM, 1990

ROLAND L. GOAD

Petitioner

Vv.

JOHN ANDREW ROLLINS <A of

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROLAND L. GOAD, Petitioner

310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

(pro se)

March 11, 1991

QUESTIONS PRESENTED

1. Did the Court of Appeals err when

it dismissed Petitioner's timely appeal as

“patently frivolous” without making any

analysis of the eleven issues raised and

briefed by Petitioner? Was the appeal

frivolous?

2. Did the Court of Appeals err when

it imposed sanctions including injunctive

relief in favor of each respondent without

notice or opportunity for objection by

Petitioner?

3. Did the Court of Appeals err when

it denied a timely and unopposed request

that judicial notice be taken of another

pending action having a direct relation to

matters raised in an appellee brief?

PARTIES

Petitioner

Roland L. Goad

Respondents:

Private attorneys:

John Andrew Rollins

Steven C. Haley

Pierce P. Stacy III

Alfred W. Davis

Alfred W. Davis III

Private citizen:

Elna P. Davis

Local Government Unit:

Brazos County, Texas

Brazos County officials:

John Delaney (judge)

Ron Miller (sheriff)

Allie W. Lewis (bailiff)

Leticia Wilkerson (jailer)

Ron Huddleston (jailer)

John Godfrey (jailer)

Charles R. Blondeau

(deputy sheriff)

Michael A. Fitzgerald

(jailer)

Bill Cooley (commissioner)

Walter Wilcox ad

Billy E. Beard e

Milton Turner ®

iii

INDEX

SU T PAGE

Questions presented i

Parties ii

This Index iii

Citation to opinions below 2

Jurisdiction 3

Jurisdiction in the district court 3

Jurisdiction in the court of appeals 3

Constitutional provisions and “4

statutes that the case involves

Factual background 6

Proceedings in the district court 10

The pending Tucker Act claim 13

Proceedings in the court of appeals 16

Discussion 19

Reasons for granting the writ 27

APPENDIX SUBJECT PAGE

A Opinion, Court of appeals la

No. 90-2270, Jan. 18, 1991

B Final judgment, No. H-86-3433 9a

Goad v. Rollins, S.D. Tex. Feb.

1990

Order, No. H-86-3433, S.D. Tex. 10a

Feb. 28, 1990, dismissing action

Protective order, No. H-86-3433 16a

March ll, 1987

Order dismissing Judge Delaney 18a

H-86-3433, May 14, 1987

Order denying partial summary 22a

judgment, H-86-3433, May 14, 1987

Order striking pleadings, 23a

H-66-3433, April 17, 1989

Conference minutes and order 24a

H-86-3433, May 5, 1989

Excerpts, Brief in court of appeals 25a

No. 90-2270, April 17, 1990

Excerpts, Brief in court of appeals 36a

by Respondent Rollins, June 15, 1990

Excerpts “Request for Judicial . 37a

Notice", No. 90-2270, June 28, 1990

Excerpts of Tucker Act claim 39a

pending in U.S. Claims Court

Excerpts of brief of Judge 4la

Delaney, No. 90-2270, August 15, 1990

Excerpts, motion to strike 44a

No. 90-2270, August 28, 1990

Excerpts, original petition, No 46a

H-86-3433, September 8, 1986

Excerpts, answer, H-86-3433 52a

October 7, 1986

Q Stipulation, H-86-3433

March 2, 1987

R Excerpt, proceedings in H-86-3433

on May 5, 1989

S Excerpt, Affidavit, H-86-3433

October 6, 1989

T “Contempt Order and Commitment”

State court, September 13, 1985

U Excerpts, “Third Amended Motion

For Contempt” in State court

December 20, 1985

TABLE OF CASES

CASE

Pet. 8 U.S. 0 1

Ee ok Pallas _yoreay. 718 S.W.2d

776 (Tex.App.-1986

» 852 F.2d 806

- Ww » 397 U.S. 471

1970

» 781 F.24 1345 (CA9)

a U.S. L111 (1986)

Cullen, 791 F.2d 5 (CAl 1986

Estelle v. Gamble, 429 U.S. 97 (1976)

55a

Sila

Flaher . ah , 646 P.2d 179 24

Cal. 1982

pores v. Southern Farm Be reau Eafe 22

Ins. Co., 918 F.2d 534 (CAS 1990

a Vv. naugh, 835 F.2d 124 22, 23

Gt TID

ad x P , 690 S.W.2d 894 8

pyee To)

ad Vv. , 661 F.Supp. 13, 14

1073 (S. * Tex. i987),

vacated in pact, and remanded, 637 ¥.2 “P.24

1096 (CAFC 1987 table),

485 U.S. 906 (1988)

ad, 768 S.W.2d 356 (Tex. 14

TLE , cert. denied 110 S.Ct. 722

(1990)

Goad v. Un d » No. 90-72C 14, 15

U.S. Claims Court fe sian)

ustafson v. u -, 724 F.2d 19

75 ait 1983)

Lay v. Anderson, 837 F.2d 231 (CAS 22

1988)

sachu u . . 20

v. Ludwig, 426 U.S. 479 (1976

* * . 20

Co., 290 U.S. 484 tiosa}

Nietze v. Williams, 490 U.S. 319 24, 25

(1989)

vii

Sey teteon ye Patterson, 808 F.2d

357 (CAS 1986

rm TI)

447 U.S. 752 (1980)

n . » 837 F.2d 1245

CA5 1988

Stellyv. Commissioner, 604 F.24 871

CA5 1986

chited States v. Jones, 580 F.2d

219 (CA6 1978

Statutes

26 U.S.C. §§ 1254(1); 1291; 1331

& 1343

Fed. Rule Civ. P. 12(b)(6)

Fed. Rule App. P. 38

Fed. Rule Evid. 201(d) & (f)

Martineau,

L.J. 845

Martineau and Davidson,

viii

OTHER TEXTS

J. Weinstein & M. Berger,

Weinstein's Evidence, # 201[06) (1976)

21 Wright and Grahan,

Practice and Procedure, 110 (1977)

Note:

» 67 Tex.L.Rev. 1 (1988

TIT Duke

Uncertain Federal Response,

IN THE

SUPREME COURT OF THE UNITED STATES

ROLAND L. GOAD, Petitioner,

Vv.

JOHN ANDREW ROLLINS, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Roland L. Goad, respect-

fully prays that a writ of certiorari issue

to review the opinion and order of the

United States Court of Appeals for the

Fifth Circuit entered in this proceeding

on January 18, 1991, No. 90-2270. [App. A.

Pp. la to 8a} .

/ References are to the appendix of this pet-

tion.

CITATION TO OPINIONS BELOW

This civil rights action was filed in the

United States District Court for the South-

ern District of Texas, Houston Division, on

September 8, 1986. [App. 46-5la]. A final

order dismissing the action was entered by

the district court on February 28, 1990.

[App. 9a]. Petitioner timely appealed the

dismissal to the United States Court of

Appeals for the Fifth Circuit in which

eleven (11) issues were raised and briefed.

[App. 25-35a]. The Fifth Circuit dismissed

the appeal as “patently frivolous” but made

no analysis of any of the eleven issues

raised. [App. 1-8a].

Petitioner seeks a writ of certiorari in

this Court to review the action of the

United States Court of Appeals for the Fifth

Circuit in its decision announced on January

18, 1991.

JURISDICTION

On January 18, 1991 the United States

Court of Appeals for the Fifth Circuit

Gismissed Petitioner's timely appeal.

(App. A]. A request for rehearing was not

made. This petition for writ of certiorari

will have been filed in this Court before

the expiration of 90 days from January 18,

1991; and, this Court's jurisdiction to

consider this petition is invoked under the

provisions of 28 U.S.C. § 1254(1).

JURISDICTION IN THE DISTRICT COURT

Jurisdiction in the district court was

invoked pursuant to 28 U.S.C. 8§ 1331 and

1343. [App. 46a]

JURISDICTION IN THE COURT OF APPEALS

Jurisdiction in the United States Court

of Appeals for the Fifth Circuit was invoked

CONSTITUTIONAL PROVISIONS AND

STATUTES THAT THE CASE INVOLVES

28 U.S.C. § 1254(1):

Cases in the courts of appeals may be rev-

iewed by the Supreme Court by the follow-

ing methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or crim-

inal case, before or after rendition of

judgment or decree.

28 U.S.C. § 1291

The courts of appeal (other than the United

States Court of Appeals for the Federal Cir-

cuit) shall have jurisdiction of appeals

from all final decisions of the district

courts of the United States, the United

States District Court for the District of

the Canal Zone, the District Court of Guan,

and the District Court of the Virgin Islands,

except where a direct review may be had in

the Supreme Court. The jurisdiction of the

United States Court of Appeals for the Fed-

eral Circuit shall be limited to the juris-

diction described in sections 1292(c) and

(ad) and 1295 of this title.

28 U.S.C. § 1331

The district courts shall have original jur-

isdiction of all civil actions arising under

the Constitution, laws, OF treaties of the

United States.

28 U.S.C. § 1343(a)(3)

(a) The district courts shall have original

jurisdiction of any civil action authorized

by law to be commenced by any person: (3)

To redress the deprivation, under color of

any State law, statute, ordinance, regul-

ation, custom or usage, of any right, priv-

ilege or immunity secured by the Constitut-

ion of the United States or by any Act of

Congress providing for equal rights of

citizens or of all persons within the

jurisdiction of the United States.

Pederal Rule Appellate Procedure 38:

If a court of appeals shall determine that

an appeal is frivolous, it may award just

damages and single or double costs to the

appellee.

Pederal Rule of Evidence 201(d):

A court shall take judicial notice if req-

wested by a party and supplied with the

necessary information.

Pederal Rule of Evidence 201(f):

Judicial notice may be taken at any stage

of the proceeding.

FACTUAL BACKGROUND

On March 8, 1983, Respondent John Andrew

Rollins, acting on behalf of Mary Beth

Goad, filed criminal contempt charges in

which — Petitioner had failed to

deliver “retirement benefits” as ordered in

a 1980 decree of divorce. Petitioner was not

served with the contempt charges. [App. 61a].

Amended motions were filed on October 31,

1984 and on November 21, 1984 asserting

charges of criminal contempt and seeking

punishment that, if granted, would have agg-

regated to 23 years in prison plus a fine

of $23,000. Petitioner made a timely request

for trial by jury on these serious criminal

charges and immediately thereafter on Dec-

ember 20, 1984 a third amended motion for

contempt was filed that deleted all references

to criminal charges but purported to allege

a single act of “civil” contempt from

January 1981 through January 3, 1985 - a

period that extended fourteen days beyond

the date a show cause order was served on

Petitioner. [App. 75a].

On January 3, 1985 a purported contempt

hearing was had before Judge JOHN DELANEY

without a jury solely on the basis of the

"civil" contempt motion filed on December

20, 1984. [App. 74a].

On January 3, 1985, Judge Delaney declared

from the bench that he had found Petitioner

in “civil” contempt of court and verbally

ordered his immediate arrest and incarcer-

ation in the Brazos County jail. (App. 20a,

47-48a 415, 52a 415, 62a] Judge Delaney's

verbal arrest order has never been memorial-

ized in any written court order [App. 62a]

however a falsified court order was entered

in the minutes of the 272nd District Court

on January 7, 1985 - the fifth day of Pet-

itioner's incarceration in the Brazos County

jail. (App. 50a #19, 53a 419, 62-65a)

A capias issued with the falsified court

order on January 7, 1985, on which false

information was entered showing an arrest

on January 7, 1985 has never been filed

in the court records of Brazos County.

[App. 65a). There is no court record that

shows when, where, how, or by whom Petit-

ioner was arrested or if he has ever been

found by the sheriff as regards the capias

issued on January 7, 1985.

A petition for writ of habeas corpus was

denied. Ex Parte Goad, 690 S.W.2d 894 (Tex.

1985).

A nev motion for “civil” contempt was made

on August 29, 1985 for Petitioner's failure

to deliver “benefits” he had received "from,

and including, December 21, 1984 until

April 15, 1984." - An impossible period of

time. [App. 66a]. A “show cause” order and

notice from the clerk informed Petitioner

that he had been charged with "civil" cont-

empt for failure to deliver “benefits” he

——

had received “from, and including, December

21, 1985 until April 15, 1985." - Such imp-

ossible dates appearing in four places on

the show cause order and notice. Later, on

September 13, 1985, Judge Delaney signed a

purported “Judgment of Contempt and Order

of Commitment” [App. 68-73a] directing the

incarceration of Petitioner in the Brazos

County jail until he delivered those "bene-

fits” received “from and including December

21, 1985 until April 15, 1985." Such imposs-

ible dates appearing in five places on the

order. [App. 68a (once), 70a (once), 7la

(twice) and 72a (once) ]}.

Those facts recited above form the basis of

just one of the nine causes of action that

were presented in the civil rights suit

filed on September 8, 1986, No. H-86-3433,

styled Goad v. Rollins, et al. [App. 0,

46-5la]}.

PROCEEDINGS IN THE DISTRICT COURT

In this civil rights action nine causes

of action were asserted against Brazos

County, Texas and twenty individuals. [App.

27a). The case was filed on September 8,

1986 ane assigned to Judge Gabrielle K.

McDonald who later resigned her office

in August 1988. It was then assigned to

Judge Simeon T. Lake who had been appointed

to the Bench on September 2, 1988.

The case accumulated 158 docket entries

during the 42 months it remained in the

district court, and the case accumulated

about three cubic feet of documentation in

six volumes of record.

The district court proceedings, as adumb-

rated in the court of appeals, are set out

in the appendix [App. 27a-35a].

Brazos County filed its answer [App. 52a]

and Judge Delaney moved for dismissal as to

him personally on his claim of judicial

immunity. [App. 27a #4] after which Petit-

ioner moved for partial summary judgment.

(App. 27a #5]. Judge Delaney requested and

was granted a protective order excusing

him from responding to the motion for sum-

mary judgment [App. 16a]. Judge Delaney

was dismissed as a defendant but the order

Was not certified as a final appealable

order [App. 18a] and the motion for summary

judgment was denied but no findings of fact

Or conclusions of law were made concerning

the considerable documentary evidence filed

by the parties in support of, and in Oppos-

ition to the motion. [App.29a *9).

Brazos County stipulated that it was the

real party in interest as the suit concerned

its agents and employees. [App. 55].

On May 5, 1989 the district court denied

Petitioner's motion for leave to amend his

complaint but made no explanation for that

refusal. [App. 24a].

During 1989 some, but not all, of the

defending parties moved for dismissal or

summary judgment [App. 30-32a]. Petitioner

responded in opposition by an affidavit

controverting the "facts" claimed in the

motions [App. 33a €17, 60a-67a).

The district court conducted a “conference

hearing” on May 5, 1989 and “docket call”

on October 13, 1989 at which time it dism-

issed the entire action except for one

Claim against Sheriff Miller. That last

item was dismissed in the final order ent-

ered on February 28, 1990.

No dispositive motion was ever filed on

behalf of Brazos County or Respondents

Cooley, Wilcox, Beard or Turner. Nonetheless,

they were all sua sponte granted summary

judgment dismissals without any advance

notice by the court of its intentions.

[App. 13a].

THE PENDING TUCKER ACT CLAIM

This civil rights action was brought in the

United States District Court for the South-

ern District of Texas, Houston Division, on

September 8, 1986. Docket Number H-86-3433.

Simultaneously a Tucker Act claim was

brought against the United States. Docket

Number H-86-3432. After the Tucker Act case

was filed, the claims aggregated to more than

$10,000 thereby depriving the district court

of its jurisdiction. In dismissing the action,

the court refused to transfer it to the

U.S. Claims Court. Even though jurisdiction

was lacking, the court rendered a declaratory

judgment and granted the Government's motion

for summary judgment and imposed sanctions.

On appeal the Federal Circuit vacated the

declaratory judgment and remanded with instr-

uctions to vacate the summary judgment and to

enter orders of dismissal but affirmed the

imposition of sanctions. Certiorari was

denied. Goad v. United States, 661 F.Supp.

1073 (S.D.Tex. 1987), aff'd in part, vaca-

ted in part, and remanded, 837 F.2d 1096

(CAFC 1987) (table), cert. denied, 485 U.

S. 906 (Feb. 29, 1988). Immediately there-

after, on March 17, 1988 an original action

was initiated in state court seeking an

order quashing, dissolving and recalling a

“writ of garnishment” honored by the Air

Force on June 28, 1985 - the underlying

cause of the Tucker Act claim. That action

was dismissed for want of jurisdiction and

sanctions were imposed; affirmed on appeal

and certiorari denied. Goad v. Goad, 768

S.W.2d 356 (Tex.App.-1989), cert. denied,

110 S.Ct. 722 (January 8, 1990). Immediately

thereafter, on January 22, 1990, an original

action was filed in the United States Claims

Court and Mary Beth Goad was “noticed in"

as a party. Docket No. 90-72C [App. L].

In the Claims Court a motion for summary

judgment has been filed by Petitioner

which is opposed by the Government's oblig-

atory motion to dismiss for failure to

state a claim. The case has been fully

briefed and was taken under submission on

September 17, 1990. A decision is expected

at any time now, perhaps as this case is

under consideration in this Court. The

issues presented in the Claims Court are:

“Mary Beth Goad does not ‘own’ a portion

of Plaintiff's retired pay ...

Until the Air Force has been served with

‘legal process’ issued by a court of comp-

etent jurisdiction, there exists no lawful

authority for the Government to pay funds

directly to Mary Beth Goad out of the

Department of Defense Military Retirement

Fund.”

App. L, p. 40a.

Rollins and

’

—

a |

—

attention of the cour

ce?

—

a |

“"

’

the issues then before it by referr

-«

Petitioner's earlier actions under the

Tucker Act. [App. 36a] Unfortunately, they

succeeded.

In an effort to prevent the court's attent-

ion from being diverted away from the real

issves, Petitioner filed a “Request for

Judicial Notice” [App. 37a] to assure that

the court of appeals would not inadvertently

take any action trenching upon the exclusive

jurisdiction of the United States Claims

Court. Attention of the court was directed

to the pending Tucker Act case in the Claims

Court where those issues raised in the

Rollins/Haley brief were under active review

by a court of competent jurisdiction.

[App. 39-40a]. The request for judicial

notice was denied. [App. 7a).

On August 15, 1990 Judge Delaney filed his

answer in the court of appeals in which he

mis-stated significant facts relating to the

case. [App. 4la]. Petitioner's motion to

strike out and disregard those parts of the

Judge's brief that misrepresented facts or

authorities relative to the case was denied

by the court of appeals. [App. 7a].

The court of appeals made no findings or

analysis of any of the eleven issues pres-

ented but instead asserted "This is the

sixth lawsuit filed by Goad relating to

the military retirement benefits." [App. 3a)

and "“Goad's campaign to prevent his former

wife from receiving what is rightfully hers,

which succeeds only in wasting scarce jud-

icial resources and harassing innocent cit-

izens must cease.” [App. 7a].

In the district court, Respondents had

sought a permanent injunction against the

Petitioner which was specifically rejected.

[App. 59a). “([T)here's not a factual

record yet on which to enjoin the plaintiff

from filing further lawsuits againts your

clients." Id. No cross-appeal was filed.

In disposing of this case the court of

appeals sua sponte and without motion or

notice granted the very injunction that

had been rejected by the district court.

[App. 7-8a).

Discussion:

Time for taking judicial notice has been

authoritatively analyzed in 21 Wright and

Graham, Federal Practice and Procedure, §

5110 (1977). That treatise states that jud-

icial notice is proper in post-trial proc-

eedings. It also observes that the provisions

of Rule 201(f) the court “may” take notice

at any time is limited by Rule 201(d), which

states, "A court shall take judicial notice

if requested by a party and supplied with the

necessary information.” Also, a court of

appeals may take judicial notice for the first

time on appeal. Gustafson v. Cornelius Co.,

724 F.2d4 75, 79 (CA8 1983); City of Dallas v.

Moreau, 718 S.W.2d 776, 781 (Tex.App.-1986).

The Advisory Committee Note to 201(f) indic-

ates that judicial notice is appropriate "in

the trial court or on appeal.” United States

v. Jones, 580 F.2d 219, 223 (CA6 1978); J.

Weinstein & M. Berger, Weinstein's Evidence

@ 201[06] (1976). Furthermore, federal

courts, in appropriate circumstances, may

take notice of proceedings in other courts,

both within and without the federal judic-

ial system, if those proceedings have a

direct relation to matters at issue. E. I.

Du Pont Nemours & Co. v. Cullen, 791 F.2d

5, 7 (CAl 1986).

The rule is well established that without

the filing of a cross-appeal, an appellee

“may not attack the decree with a view either

of enlarging his own rights thereunder or of

lessening the rights of his adversary, whe-

ther what he seeks is to correct &n error or

to supplement the decree with respect to a

matter not dealt with below.” Massachusetts

Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479,

481 (1976); Morley Construction Co. v. Mary-

and ua -, 290 U.S. 484, 497 n.1

(1934); Canter v. American & Ocean Ins. Co.,

3 Pet. (28 U.S.) 307, 318 (1830).

A proposal to amend Rule 38 was advanced

in Martineau, Frivolous Appeals: The Uncer-

tain Federal Response, 1984 Duke L. J. 845.

Professor Martineau urged that the test of

frivolity be an objective one, and that not-

ice and an opportunity for hearing should

be provided before the imposition of sanct-

ions. In a second article co-authored by

Professor Martineau, he undertook a thorough

examination of the standard applied by the

different circuits. The courts were divided

into groups of aggressive circuits that reg-

ularly assessed sanctions, the reluctant

circuits that almost never assessed them and

the uncertain circuits that had not yet ad-

opted a clear stance. It was concluded that

the circuits should adopt predictable stand-

ards that would ensure like treatment of like

cases. See: Martineau and Davidson, Frivol-

he dera : wv

of the Circuits, 34 Amer. U. L. Rev. 603

(1985).

It has become standard procedure in the

Fifth Circuit to sua sponte dismiss civil

rights cases and impose sanctions on pro se

appellants. See Foret v. Southern Farm Bur-

eau Life Ins. Co., 918 F.2d 534, 539 (CAS

1990); Coghlan v. Starkey, 852 F.2d 806, 809

(CAS 1988). Im Gabel v. Lynaugh, 835 F.2d

124 (CAS 1988) (per curiam) a panel of the

court vented its frustration about the large

number of frivolous appeals especially by

prisoners acting pro se. The court observed

“pro se civil rights litigation has become

a recreational activity for state prisoners

in our Circuit." 835 F.2d at 125 n.1. In Lay

v. Anderson, 837 F.2d 231 (CA5 1988) (per

curiam) the court taxed costs against a pro

se prisoner and in so doing emphasized that

the prisoner had “filed at least a half doz-

en petitions for writ of habeas corpus and

several prisoner civil rights cases." Id. at

232.

In several cases neither the court of

appeals nor the district court appear to

have given a pro se appellant any notice

at all of the possibility of sanctions, and

yet the court of appeals has imposed them

routinely. See, e.g., Simmons v. Poppell,

837 F.2d 1243 (CAS 1988) and Gabel v. Lyn-

augh, 835 F.2d 124 (CA5 1988). In these

two cases prison officials were ordered to

withdraw moneys from prisoners' trust fund

accounts to satisfy a monetary sanction. In

other cases prisoners have been warned that

the courthouse door will be shut. Patterson

v. Patterson, 808 F.2d 357, 358 (CAS 1986)

and those doors have been shut. Stelly v.

Commissioner, 804 F.2d 871 (CA5 1986) and

of course this case. The Fifth Circuit has

relied on its inherent power as a court

rather that any rule or statute for the

authority to impose some of these sanctions.

Also relying on its “inherent power” the

Fifth Circuit has opted not to publish

several dozen of its decisions imposing

sanctions. The court has sanctioned many

litigants without letting the public know

what it was doing. At times the sanction

decision has been published, but the prior

notice or warning was neither published nor

attached as an appendix. See: Cogan, The

h Ww nd

42 Sw.L.J. 1011, 1020 (1989).

Courts’ sua sponte actions are strongly

disfavored because they lack the procedural

protections inherent in the adversarial pro-

cess. See Flaherty v. Flaherty, 31 Cal. 3d

637, 652, 183 Cal.Rptr. 508, 517-8, 646 P.2d

179, 188-89 (1982). For example in Nietze v.

Williams, 490 U.S. 319 (1989) this Court

discussed the problems created by sua sponte

action. Id. at 329-330. However this Court

declined to address the "permissive scope,

if any,” of the practice. Id. at 329 n.8.

In Estelle v- Gamble, 429 u.S. 97 (1976),

this Court reversed and remanded the sua

sponte dismissal under Rule 12(b)(6) without

commenting on the procedural aspects of the

case. Id. at 108. However, Justice Stevens

noted that this Court's action should not

be taken as an endorsement of the practice

since the question was not raised by the

parties. Id. at 112 n.5 (Stevens, J-» dis-

senting).

The use of injunctions against future claims

as employed in this case, has troubled some

of the circuits. See: DeNardo v. Murphy:

781 F.2d 1345, 1348 (CA9) cert. denied, 476

u.S. Ll11 (1986) and Procup V- Strickland:

792 F.2d 1069, 1071 (CAL1 1986) (en banc)

(vacating injunction against party's filing

without attorney); also Note: Preserving Pro

n n an e an-

tions, 67 Tex.L.Rev- 351, 387 (1988).

Due process at the very least requires

a court to notify, by means of an order to

show cause, the person against whom it is

considering the imposition of a sanction.

See Roadway Express, Inc. v. Piper, 447 U.S.

752, 767 n.14 (1980), “The due process con-

cerns posed by an outright dismissal are

plainly greater that those presented by

assessing counsel fees against lawyers.” Id.

Because their inherent powers are shielded

from direct democratic control, however, the

court must exercise these powers with res-

traint and control. 447 U.S. at 764.

Because the court below did not reach any

of the eleven issues raised in the appeal nor

express any opinion concerning them it is

“appropriate to remand the case rather than

deal with the merits of th[ose] question(s)

in this Court.”

Dandridge v. Williams, 397 U.S. 471, 476 n.6

(1970).

The Fifth Circuit's refusal to address any

REASONS FOR GRANTING THE WRIT

of the issues raised in the appeal, its sua

Sponte issuance of an injunction, and its

unexp/ained refusal to take mandatory

judicial notice of a pending proceeding in

the United States Claims Court all combine

to present a situation in which that court

has so far departed from the accepted and

usual course of judicial proceedings as to

call for the exercise of this Court's power

of supervision to review this case by way

of the requested writ of certiorari.

Respectfully submitted,

March 11, 1991.

ROLAND L. GOAD, Petitioner

310 Sara Lane

Huntsville, Texas 77340

(409) 291-2430

App. A la

Opinion of the United States Court of App-

eals, Fifth Circuit, entered on January 18,

1991, from which Petitioner seeks writ of

certiorari in this Court. This case has

been published and is found in the Federal

Reporter (2nd), Volume 921, page 69 .

Roland Lee GOAD, Plaintiff-Appellant,

Vv.

John Andrew ROLLINS, et al., Defendants-

Appellees

No. 90-2270

Summary Calendar

United States Court of Appeals,

Fifth Circuit

Jan. 18, 1991.

Before POLITZ, DAVIS and BARKSDALE,

Circuit Judges.

POLITZ, Circuit Judge:

Roland Lee Goad invoked 42 U.S.C. §§ 1983,

1988 against multiple defendants after his

incarceration for contempt of court. The

district court dismissed the claims as to

all defendants by granting motions for sum-

mary judgment on several grounds, including

judicial immunity, failure to state a claim

App. A (cont'd) 2a

on which relief can be granted, and failure

to plead with the required specificity. Goad

timely appeals. Finding this appeal to be

frivolous we dismiss it, prohibit further

like filings except as expressly specified,

and remand to the district court for impos-

ition of monetary sanctions against Goad.

Background

Roland and Mary Beth Goad were divorced in

1980. Among other things Mary Beth Goad was

awarded 12/27 of Roland Lee Goad's Air Force

retirement benefits. In January 1985, after

refusing to pay the required portion of the

retirement pay to his former wife, Goad was

found to be in contempt of court and was

placed in the Brazos County jail. Upon pay-

ment of $4,000 into the registry of court

Goad was released in October of 1985.

The instant action is to recover actual and

punitive damages for alleged violations of

Goad's constitutional rights as a result of

App. A (cont'd) 3a

the judgment of civil contempt and the sub-

sequent incarceration. This is the sixth

lawsuit filed by Goad relating to the mil-

itary benefits. Sanctions previously have

been awarded against Goad in both state and

federal court as a result of his litigious-

ness. The state court ordered him to pay

twice the costs of appeal because of his

persistence in pursuing the matter in spite

of adverse judicial rulings.

In 1987 Goad brought suit against the

United States challenging the withholding,

by the Air Force Accounting and Finance

Center (AFAFC), of the portion of the pay-

ment due Mary Beth Goad. Goad v. United

States, 661 F.Supp. 1073 (1987), affirmed

in part, 837 F.2d 1096 (Fed.Cir.), cert.

denied, 485 U.S. 906, 108 S.Ct. 1079, 99

L.Ed.2d 238 (1988). In that litigation the

district court imposed monetary sanctions

and forbade Goad to make any further filings

App. A (cont'd) 4a

until the fine was paid, stating

(t]his court cannot help but note and dep-

lore the meanness of spirit with which this

action is brought. Mr. Goad's persistent

attempts to strip Mrs. Goad of the property

granted to her by the divorce decree and

to punish the AFAFC for honoring that dec-

ree can only be characterized as harass-

ment. 661 F.Supp. at 1081.

On appeal we affirmed the imposition of san-

ctions. Goad, 837 F.2d at 1096.

In the case now before us, Goad named as

defendants: (1) Mary Beth Goad; (2) John

Rollins, Steven Haley, Pierce Stacy III,

Alfred Davis, and Alfred Davis III, attorneys

who represented Mrs. Goad at various times

during the divorce proceedings in state

court; (3) Elna Davis, an alleged coconsp-

irator and a private individual who loaned

Mrs. Goad money for legal fees; (4) Judge

John Delaney, judge presiding over the con-

tempt proceedings; (5) Allie Lewis, Bailiff

to Judge Delaney; (6) Ron Miller, Sheriff of

Brazos County; John Haskell (dismissed by

App. A (cont'd) Sa

Goad), Leticia Wilkerson, Michael Fitzger-

ald, Ron Huddleston, John Godfrey, and

Charles Blondeau, corrections officers,

administrators, or other employees of the

Brazos County sheriff's department; (8) Bill

Cooley, Walter wisee, Billy Beard, and

Milton Turner, Brazos County commissioners;

and added by petition, Brazos County.

Goad alleges nine causes of action agrinst

the various defendants: (1) deprivation of

liberty without due process of law; (2) dep-

rivation of constitutional rights —_ on

the failure of Brazos County commissioners

to provide a safe and suitable jail; (3)

violation of constitutional rights based on

the failure of Sheriff Miller to provide a

safe and suitable jail; (4) unlawful search

and invasion of privacy based upon an alle-

ged warrantless search of his personal eff-

ects by the sheriff; (5) wrongful execution,

levy, and conversion: (6) malicious abuse of

App. A (cont'd) 6a

civil process, conversion, and attempted

extortion; (7) civil conspiracy and denial

of his right to a jury trial and due process;

(8) wrongful garnishment; and (9) wrongful

civil proceedings and wrongful injunction.

The trial court granted summary judgment in

favor of all defendants and Goad timely

appeals.

Analysis

In his appeal Goad asserts every conceivable

challenge to the actions of the trial court.

He contests everything, including the dis-

missal of the claims against Judge Delaney,

his courtroom staff, and the corrections

officials based on judicial immunity; the

failure to find the actions of private att-

orneys to be state action; and the dismissal

of counts as insufficient to support a claim

of a deprivation of a constitutional right

under section 1983. He even challenges the

application of a localrule that views the

App. A (cont'd) 7a

failure to respond to a motion for summary

judgment as a representation of no opposit-

ion.

This appeal is patently frivolous and is

dismissed as such. Loc.R. 42.2. The motions

seeking to strike portions of Judge Delaney's

brief and requesting that the court take jud-

icial notice of adjudicative facts are den-

ied. Goad's campaign to prevent his former

wife from receiving what is rightfully hers,

which succeeds only in wasting scarce judi-

cial resources and harassing innocent citi-

zens must cease. Toward that end, monetary

sanctions will be imposed against him in

favor of all appellees in accordance with

Rule 38 of the Federal Rules of Appellate

Procedure. We remand to the district court

for the setting of the proper amount as to

each appellee. We further direct all clerks

of court under the jurisdiction of this

court to refuse to accept any further filings

5 al cl me

App. A (cont'd) 8a

from Roland Lee Goad which in any way inv-

Olve the payment of a portion of his Air

Force retirement benefits to his former

wife unless a judge of this court, or a

judge of the forum district, first specifi-

cally authorized the filing.

APPEAL DISMISSED, Loc.R. 42.2; sanction

order ENTERED; matter REMANDED for entry

of further sanctions under Fed.R.App.P. 38.

App. B 9a

Final Order in the trial court (S.D. Texas)

entered on February 28, 1990, dismissing the

civil rights suit filed by petitioner on

September 8, 1986, ad v. Rollins, Civil

Action No. H-86-3433. [R. 9]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD, §

Plaintiff § Civil Action No.

§ H-86-3433

Vv. §

JOHN ANDREW ROLLINS, §

Defendant. §

FINAL JUDGMENT

In accordance with the Court's Order, this

action is DISMISSED, and all costs are adj-

udged against plaintiff.

This is a FINAL JUDGMENT.

SIGNED at Houston, Texas, this 22nd day of

February, 1990.

(signed)

SIM LAKE

UNITED STATES DISTRICT

JUDGE

ee ee a ee

oe te eet B

App. C 10a

Order in the trial court (S.D. Texas) entered

on February 28, 1990, dismissing Civil Action

H-86-3433, styled Goad v. Rollins. [R. 10-13].

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD, §

Plaintiff, §

§ CIVIL ACTION NO.

Vv. §

§ H-86-3433

JOHN ANDREW ROLLINS, §

Defendant. §

ORDER

This action arises from the plaintiff's inc-

arceration for civil contempt in the Brazos

County Jail. Plaintiff has sued the defend-

ants under 42 U.S.C. §§ 1983 and 1988 for

allegei violations of plaintiff's constitu-

tional rights stemming from his incarcerat-

ion. Plaintiff has also asserted related

pendent state law claims against the defend-

ants. Plaintiff's Amended Petition (Docket

Entry No. 94) alleges nine Causes of Action:

(1) deprivation of liberty without due pro-

cess and the common law tort of false impri-

App. C (cont'd) lla

sonment, naming Judge Delaney, Lewis, Miller,

Wilkerson, Huddleston, Godfrey, Haskell amd

Fitzgerald as defendants; (2) cruel and un-

usual punishment, denial of equal protection,

and deprivation of his First, Fourth, Fifth,

Eighth and Fourteenth Amendment rights based

upon the Brazos County Commissioner's failure

to provide a safe and suitable jail, naming

Cooley, Wilcox, Beard and Turner as defend-

ants; (3) violation of the same constitutional

rights based upon the failure of the Brazos

County Sheriff to maintain a safe and suit-

able jail, naming Miller as defendant; (4)

unlawful search and invasion of privacy based

upon the defendant sheriffs' and defendant

jailers' search of his private papers and

other personal effects without a warrant or

probable cause, naming Miller, Godfrey, and

Rollins as defendants; (5) wrongful execution,

levy and conversion, naming Miller, Blondeau,

and Rollins as defendants; (6) malicious

Se ee

“+ ee te EE AE Ee ee

App. C. (Cont'd) 12a

abuse of civil process, conversion, and att-

empted extortion, naming Rollins, Haley and

Mrs. Goad as defendants; (7) civil conspir-

acy and denial of his right to jury trial and

due process, naming Delaney, Rollins, Haley,

and Mrs. Goad as defendants; malicious abuse

of civil process and wrongful garnishment,

naming Rollins and Haley as defendants; and

(9) wrongful civil proceedings and wrongful

injunction, naming Rollins, Mrs. Goad, Stacy,

Alfred Davis, Alfred Davis III, and Elna P.

Davis as defendants. Although the complaint

also names Brazos County as a defendant and

designates Judge Holmgreen to be served with

process, it does not allege an independent

cause of action against the County. The Court

therefore assumes that plaintiff has sued the

County for the acts of its employees, as all-

eged in the plaintiff's lst, 2nd, 3rd, 4th

and 5th causes of action, in their official

capacities. See Brandon v. Holt, 105 S.Ct.

873, 878 (1985).

App. C (Cont'd) 13a

The Court has dismissed the following causes

of action against the defendants:

(1) In its order of May 14, 1987, the

(2)

(3)

(4)

Court granted the motion of Judge

Delaney for dismissal of plaintiff's

lst and 7th causes of action. (Docket

Entry No. 80)

In its order of May 5, 1989, the Court

granted the motion of Defendants Stacy,

A. Davis, and A. Davis III for summary

judgment as to plaintiff's 9th cause

of action. (Docket Entry No. 133)

In its order of February 13, 1987, the

Court grantec plaintiff's motion to

dismiss defendant John Haskell. (Docket

Entry No. 72)

In its order of October 13, 1989,

(Docket Entry No. 149) for reasons

stated in open court on the record

the Court

(a) granted the motion of defendants

Rollins and Haley for summary judg-

ment as to plaintiff's 4th, 5th, 6th,

7th, 8th, and 9th causes of action;

(b) granted the motion of defendants

Lewis, Miller, Wilkerson, Huddle-

ston, Godfrey, Blondeau, and Fitz-

gerald for summary judgment as to

plaintiff's lst, 4th and 5th

causes of action;

for defendants Cooley, Wilcox, Beard,

and Turner as to plaintiff's 2nd

cause of action.

App. C (Cont'd) l4a

(d) granted sua sponte summary judgment

for defendants Brazos County and

) Holmgreen as to plaintiff's lst, 2nd,

3rd, 4th, and 5th causes of action;

and

(e) granted sua sponte summary judgm-

ent for defendant Mrs. Goad as to

plaintiff's 6th, 7th and 9th causes

of action.

Before the Court is defendant Miller's motion

for summary judgment as to the plaintiff's

third cause of action. More than 30 days

have passed since the motion was filed with

the Clerk of the Court on January 10, 1990.

The Clerk's records reflect that the plaintiff

has not responded to this motion. Pursuant

to Local Rule 6.E failure to timely respond

to an opponent's motion is taken as a repres-

entation of no opposition. After careful con-

sideration, the defendant's motion for summary

judgment as to the plaintiff's third cause of

action is GRANTED. Since plaintiff has no rem-

aining causes of action against the defend-

ants, this case is DISMISSED.

App. C (Cont'd) 15a

SIGNED at Houston, Texas, this 22nd day

of February, 1990.

(signed)

SIM LAKE

UNITED STATES DISTRICT

JUDGE

es _

ee ae ee aba

—*———~ ——- — <6 a ote 60

App. D 16a

Protective Order in the trial court (S.D.

Texas) entered on March 11, 1987, excusing

Judge Delaney from any requirement to

respond to Petitioner's motion for partial

summary judgment. [R. 615]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD §

Plaintiff ; CIVIL ACTION NO.

v. : H-8€-3433

JOHN ANDREW ROLLINS §&

ET AL. §

PROTECTIVE ORDER

CAME ON for consideration the Motion for

Protective Order of Judge John Delaney filed

pursuant to Rule 26(c), Federal Rules of Civil

Procedure and pursuant to the dictates of

Elliot v. Perez, 751 F.2d 1472 (5th Cir.

1965).

The Court finds that said Motion is merit-

Crious and should be granted and it is

therefore

ORDERED that all discovery, including any

requirement to respond to Plaintiff's Motion

App. D (Cont'd) 17a

for summary Judgment, pertaining to Judge

Delaney be and is hereby stayed pending a

ruling by this Court on the immunity def-

enses raised by Defendant Judge.

SIGNED and ORDERED this the ll day of

March, 1987.

s/Gabrielle K. McDonaleé

U. S. District Judge

i te

Oe le cally ~

App. E 18a

Order in the trial court (S.D. Texas) on

May 14, 1987, dismissing Defendant Judge

John Delaney based on his claim of

judicial immunity. [r. 461-463)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD, §

Plaintiff, C.A. NO.

JOHN ANDREW ROLLINS,

et al., Defendants.

Vv. § H-86-3433

Pending before the Court is the Motion to

Dismiss filed by Judge John Delaney. Having

considered the arguments of the parties and

the applicable law, the Court is of the Oop-

inion that the Motion should be GRANTED.

A judge who acts within his or her judicial

jurisdiction enjoys absolute immunity from

liability. Stump v. Sparkman, 435 U.S. 349,

98 S.Ct. 1099 (1978). In the Fifth Circuit,

there are four factors to consider when det-

ermining whether an act is "Judicial": (1)

App. E (Cont'd) 19a

whether the act complained of is a normal

judicial function; (2) whether the acts occ-

urred in the courtroom or appropriate adjunct

spaces such as the judge's chambers; (3)

whether the controversy arose out of a case

pending before the court; and (4) whether the

acts arose directly out of a visit to the

judge in his official capacity. Adams v. Mc-

Ilheny, 764 F.2d 294, 297 (Sth Cir. 1985).

Plaintiff had been ordered to pay a portion

of his military retirement benefits to Mary

Beth Goad pursuant to a divorce decree. He

attempted to have the division of his military

retirement benefits invalidated on appeal.

These appeals were rejected at every level

from the Texas Supreme Court - Goad v. Goad,

22 Tex. Sup. Ct. J. 244 (Feb. 2, 1984), to

United States Supreme Court - Goad v. Goad,

__.U.S.__, 105 S.Ct. 95 (1984) (writ of cert-

iorai denied).

App. E (Cont'd) 20a

Mary Beth Goad brought an action in state

court to enforce the provision of the divo-

rece decree awarding her a portion of Plain-

tiff's military benefits. A trial on Ms.

Goad's Motion for Contempt was held before

the Honorable John Delaney, 272nd Judicial

District Court of Brazos County, Texas. Mr.

Goad was committed to jail upon Judge Dela-

ney*s verbal order on January 3, 1985. The

Order was reduced to writing, executed, and

filed on January 7, 1985.

Based on the facts of this case, the actions

of Judge Delaney were judicial acts performed

within his jurisdiction. Defendant's use of

the contempt power is a normal judicial

function. Moreover, Plaintiff's contacts

with Judge Delaney occurred while Defendant

was presiding in his official capacity. Con-

sequently, the Defendant is immune from suit

in this action.

App. E (Cont'd) 2la

Accordingly, it is ORDERED, ADJUDGED, and

DECREED that Defendant's Motion to Dismiss

be and hereby is GRANTED.

The Clerk shall file this Order and provide

a true copy to counsel for all parties.

DONE at Houston, Texas, this 14 day of

May 1987.

(signed)

GABRIELLE K. MCDONALD

UNITED STATES DISTRICT

JUDGE :

App. F 22a

Order in the trial court (S.D. Texas) on

May 14, 1987, denying Petitioner's Motion

For Partial Summary Judgment. [R. 459]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD, §

CIVIL ACTION NUMBER

vs H-86-3433

JOHN ANDREW ROLLINS,

ET AL

ORDER

On the 14 day of May » 1987, came on

to be heard the Motion for Partial Summary

Judgment of Plaintiff Roland Lee Goad, and

the Court having considered said Motion and

the summary judgment evidence and being fully

advised is of the opinion and finds that said

Motion is without merit and should be in all

things denied. It is therefore,

ORDERED, ADJUDGED and DECREED that Plaintiff's

Motion for Partial Summary Judgment be and the

same is hereby denied.

SIGNED the 14 day of May, 1987.

s/Gabrielle K. McDonald

U.S. DISTRICT JUDGE

App. G 23a

Form Order in the trial court on April 17,

1989, striking Petitioner's pleadings.

(immaterial formal matters are omitted)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ORDER STRIKING PLEADING(S)

The Clerk has filed your Plaintiff's Mot-

ion for Leave to Amend; Plaintiff's Motion

for Amended Docket Control Order, however

it is deficient in the area(s) checked

below:

** @ # *

7. XXX Other: Counsel for Pltf must with-

draw in order for Pitf to proceed pro se.

The Clerk is hereby ORDERED to strike the

above instrument(s) from the record and

notify counsel of such action.

Dated: 4/13/89

s/ Sim Lake

U.S. DISTRICT JUDGE

App. H 24a

Conference Minutes and Order in the trial

court, Cause No. H-86-3433, entered on

hearing of May 5, 1989. (immaterial formal

matter are omitted)

Date: 5-5-89 CONFERENCE MINUTES

AND ORDER

Time: 3:00p/3:20p

At the conference held today these rulings

were made:

The Court GRANTED the motion for summary

judgment of defendants Davis, Davis and

Stacy (#113) for failure to state a cause

of action and for lack of subject-matter

jurisdiction.

The Court DENIED plaintiff's motion for

leave to amend complaint. (#122).

A new docket control order was entered

separately.

The Clerk will file these Minutes anc

Conference Order.

s/Sim Lake

U. S. District Judge

App. I 25a

Relevant excerpts from Petitioner's brief

filed in the Fifth Circuit on April 17,

1990, No. 90-2270, Goad v. Rollins.

The Court has jurisdiction over this app-

eal pursuant to the provisions of 28 U.S.C.

§ 1291.

There are eleven issues presented in this

appeal. They are:

[I] Was it an abuse of discretion for the

trial court to enter a protective order ex-

cusing Defendant Judge JOHN DELANEY from

answering Plaintiff's motion for partial

summary judgment?

[II] Did the trial court err, as a matter of

law, by dismissing Defendant Judge JOHN

DELANEY based on his claim of judicial

immunity?

[III] Did the trial court err, as a matter of

law, by denying Plaintiff's motion for part-

ial summary judgment without making anf find-

ings of fact or conclusions of law?

[IV] Was it reversible error for the trial

court to dismiss Defendants STACY, A. DAVIS

and A. DAVIS III on the basis that Plaintiff

had failed to state a claim?

fv] Did the trial court reversibly err when

it ordered Plaintiff's pleadings stricken

because he attempted self-representation?

[VI] Was it an abuse of discretion for the

trial court to deny Plaintiff leave to amend

without giving any reason for such denial?

App. I (Cont'd) 26a

[VII] Did the trial court err, as a matter

of law, by failing to find “state action”

with respect of the allegations concerning

Defendants ROLLINS and HALEY?

[VIII] Did the trial court err, as a matter

of law, by dismissing Defendants LEWIS,

MILLER, WILKERSON, HUDDLESTON, GODFREY, BLON-

DEAU and FITZGERALD on the basis of judicial

immunity?

[IX] Did the trial court err, as a matter of

law, when it sua sponte, and without prior

notice, granted summary judgment dismissing

Defendants BRAZOS COUNTY, COOLEY, WILCOX,

BEARD and TURNER on the basis of judicial

immunity?

(X] Did the trial court err, as a matter of

law, when it sua sponte, and without prior

notice, granted summary judgment dismissing

Defendant ELNA DAVIS?

(XI] Did the trial court err, as a matter of

law, when it dismissed count three of Plain-

tiff's complaint and granted summary judgment

in favor of Defendant MILLER solely because

Plaintiff had not responded to the motion for

summary judgment filed by MILLER after all

other claims had been dismissed and pleadings

closed?

Course of Proceedings and Disposition in

Court Below

App. I (Cont'd) 27a

3. Appellant (GOAD) instituted this action

on September 8, 1986 [R. 877], asserting

nine causes of action against Brazos County

and twenty individuals. Sommoses were issued

and serves. Fifteen individual defendants and

Brazos County filed an answer on October 7,

1986. [R. 828]

4. Judge John Delaney of the 272nd District

Court of Brazos County moved for dismissal as

to him based on his claim of judicial immunity.

(R. 821]. Defendant ELNA DAVIS answered [R.

862] and Mary Beth Goad answered [R. 729]

and has been dropped.

5. On February 9, 1987 GOAD moved for part-

ial summary judgment on the question of liab-

ility oneal by sixty-seven exhibits agg-

regating to 248 pages. [# 56 & 57, R. 670-

703).

6. On February 13, 1987, Judge Delaney moved

for protective orders [R. 648] seeking to be

relieved of any requirement to file an ans-

wer to GOAD's motion for partial judgment.

App. I (Cont'd) 28a

GOAD filed an answer to his request for

protective orders [R. 634] pointing out

that the Judge was asking for relief that

goes far beyond the scope of Rule 26(c) and

suggested that the Court consider his motion

as a cross-motion for summary judgment and

proceed to consider the factual matters con-

tained in the exhibits on file with the

Court. [R. 640].

7. The requested protective order was granted

by the Court on March 1l, 1987. [R. 615].

8. In order to avoid a conflict of interest

based on dual representation, Brazos County

filed a stipulation in which it acknowledged

that it was the true party in interest as to

the individual defendants ALLIE W. LEWIS, RON

MILLER, LETICIA WILKERSON, RON HUDDLESTON,

JOHN GODFREY, CHARLES R. BLONDEAU, MICHAEL A.

FITZGERALD, BILL COOLEY, WALTER WILCOX,

BILLIE E. BEARD, and MILTON TURNER as to

which GOAD complained in his original compl-

App. I (Cont'd) 29a

aint and were all within the scope of their

official duties with regard to the acts

complained of. [R. 626].

9. On May 14, 1987, the trial court dism-

issed Judge Delaney based on his claim of

judicial immunity [R. 461] and denied the

motion for partial summary judgment but made

no findings of fact or law as to the evid-

ence that had been presented in the motion.

[R. 459].

10. On December 7, 1987, GOAD filed an am-

ended complaint essentially the same as the

Original complaint except it added Brazos

County specifically by name as a defendant.

[R. 401].

ll. On December 30, 1987, Brazos County

filed its original answer to the amended com-

plaint adopting by reference the answer it

had previously filed on behalf of its emplo-

yees. [R. 396].

App. I (Cont'd) 30a

12. On January 9, 1989, Defendants STACY,

A. DAVIS and A. DAVIS III moved the court

to excend the dispositive motion cut-off

date. [R.283] which was stricken by the

Court. [R. 279]. Defendants also moved for

summary judgment [R. 287-316] but the motion

was not served on GOAD [R. 226, @ 3] The

record contains both original and duplicate

copies of unsigned instruments that appear to

be the moving papers of the defendants: [R.

287/306, 288/307, 289/308, 290/309, 291/310,

292/311, 293/312, 294/313, 295/314, 296/302,

297/303, 298/304, 299/305, 300/315, 301/316).

Defendants also assert, incorrectly, that

GOAD's action against ROLLINS is one for mal-

practice. [R 287, @ 1, 306]. An affidavit

asserts that ROLLINS was in the employ of the

Defendants from August 3, 1981 until April

15, 1982 [R. 300, 315] however movant's cou-

nsel asserts that ROLLINS was in the employ

of his clients for a period of approximately

App. I (Cont 'c) 31a

seventeen (17) days. [R. 287, 306]. It sho-

uld be noted that the action complained of

in GOAD's action was filed on October 19,

1981. ([# 56, Ex. 50, certified copy]. The

indemnity bond was co-signed by Defendant

"FRED" DAVIS [# 56, exhibit 52, certified

copy]. From the record it may be adduced that

Defendant ROLLINS remained in the employ of

Defendants for 178 days after the charging

instrument was filed on October 19, 1981.

13. On March 29, 1989 GOAD moved the court

for leave to amend his complaint in order to

State with more particularity each of his

Claims against the defendants, to align his

Claims to the posture they would be presented

to the jury and to add claims for damages for

those events that had occurred since the

filing of the original petition. [R. 259].

On May 5, 1989, the trial court denied GOAD's

request to amend without giving any explana-

tion or reason. [# 154, p. 7, line 18].

App. I (Cont'd) 32a

14. On March 29, 1989, GOAD filed notice

cn ae ae, W«

with the Court and all counsel that he would,

effective immediately, undertake enbtorensea-

entation. [R. 262]. The notice was stricken.

iR. 255].

15. On May 5, 1989 the trial court dismissed

: Defendants STACY, A. DAVIS & A. DAVIS III for

failure of Plaintiff to state a claim (R.

12(b)(6)) (# 154, p. 4, line 25]; however in

its order of February 28, 1990, the dismissal

was characterized as one for summary judg-

ee ee ee

ment. [R. 12].

16. Defendants ROLLINS and HALEY filed motion

for summary judgment on July 7, 1989. [R. 188]

and on August 1l, 1989, more than a month after

the close of the pleadings, Defendants LEWIS,

MILLER, WILKERSON, HUDDLESTON, GODFREY,

a ee

BLONDEAU and FITZGERALD moved for dismissal

Or in the alternative, for summary judgment.

([R. 186].

App. I (Cont'd) 33a

17. GOAD responded by filing his answers

including memoranda of law and an affidavit

controverting Defendants’ claims. [R. 23-76;

90-112; 114-185]

18. On September 19, 1989, more than two

months after the close of the pleadings, Def-

endant ELNA DAVIS moved for judgment on the

pleadings [R. 88] which was stricken by the

Court [R. 77].

19. GOAD filed a proposed Joint Pretrial

Order on October 6, 1989. [# 148, R.22].

20.The trial court conducted “docket call"

on October 13, 1989 after which it entered

orders:

a. dismissing Defendants ROLLINS and HALEY

on the absence of state action. [#150, p. 2,

lines 20-25]

b. dismissed counts four and five for fail-

ure to state a claim and failure to allege a

conspiracy [#150, p. 2] and dismissing counts

six, seven, eight, and nine for failure to

App. I Cont'd) 34a

show state action [#150, p. 3] and granted

summary judgment in favor of Defendants

ROLLINS and HALEY.

c. Dismissed Defendants LEWIS, MILLER, WILK-

ERSON, HUDDLESTON, GODFREY, BLONDEAU and FITZ-

GERALD on the ground of judicial immunity.

{[#150, p. 4, line 5]

gd. Sua sponte, and without advance notice,

Granted summary judgment to Brazos County,

COOLEY, WILCOX, BEARD and TURNER on the basis

of judicial immunity. [#150, p.6, lines 4-9].

e. Sua sponte, and without prior notice,

granted summary judgment in favor of Defend-

ant ELNA DAVIS. [#150, p.7, lines 18-20].

20. On January 9, 1990, pursuant to the

court's instruction, Defendant MILLER moved

for summary judgment on the remaining count

in GOAD's complaint [R. 14] which the court

granted on February 22, 1990 because "(t]he

Clerk's records reflect that the Plaintiff has

not responded to this motion. Pursuant to

App. I (Cont'd) 35a

Local Rule 6.E failure to timely respond to

an opponent's motion is taken as represent-

ation of no opposition.” [R. 13].

21. A final order dismissing the case was

entered by the Clerk on February 28, 1990.

[R. 9] and notice of appeal was filed on

March 13, 1990 [R. 6] and an amended notice

of appeal was filed on March 16, 1990.

[R. 3].

App. J 36a

Relevant excerpts from the ROLLINS/HALEY

brief filed in the Fifth Circuit on June

15, 1990, No. 90-2270, Goad v. Rollins.

[Page 3]

In one previous suit, Judge David Hittner

dismissed Goad's case and imposed sanctions

against him for (1) the frivolous nature of

the suit; (2) the "meanness of spirit” with

which the action was brought; (3) Plaintiff's

intent to harass evidenced by the "persist-

ence and pervasiveness of Mr. Goad's litig-

ation campaign,” (specifically referring to

the case presently before this Court); and

(4) deprivation of the Court's “time desper-

ately needed for legitimate complaints."

Goad v. United States, 661 F.Supp. 1073 (S.D.

Tex. 1987), aff'd in part, vacated in part,

and remanded, 837 F.2d 1096 (Fed.Cir. 1987),

cert. denied, 485 U.S. 906 (1988). In another

of his lawsuits, the Sixth Court of Appeals

also imposed sanctions against Goad, noting

that the suit was the sixth filed by Goad

App. K 37a

Relevant portions of the "Request for Judic-

ial Notice” filed by Petitioner in the Fifth

Circuit On June 28, 1990, No. 90-2270,

Goad v. Rollins:

Appellant, ROLAND LEE GOAD, respectfully

requests the Court, pursuant to Rule 201(d) of

the Rules of Evidence, to take mandatory jud-

icial notice of adjudicative facts reflected

in the attached documentation.

DOCUMENTATION

Original Complaint, Case No. 90-72C, styled

Goad v. United States, filed in the United

States Claims Court on January 22, 1990.

Clerk's notice assigning Judge Gibson to case,

January 26, 1990

Notice joining Mary Beth Goad as a party,

served on February 23, 1990.

ADJUDICATIVE FACTS

Request the Court notice "Basis For Claims"

set out in the Original Complaint.

PURPOSE OF NOTICE

To assure that this Court does not inadver-

tently take any action trenching upon the ex-

Clusive jurisdiction of the United States

Claims Court.

App. K (Cont'd) 38a

CONTROLLING PRECEDENT

The United States Claims Court is a court

of national jurisdiction and in cases prop-

erly before it, it is, to all intents and

purposes sitting in the State where the

action arose or where the claim accrued.

United States v. Borchecrling, 185 U.S. 223,

234 (1902).

App. L 39a

Relevant portion of the Original Complaint

Case No. 90-72C, styled Goad v. United

States, filed in the United States Claims

Court on January 22, 1990 and submitted

to the Fifth Circuit as an annex to the

"Request For Judicial Notice" filed on

June 28, 1990

BASIS FOR CLAIMS

14. The divorce decree (Exhibit A) does not

qualify as a “court order” under the USFSPA.

15. Plaintiff's pay is exempt from execut-

ion, garnishment, levy or seizure in satis-

faction of a community property claim.

16. Congress' declaration that the USFSPA is

to apply to events which occurred before the

effective date of the Act represents an att-

empt to retroactively apply new statutory

language and to thereby annul a prior decision

of the United States Supreme Court. This was ar

assumption, by Congress of a court of last

resort in contravention of the principles

of separation of powers.

17. Congress has acted in excess of its auth-

ority by delegating to state courts the

App. L. (Cont'd) 40a

authority to determine whether or not to

apportion retired pay as community property.

Mary Beth Goad does not "own" a portion of

Plaintiff's retired pay.

18. The "direct pay" procedures of the Air

Force has deprived Plaintiff of his pay with-

out due process of law.

19. The USFSPA is a special law enacted for

the avowed purpose of allowing former spouses

to receive court-awarded payments directly

from the military finance centers without

having to resort to periodic state garnish-

ment procedures and therefore violates the

equal protection of the law as mandated by

the Fifth Amendment of the United States

Constitution. Until the Air Force has been

served with "legal process" issued by a

court of competent jurisdiction, there exists

no lawful authority for the Government to pay

funds firectly to Mary Beth Goad out of the

Department of Defense Military Retirement

Fund.

App. M 4la

Relevant excerpts from Judge Delaney's

brief filed in the Fifth Circuit on August

15, 1990, No. 90-2270, Goad v. Rollins.

[page 4] In March 1983, Mrs. Goad filed a

Motion for ccatempt is Appellee's court

seeking criminal sanctions for Appellant's

refusal to deliver the 12/27th share of his

military retirement benefits under the div-

orce decree from the time of its effect.

[R. #136, Tab 4.]

On December 20, 1984, Mrs. Goad file an

amended Motion for Contempt, seeking civil

Sanctions only, requesting Appellant's conf-

inement in jail until the delinquency in pay-

ment of benefits was delivered and brought

current.

On January 3, 1985, Appellee Judge DeLaney

adjudged Appellant in contempt. [R. # 136, Tab

6, p.129.] On January 7, i985, Appellee sig-

ned a Judgment of Contempt and Order of Comm-

itment holding Goad in civil contempt. The

Order directed that Appellant be incarcerated

— a

App. M (Cont'd) 42a

in the Brazos County jail until payment into

the court registry of Mrs. Goad's 12/27th

share of all Air Force retirement benefits

received from and including January 20, 1981

to December 20, 1984, in the amount of $30,

099.42. Appellant also assessed all court

costs as well as $10,000.00 in attorney's

fees against Appellant. [R. #136, Tab 7.]

On January 10, 1985, Appellant filed for writ

of habeas corpus in the Texas Supreme Court

seeking release from confinement as well as

challenging the validity of the divorce dec-

ree and the January 7, 1985 Judgment of Con-

tempt. On June 5, 1985, the Texas Supreme

Court denied Appellant relief and remanded him

to custody. He had been released on bond during

the time pending final determination. Ex Parte

Goad, 690 S.W.2d 984 (Tex. 1985).

On August 29, 1985, Mrs. Goad filed a First

Amended Motion for Enforcement of the court's

order in Appellee's Court, bringing a second

Civil contempt action, this time to enforce

App. M (Cont'd) 43a

payment of military benefits between the time

of the first contempt (December 1984) and

April, 1985. [R. #136, Tab. 8.]

On September 13, 1985, hearing on the motion

was held in Appellee's Court. Appellant ref-

used to endorse three U.S. Treasury checks for

retirement benefits for July, August, and Sep-

tember, 1985, totaling $2,813.00 obtained by

Mrs. Goad's attorney through subpoena duces

tecum. [R. #136, Tab 12, pp.69-77.]

At that time Appellee Judge DeLaney signed a

Judgment of Contempt and Order for Commitment,

holding Appellant in civil contempt and order-

ing incarceration in Brazos County jail until

payment of military retirement benefits due

Mrs. Goad between December 21, 1984 and April

15, 1985, as well as awarding Mrs. Goad $1500

in attorney's fees. [R. #136, Tab 13.]

App. N 44a

Relevant portions of Petitioner's motion

in the Court of Appeals to strike out and

disregard parts of Judge Delaney's brief

that misrepresented facts or authorities

regarding the case. Case No. 90-2270,

Goad v. Rollins, motion filed Aug. 28, 1990.

The Brief of Appellee, JOHN DELANEY, so dep-

arts from the realities of this case that

your Appellant is constrained to respect-

fully move this honorable Court to strike

out and disregard those portions of his brief

that misrepresent the facts or laws that

relate to this case.

3. On page 2 of his brief, the Judge mis-

characterizes the action in his court as a

“divorce action":

The actions stem from a divorce action inv-

Olving Appellant and his ex-wife. He cont-

ends that the following rights were denied

as a result of proceedings involving div-

OFce..-*

"He is also challenging the district court's

decision to protect Judge Delaney from dis-

covery..."

4. The Judge correctly set forth twelve

typewritten lines of text from Appellant's

main brief (p. 3), but managed to state

App. N (Cont'd) 45a

non-faccs in those parts outside quotation

marks. This is a civil rights action - not

a divorce action; and the proceedings in

Judge Delaney's court did not involve

"divorce action."

5. The Judge presents five pages (pp 3-7)

of gratuitous "facts" mostly at variance

with the facts of this case. * * * * *

c. On page 4, the Judge glosses over the

fact that the falsified document that bears

his signature and is dated January 7, 1985

is not a “court order." See page 45 of the

GOAD brief. Of much more serious import,

Judge Delaney must not be allowed to offer

that document to this Court and to claim

that it is valid. Falsification of the

“order” was a criminal act, and presenting

it to this court with the intention that it

be taken as a valid order is a further crim-

inal act. See GOAD's first reply brief,

q@ 22, p. 13.

oe et eee

App. oO 46a

Relevant excerpts from "Original Petition"

filed Sep. 8, 1986, styled Goad v. Rollins

(Doc. # 1, R-877-911)

"A jury trial is demdafided."

Jurisdiction of this Court is invoked purs-

uant to and in accordance with the provisions

of Title 28, United States Code, Sections

1331 and 1343. This action arises under Title

42, United States Code, Sections 1983 and 1988

and the Constitution of the United States, in

particular but not limited to the First, fourth,

Fifth, Sixth, Eighth and Fourteenth Amendments

thereto. In addition, pendent jurisdiction is

invoked over related state law claims.

14. Plaintiff alleges that Defendants JOHN

DELANEY, ALLIE W. LEWIS, RON MILLER, RON

HUDDLESTON, LETICIA WILKERSON and JOHN HASKELL,

while acting under color of their offices, but |

without constitutional or legal authority, and

in violation of Plaintiff's constitutional

rights, deprived Plaintiff of his liberty with-

out due process of law. Defendants, acting

App. 0O (Cont'd) 47a

pursuant to authority granted them by virtue

of their offices, but in total disregard of

their responsibility and jurisdiction, delib-

erately, wrongfully, unlawfully, maliciously,

willfully and oppressively, without any reas-

onable or probable cause, and in utter dis-

regard of Plaintiff's legal and constitutional

rights, placed Plaintiff under arrest and

against his will without legal process and

illegally and unlawfully confined him in the

Brazos County Jail.

15. On January 3, 1985, A.D., in the County

of Brazos, State of Texas. JOHN DELANEY, did

then and there as a public servant, to wit:

Presiding Judge of the 272nd District Court

of Brazos County, Texas, and with intent to

harm Plaintiff, intentionally and knowingly

commit an act relating to his office and emp-

loyment that crastituted and unauthorized

exercise of his official power, to wit: JOHN

DELANEY, while acting under color of his office,

App. '@) (Cont'd) 48a

knowingly acting in clear and complete abs-

ence of legal authority, did then and there,

at approximately 2:30 o'clock p.m. on the

Third Day of January 1985, A.D., verbaliy

order the arrest and confinement of the Plain-

tiff in the Brazos County jail without prob-

able cause or reason to believe that Plain-

tiff had committed or was about to commit any

criminal offense in his presence and without

a mittimus authorizing the arrest or confine-

ment of Plaintiff in the Brazos County jail

knowing his action to be unlawful.

16. On January 3, 1985, A.D., in the County

of Brazos, State of Texas, ALLIE W. LEWIS, did

then and there as a public servant, to wit:

Bailiff of the 272nd District Court of Brazos

County, Texas, acting under color of his off-

ice and employment, intentionally subject

Plaintiff to mistreatments, arrest, detention,

and search that the said ALLIE W. LEWIS knew

was unlawful. Specifically, the said ALLIE W.

App. oO (Cont'd) 49a

LEWIS, acting under color of his office and

without any written authority or reasonable

Or probable cause to believe that a criminal

offense had been committed by the Plaintiff,

did then and there arrest Plaintiff and del-

iver him to the Brazos County jail, knowing

such arrest to be unlawful.

17. On January 3, 1985, A.D., in the County

of Brazos, State of texas, LETICIA WILKERSON,

did then and there as a public servant, to wit:

Corrections Officer at the Brazos County jail,

Brazos County, Texas, acting under color of

her office and employment, intentionally sub-

ject Plaintiff to mistreatment, arrest, detent-

ion and search that the said LETICIA WILKERSON

knew was unlawful. Specifically, the said

LETICIA WILKERSON, acting under color of her

office, did then and there, at approximately

3:00 o'clock, p.m., on Jaunuary 3, 1985, A.D.,

without any written authority or reasonable

Or probable cause to believe that a criminal

App. 0 (Cont'd) 50a

offense had been committed by the Plaintiff,

confine Plaintiff in the Brazos County jail

without a warrant, knowing her action was

unlawful. ...

19. On January 7, 1985, A.D., in the County

of Brazos, State of Texas, LETICIA WILKERSON,

did then and there as a public servant, to

wit: Corrections Officer at the Brazos County

jail, Brazos County, Texas, acting under color

of her office and employment intentionally

subject Plaintiff to mistreatement, arrest,

detention and search that the said LETICIA

WILKERSON knew was unlawful. Specifically,

LETICIA WILKERSON, acting under color of her

office, unlawfully arrested Plaintiff inside

the Brazos County Jail and falsified the capias

to indicate Plaintiff had been initially arr-

ested on January 7, 1985, A.D., at the 272nd

District Court, knowing such report to be

false; when in fact the falsified arrest report

was used to perpetuate the earlier unlawful

App. 0 (Cont'd) S5la

arrest the said LETICIA WILKERSON had made on

January 3, 1985, A.D., the said LETICIA WILK-

ERSON knowing her action to be unlawful. ...

30. During the period from January 3, 1985,

A.D., until October 21, 1985, A.D., the named

defendants, BILL COOLEY, WALTER WILCOX, BILLY

E. BEARD and MILTON TURNER, did then and there

as public servants, to wit: Commissioners of

Brazos County, Texas, and acting under color

of their offices, did intentionally and in

reckless and callous disregard of Plaintiff's

constitutional rights, intentionally and know-

ingly refrain from performing duties that were

imposed on them by law, to wit: Defendants

failed and neglected to provide a safe and

suitable jail in Brazos County and failed to

cause the county jail to be maintained in good

sanitary condition, properly ventilated, heated

and lighted, and kept in good repair

while Plaintiff was incarcerated therein. ...

App. P 52a

Selected relevant excerpts from answer of

Brazos County filed on October 7, 1986,

CA H-86-3433, styled Goad v. Rollins, Doc.

#19. R. 828-853.

14. Defendants ALLIE W. LEWIS, RON MILLER,

RON HUDDLESTON, and LETICIA WILKERSON admit

only that while acting under color of their

offices, Plaintiff was put under arrest and

confined in the Brazos County jail.

15. It is admitted upon information and

belief that JOHN DELANEY, presiding Judge

of the 272nd Judicial District Court of

Brazos County, Texas, did on January 3, 1985,

verbally order the arrest and confinement of

the Plaintiff in the Brazos County jail.

16. Defendant ALLIE W. LEWIS admits only

that on January 3, 1985, while under color

of his office and employment he did, purs-

uant to Court Order, arrest Plaintiff and

ities eke to the Brazos County jail. ...

17. Defendant LETICIA WILKERSON admits

only that on January 3, 1985, while acting

under color of her office and employment

App. P (Cont'd) 53a

did at approximately 3:00 o'clock p.m.,

confine Plaintiff in the Brazos County

jail.

19. Defendant LETICIA WILKERSON admits

only that on January 7, 1985, while acting

under color of her office and employment and

pursuant to authority granted to her by

virtue of her office, she did serve a capias

on the Plaintiff while Plaintiff was incar-

cerated at the Brazos County jail. ...

30. Defendants, BILL COOLEY, WALTER WILCOX,

BILLY E. BEARD ani MILTON TURNER admit only

that from January 3, 1985 until October 21,

1985, they were serving as Commissioners of

ene County, Texas, and that Plaintiff was

incarcerated in the Brazos County jail. It is

further admitted that at the time of the

Plaintiff's incarceration, an exercise area

was not provided due to the fact that the new

Brazos County jail facility was under constr-

uction ... It is further admitted that a day

App. P (Cont'd) 54a

room facility was not provided while the

Plaintiff was incarcerated in the Brazos

County jail.

App. Q 55a

First Stipulation of Facts filed by Brazos

County on March 2, 1987. (immaterial formal

matters are omitted)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROLAND LEE GOAD §

§ CIVIL ACTION NUMBER

vs § H-86-3433

JOHN ANDREW ROLLINS, §8

ET AL §

FIRST STIPULATION OF FACTS

It is hereby stipulated by Brazos County,

the true party in interest as to the individ-

ual Brazos County Defendants, that the acts of

Defendants, ALLIE W. LEWIS, RON MILLER, LETICIA

WILKERSON, RON HUDDLESTON, JOHN GODFREY, CHA-

RLES R. BLONDEAU, MICHAEL A. FITZGERALD, BILL

COOLEY, WALTER WILCOX, BILLY E. BEARD, and

MILTON TURNER, of which ROLAND LEE GCAD comp-

lains in Plaintiff's Original Petitéon were

all within the scope of their official duties.

App. Q (Cont'd) 56a

Brazos County hereby stipulates that it will

not attempt to show that the above-listed

employees were not acting within the scope

of their official duties with regard to the

acts complained of in Plaintiff's Original

Petition. This Stipulation is limited to tue

specific actions of the above-listed Brazos

County employees as alleged in Plaintiff's

Original Petition.

This Stipulation has heretofore been sub-

mitted to the Commissioner's Court of Brazos

County’) Texas, on the 16th day of February,

1987, for approval.

App. R 57a

Portions of the transcript of proceedings

in the trial court on May 5, 1989, Goad

v. Rollins, H-86-3433. Doc. No. 154

[page 4] THE COURT: The next item accord-

ing to my notes is docket entry 113, which

is the Motion to Dismiss of defendants

Pearce P. Stacy III, Alfred Davis and

Alfred W. Davis III.

MR. GIESSEL: That is a motion I filed,

Your Honor.

THE COURT: Yes. I've read the motion and I'm

going to grant the motion. The motion relies

primarily on the aksence of privity between

the plaintiff and your clients. If you --

although the docket entry 94, which is the

plaintiff's last pleading, is not an example

of clarity as to leaal theory, it appears to

allege misuse of legal process more than

attorney malpractice.

MR. GIESSEL: I concede that, but I think

it would fall under the same cases.

THE COURT: To the extent that it attempts

App. R (Cont'd) 58a

to allege attorney malpractice, the motion

is granted for want of privity. To the extent

that it alleges abuse of the judicial system

Or egregious malicious prosecution, I'm

going to grant your motion because, number

one, there is no privity. I don't find any

state action to come within 1983. And under

the Fifth Circuit's recent opinion in Cisk

v. Levings, L-e-v-i-n-g-s-, it clearly does

not meet the standards of egregiousness that

is sufficient for a tort of this nature to

constitute a constitutional violation. So

for all those reasons, I'm going to grant

your motion. I think it's more properly a

motion under 12 (b) (6) than 12 (b) (1) and /

it, will be so noted.

MR. GIESSEL: Very well, Your Honor. May I

point out to the Court that additional relief

that I suggested to the Court is some injunc-

tive relief to prevent the filing of further

lawsuits litigating these same issues,

—

App. R (Cont'd) 59a

because we have been all over the state. I

think I showed a listing of 18 different

lawsuits had been filed on the same matter,

and I wanted to put it to an end by suggest-

ing to the Court injunctive relief against

the filing of further lawsuits growing out

of the same matter.

THE COURT: I don't think I'm in a position,

since I've dismissed you, to give you that

relief. I think I would be more--it might be

appropriate to grant that relief once this

case were over with, but there's not a

factual record yet on which to enjoin the

plaintiff from filing further lawsuits

against your clients.

App. S 60a

Relevant excerpts from Petitioner's affid-

avit opposing motions for summary judgment,

Doc. # 146, CA H-86-3433, styled Goad v.

Rollins, filed October 6, 1989.

2. On June 26, 1981, the United States Sup-

reme Court held that retired pay was not sub-

ject to attachment for satisfaction of commu-

nity property awards and that this prohibit-

ion was not to be circumvented by the simple

expedient of an off-setting award of some

other property. McCarty v. McCarty, 453 U.S.

210, 228 n.22 (1981).

3. On October 19, 1981, despite the command

of McCarty, Defendant Rollins, acting on be-

half of Mary Beth Goad, filed a lawsuit aga-

inst Affiant seeking to relitigate the prop-

erty division aspects of the divorce so as to

obtain an off-setting award of some other

property for the expected value of Mary's

purported interest in Affiant's “Air Force

Retirement benefits.” (Exhibit 1). Concurrent

with the lawsuit, Mary Beth Goad requested,

and was granted injunctive relief that

App. S (Cont'd) 6la

encumbered all Affiant's tangible property.

(Exhibit 2).

4..On March 8, 1983, Defendant Rollins, on

behalf of Mary Beth Goad, filed a motion for

contempt against Affiant. (Doc. # 136, exhibit

4). The motion was not served on Affiant.

Amended motions were filed on October 31, 1984

and on November 21, 1984 and neither of those

motions were ever served on Affiant.

5. Immediately after Affiant perfected his

right to a jury trial on the criminal charges

contained in the amended motions, Defendant

Rollins amended the motion for the third time

removing all demands for criminal punishment

and instead sought only civil coercion ...

for one single act of civil disobedience occ-

urring at a date fourteen days after the show

cause order was issued and served. (Doc. 136)

6. A contempt trial was held 60 CONES 3,

1985 without a jury and without removing the

case from the jury docket and Affiant was

App. Ss (Cont'd) 62a

declared to be guilty of civil contempt for

one act of conduct from January 30, 1981 until

January 3, 1985, inclusive. Judge Delaney

verbally ordered Affiant jailed until $30,

800.42 was paid into the registry of the court

(Not $30,099.42 =. asserted by Defendant Rol-

lings). (Doc. 136, Ex. 6, p. 129, lines 14-25).

The verbal order did not ‘nclude any attorney

fees award as insisted b, Defendant Rollins

Id. at lines 21-23. The particular verbal

order has never been reduced to writing how-

ever a falsified order was entered in the min-

utes of the 272nd District Court on January

7, 19865.

7. The judgment of contempt and order of con-

mitment dated January 7, 1985 has been falsi-

fied in several significant ways so as to make

it appear that the contempt trial was held on

January 7, 1985.

8. Annexed to this affidavit, and identified

as exhibit 3, is a copy of the booking slip of

App. s (Cont'd) 63a

the Brazos County Sheriff's Office showing

that Affiant was arrested at the 272nd Dist-

rict Court by Officer Lewis and received in the

Brazos County Jail at 3:00 p.m. on January 3,

1985 by J. Haskell, Receiving Jailer, under

authority of Judge Delaney for "Restitution

$30,800.42."

9. On January 7, 1985, after Affiant had been

in custody for four (4) days, a falsified order

was signed by Judge John Delaney (Doc. 136,

Ex. 7) that was cast as an original order and

made no reference to any earlier order, direct-

ing the Brazos County Sheriff to "find" and

confine Affiant in the Brazos County Jail and

to safely keep him there until he purged him-

self of civil contempt by paying $30,099.42

into the registry of the Court. It was only

in this falsified court order that Defendant

Rollins was awarded his fees for his services.

10. In Court Document No. 19, paragraph 17,

filed in October 1986, Defendant Leticia

App- s (Cont'd) 64a

Wilkerson admits that at approximately 3:00

o'clock p.m., on January 3, 1985 she confined

Affiant in the Brazos County Jail. And in

paragraph 19 of the answer she admits that

on January 7, 1985 she did serve a capias on

the Affiant while the Affiant was incarcerated

at the Brazos County Jail.

ll. Annexed to this affidavit and identified

as exhibit 4, is a true copy of an admission

by Leticia Wilkerson (signed by her attorney)

admitting that she executed a return of a

capias on January 7, 1985 stating that she

“arrested the within named Roland Lee Goad at

272nd District Court, in Brazos County, Texas

and taking His bond, which is hereby returned,

placing Him in the County Jail of Brazos County,

Texas."

12. Affiant was served with the capias while

incarcerated in the Brazos County Jail as adm-

itted in Doc. No. 19. Affiant was not at or

near the 272nd District Court on January 7,

App. s (Cont'd) 65a

1985. as shown on the falsified capias. A

signed copy of the capias has never been

filed in the court records of Brazos, County.

13. Om August 12, 1985, Defendant Rollins,

acting on behalf of Mary Beth Goad, filed a

new lawsuit against Affiant. The suit was

never served on Affiant, although he was incar-

cerated just a few yards from the District

Clerk's Office where the court papers were

filed. Affiant first learned about the suit

when Defendant Rollins made one of his public

pronouncements about the case that was reported

in the local press on August 21, 1985. On

August 12, 1985 Judge John Delaney issued an

“Order For Disclosure” (Doc. 135, Ex. 9) dir-

ected to Zelma G. King at the Air Force Acco-

unting and Finance Center, for her to disclose

privileged information from the personnel and

pay records of the Affiant to Defendant Rol-

lines. Affiant was never informed that a search

was being made of his official Air Force

App. Ss (Cont'd) 66a

records, and no information from Affiant's

records was placed into evidence at the

court hearing on September 13, 1985.

14. On August 29, 1985, Defendant Rollins

amended the lawsuit asking that Affiant be

confined in the Brazos County Jail (where he

was already incarcerated) for civil contempt

until he delivered to Mary Beth Goad a frac-

tion of “benefits” received “from, and incl-

uding, December 21, 1984 until April 15, 1984."

- An impossible period. The Show Cause Order

directed Affiant to appear at 10:00 o'clock

a.m. on September 13, 1985 to show cause why

he should not be confined in the Brazos County

Jail until he pays a fraction of his “benefits”

that he received “from, and including,

December 21, 1985 until April 15, 1985." -

Such impossible dates appearing twice in the

show cause order. The District Clerk issued

a notice to the Affiant on August 29, 1985

that also contained these impossible dates

App. Ss (Cont'd) 67a

in two places. (Exhibit 5).

15. Judge John Delaney signed a “Judgment

of Contempt and Order of Commitment” on Sep-

tember 13, 1985 directing Affiant be incarc-

erated in the Brazos County Jail until he

paid a fraction of those “benefits” he rec-

eived "from and including December 21, 1985

until April 15, 1985.* Such impossible dates

appearing in five (5) places on the order.

(Exhibit 6).

App. T 68a

Petitioner's Exhibit No. 6 appended to his

affidavit in opposition to summary judgment

filed in the trial court on October 6, 1989.

(Doc. No. 146, R. 71-73).

NO. 26,934

MARY BETH GOAD § IN THE DISTRICT COURT

v § OF BRAZOS COUNTY, TEXAS

ROLAND LEE GCAD § 272ND JUDICIAL DISTRICT

JUDGMENT OF CONTEMPT AND

ORDER OF COMMITMENT

On the 13th day of September, 1985, came on

to be heard the First Amended Motion for Enf-

orcement filed herein on the 29th of August,

1985 by MARY BETH GOAD, Movant therein, which

Motion suggested to the court that ROLAND LEE

GOAD, Respondent therein, is in contempt of

this Court by his failure and refusal to obey,

from and including December 21, 1985 until

April 15, 1985. the following order of this

Court in its Decree of Divorce, which was

signed by this Court on September 19, 1980,

appeal from which was not perfected and which

is therefore final:

App. T (Cont'd) 69a

"IT IS FURTHER ORDERED, that ROLAND LEE

GOAD shall, upon receipt of all United States

Air Force Retirement benefits, immediately

deliver twelve/twenty-sevenths (12/27) of

said retirement benefit, by United States

mail to MARY BETH GOAD at her current place

of residence.”

Said Decree of Divorce did award to MARY

BETH GOAD, as her sole and separate property,

"All right, title and interest in and to

twelve/twenty-sevenths (12/27) of the United

States Air Force Retirement benefits of

ROLAND LEE GOAD AF#462368682", and did further

state that ROLAND LEE GOAD was thereby “div-

ested of all right title [sic], and interest

in and to” said same twelve/twenty-sevenths

(12/27) of United States Air Force Retirement

benefits.

MARY BETH GOAD appeared in person and by her

attorney, and announced ready for tria:.

ROLAND LEE GOAD appeared in person, and

App. T (Con't) 70a

pro se, and announced ready for trial.

After examining the pleadings, and hearing

the evidence and argument of counsel for MARY

BETH GOAD, and of ROLAND LEE GOAD, pro se,

THE COURT FINDS AND NOW HOLDS THAT:

1. This Court has jurisdiction of this pro-

ceeding;

2. The First Amended Motion for Enforcement

filed herein is in all respects proper and

sufficient;

3. ROLAND LEE GOAD was afforded due and pro-

per notice of these proceedings; and that

4. ROLAND LEE GOAD is guilty of violating

the order of this Court contained in said

Decree of Divorce, above-referenced, and that:

a. ROLAND LEE GOAD AF#462368682 received from

the United States Air Force Accounting and

Finance Center in Denver, Colorado the sum

of $6,329.93 in United States Air Force Ret-

irement benefits, from and including December

21, 1985 until April 15, 1985.

App. T (Cont'd) 7la

b. ROLAND LEE GOAD has not delivered to MARY

BETH GOAD, by United States mail or otherwise,

at her current ,»lace of residence or elsewhere,

immediately or otherwise, twelve/tventy-sevenths

(12/27) of the United States Air Force Retire-

ment benefits of ROLAND LEE GOAD AF#462368682,

which he received from and including December

21, 1965 until April 15, 1985; and, as a result.

c. ROLAND LEE GOAD is in arrears to MARY BETH

GOAD for a total sum of $2,813.02.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED

BY THE COURT THAT:

1. ROLAND LEE GOAD is found in civil contempt

of this Court for failing and refusing to del-

iver to MARY BETH GOAD, twelve/twenty-sevenths

(12/27) of all United States Air Force Retire-

ment benefits which ROLAND LEE GOAD received

from and including December 21, 1985 until

April 15, 1985;

2. ROLAND LEE GOAD be placed in the County

Jail of Brazos County, Texas, and remain therein

App. T (Cont'd) 72a

until he purges himself of his contempt by

paying into the registry of this Court the

sum of $2,813.02; i.e. twelve/twenty-sevenths

(12/27) of the United States Air Force Retire-

ment benefits of ROLAND LEE GOAD AFP#462368682,

which he received from and including December

21, 1985 until April 15, 1985;

3. All costs of Court incurred herein are

assessed and taxed against ROLAND LEE GOAD.

Said costs of Court shall include the sum of

$3500.00 _. reasonable attorney's fees of J.

ANDREW ROLLINS which were incurred by MARY BETH

GOAD, pursuant to V.T.C.A., Family Code, §

3.77. These attorney's fees are ordered paid

directly to J. ANDREW ROLLINS by ROLAND LEE

GOAD. J. ANDREW ROLLINS may enforce this order

for fees in his own name by any means available

for the enforcement of a judgment for debt.

App. T (Cont'd) 73a

4. A capias be issued commanding the Sheriff

of Brazos County, Texas to arrest ROLAND LEE

GOAD and so place him in the County Jail of

Brazos County, Texas, and there safely keep

him until he has purged himself of contempt

as directed above; and

5. Said capias shall recite generally the

proceedings in this case, and it shall be

accompanied by a certified copy of this judg-

ment and order to be served upon ROLAND LEE

GOAD, as further evidence of the Sheriff's

authority.

Signed this 13th day of September, 1985.

(signed

John Delaney, Judge

272nd Judicial District

Court

Brazos County, Texas

| . ~

App. U 74a

Excerpts from the "Third Amended Motion

For Contempt" filed in the 272nd District

Court on December 20, 1984 and annexed

to Doc. # 78, filed April 10, 1987 in Goad

vV- Rollins, No. H-86-3433. (R. 558-561)

(R. 559] ORDER TO SHOW CAUSE

The above and foregoing Third Amended Motion

for Contempt of MARY BETH GOAD, seeking to

have ROLAND LEE GOAD found in civil contempt

of court and confined only until ROLAND LEE

GOAD purges himself of said contempt, having

been considered and found legally sufficient

for hearing thereon;

IT IS, THEREFORE, ORDERED that ROLAND LEE

GOAD appear before this 272nd Judicial Dist-

rict Court of Brazos County, Texas, at the

County Courthouse located in Bryan, Brazos

County, Texas at 9;30 o'clock a.m. on January

3, 1985, to show cause:

1. Why ROLAND LEE GOAD should not be found

in civil contempt of court for not immediat-

ely delivering to MARY BETH GOAD twelve/twenty-

sevenths (12/27) of all United States Air

App. u_=-—s« (Cont'd) 75a

Force Retirement benefits, upon his receipt

of same from, and including, January 30,

1981 through January 3, 1985.

2. Why ROLAND LEE GOAD should not be conf-

ined in the County Jail of Brazos County,

Texas until he pays to MARY BETH GOAD

twelve/twenty-sevenths (12/27) of all United

States Air Force Retirement benefits which

he received from, and including, January 30,

1981 through January 3, 1985. * * * * °

SIGNED this 20th. day of December, 1984.

__isigned)

JOHN DELANEY, Judge

272nd Judicial District

Court

Brazos County, Texas

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.