# Petition for Writ of Certiorari — Goad v. Rollins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1772%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 500 U.S. 905 ## Text NO. IN THE SUPREME COURT OF THE UNITED STATES “STOBER TERM, 1990 ROLAND L. GOAD Petitioner Vv. JOHN ANDREW ROLLINS a c? 0 a - Pa — _ a | ? — .) attention of the cour ce? O re - "7 ww ® — - uw ~ * — 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 17 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 18 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). 19 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 20 @ 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). 21 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). 22 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. 23 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 24 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, 25 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). 26 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 27 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 a 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 ee 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; (c) granted sua sponte summary judgment 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. § J 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 § f § 4 4 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? i 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]. ee 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 i : g : : 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 Y 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1772%3A1. Public record. Not legal advice.