Reply Brief — Percy v. Cameo Convalescent Center, Inc.

Office - Supreme Court, U.S.

FILED |

3a DEC 24 1094

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YY ALEXANDER L. STEVAS.

No. 84-680 CLERK

In The

Supreme Court Of The United States

October Term, 1984

CAMEO CONVALESCENT CENTER, INC.,

a Wisconsin corporation,

Cross-Petitioner,

Vv.

w DARLA SENN, et al,

Cross-Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

ROBERT M. HESSLINK, JR.

Hesslink Law Offices, S.C.

Attorney for Cross-Petitioner

6000 Gisholt Drive

Monona, WI 53701

(608) 221-3151

TABLE OF CONTENTS

AND

AUTHORITIES

Page

STATEMENT OF THE CASE .....-...-- Il

SUMMARY OF ARGUMENT eeeeee72ee#*e#eee#eresses 3

ARGUMENT ese eeeesecstkreesenesteenseestkee#see#eet?#tete# 4

I. OLIM V. WAKINEKONA IS NOT

APPLICABLE eeeee7#7n#esns+se3s3e#ee#?## # 6

II. RIZZO V. GOODE DOES NOT

DECIDE CROSS-PETITIONER'S

CLAIMS eeeee7nee#e#eees#esterer#skereerteete ee @ 7

CONCLUSION eeesteeetcenee#ee#seee#eeesestetete @ 14

CASES CITED

Olim v. Wakinekona, 103 S.Ct. 1741

(1983) eeoenevevee eee eee 3» - 6, Te 9

Rizzo v. Goode, 423 U.S. 362, 371

373-376 ¢€2975) «2+ 3, Se De 40, Ll

OTHER AUTHORITIES CITED

42 U.S.C. §1983 ... 25 4, 5- 7, 9,10

United States Constitution,

Fourteenth Amendment ........-. 7

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No. 84 580

In The

Supreme Court Of The United States

October Term, 1984

CAMEO CONVALESCENT CENTER, INC.,

a Wisconsin corporation,

Cross-Petitioner,

Vv.

DARLA SENN, et al,

Cross~-Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The facts of this case are as

stated in our original cross-petition

for the writ. Cameo does, however, take

exception te a statement made in the

Statement of the Case submitted by the

cross-respondent, Darla Senn.

At page 8 of the cross-respondent's

brief, Ms. Senn states that the jury,

the district court, and the Court of

Appeals all found that there was no

nexus between Senn's initial issuance of

the NOV's in September and the placement

of Cameo on the SORL. In fact, neither

the jury nor the district court ever

made such a determination. Indeed, as

we indicated in our original cross-

petition, based on the court's instruc-

tions, and the jury's finding of abuse

of process and malicious prosecution in

the context of a §1983 action, we

believe that the jury, by its verdict,

made exactly the opposite finding.

SUMMARY OF ARGUMENT

Most of the arguments advanced by

the cross-respondent in its brief in

opposition to the cross-petition were

adequately addressed in our original

brief. However, the cross-respondent's

argument, that Olim v. Wakinekona, 103

S.Ct. 1741 (1983) eclipsed any prior

holdings by the circuit courts that an

abuse of process violated due process in

the context of a proceeding in which a

protected liberty or property interest

was at stake, is an unwarranted exten-

sion of that decision.

In addition, this Court's holding

in Rizzo v. Goode, 423 U.S. 362 (1975)

does not preclude a jury finding that

Senn's issuance and pursuit of the

Original NOV's was the proximate cause

of Cameo's placement on the Suspension

of Referrals List.

ARGUMENT

The original cross-petition for the

writ of certiorari advanced two primary

arguments in support of this Court's

granting of the writ. First of all, the

cross-petition argued that there was a

conflict among the circuits as to just

what elements must be established in

order to state a due process claim under

42 U.S.C. §1983, for an abuse of process

or malicious prosecution, undertaken

under color of state law, by a public

official. Secondly, the cross-petition

argued that the circuit court violated

previous decisions of this Court, and

the province of the jury, when it

vacated the judgment entered against

Darla Senn.

In response to our first argument,

the cross-respondent contends that this

Court's decision in Olim v. Wakinekona,

103 S.Ct. 1741, 1748 (1983) "eclipsed"

those circuit court decisions which held

that it was not always necessary to

establish an independent deprivation of

a protected interest, other than the

interest at stake in the proceeding

itself, in order to establish that a

malicious prosecution or abuse of

process constituted an actionable 42

U.S.C. §1983 claim. In response to our

second line of argument, the

cross-respondent argued that this

Court's decision in Rizzo v. Goode, 423

U.S. 362, 371, 375-376 (1975) precludes

a finding that Darla Senn's initial

issuance and pursuit of the NOV's was

the proximate cause of Cameo's placement

on the SORL.

For the reasons which follow,

neither of those two arguments has

merit.

I. OLIM V. WAKINEKONA IS NOT APPLICABLE

TO THIS CASE.

Our cross-petition argued that this

Court should assert jurisdiction because

it has never determined the nature of

the required protected interests in the

context of an abuse of process claim

under the Civil Rights Act.

Specifically, this Court has never

decided whether a liberty or property

interest need be at stake in the

proceeding or needs to have been

actually taken in order to trigger due

process protection. The cross-

respondent argued that the issue is

foreclosed by Olim, supra.

Olim was an action by a state

prisoner in the Hawaii state peniten-

tiary challenging his transfer to a

prison on the mainland. The prisoner

had contended that his transfer to the

mainland without a prior evidentiary

adversary hearing deprived him of a lib-

erty interest without due process of law

in violation of the Fourteenth Amendment

and §1983.

In finding that the prisoner's due

process rights had not been violated,

this Court relied heavily upon the

change in status of the prisoner which

had occurred due to his criminal convic-

tion. The Court held that conviction

changed the prisoner's status so as to

extinguish most of his liberty interests.

This Court then went on to find that

confinement in a certain prison, or even

in a certain state, was not one of those

liberty interests which survived

criminal conviction, stating that:

"Confinement in another state,

unlike confinement in a mental

institution, is "within the

normal limits cz range of cus-

_tody which the conviction has

authorized the state to

impose. "” -i63 €.Ct. at &-

1746.

The Court then concluded that,

because there was no protected interest

at stake, no hearing was required by the

due process clause.

Cameo has suffered no criminal

conviction nor any similar circumstance,

which wouldc in any way serve to reduce

its normal range of protected interests.

Thus, Cameo was clearly entitled to an

evidentiary hearing prior to the

imposition of any of the sanctions which

would have ensued had Cameo not

contested the original issuance of the

notices of violation.

The question which we hope to

present to the Court is whether the

abuse or misuse of that hearing process,

as well as its actual denial, consti-

tutes a violation of due process and

§1983. In deciding this question, the

rationale upon which this Court decided

Olim, supra, is simply inapplicable.

II. RIZZO V. GOODE DOES NOT DECIDE

CROSS-PETITIONER'S CLAIMS.

The cross-respondent also argues

that this Court's decision in Rizzo v.

Goode, 423 U.S. 362, 371, 375-76 (1975),

has already decided the proximate cause

issue adversely to the cross-petitioner.

In fact, Rizzo, supra, did not deal at

all with the question of whether a speci-

Fic constitutional tort was the proxi-

10

mate cause of a deprivation so as to

trigger §1983 liability.

In Rizzo, supra, this Court specifi-

cally concluded that there were depriva-

tions of protected interests which had

occurred. That was not even an issue in

the case.

The question before this Court in

Rizzo was whether isolated violations of

individuals' civil rights were suffi-

cient to support a broad-based mandatory

injunction, issued by the district

court, against the entire police depart-

ment. This Court concluded that, in the

specific context of that case, that such

isolated violations were not sufficient.

In reaching that conclusion, the

Court noted that the officers who had

engaged in those civil rights violations

were not even parties to the action. It

1l

also noted that plaintiffs had not

established involvement or condonation

of these acts by the department

management. Based on this set of

circumstances, this Court concluded that

a few isolated incidents of civil rights

violations, without more, was

insufficient to support a broad-based

mandatory injunction.

There is no broad-based injunction

against the department even at issue in

this proceeding. Moreover, the indivi-

dual whom the jury concluded had com-

mitted the act, Darla Senn, is a party,

in fact the party, to this proceeding.

Thus, the holding of Rizzo, supra, does

not in any way affect the question of

whether this Court should review the

propriety of the 7th Circuit Court of

Appeals decision setting aside the jury

verdict on the proximate cause issue.

Cross-respondent's argument that

Cameo never requested the jury to make a

specific finding of proximate cause for

placement on the SORL also misses the

point. Cameo is not seeking to

invalidate the jury verdict because of

faulty instructions, cross-respondent

is.

In reality, Cameo proposed a

general proximate cause instruction. (R.

149) Cross-respondent also proposed a

general instruction, not a specific

instruction on the SORL question.

(Reap. ADD «» 25 A:) Thus. .t-h-¢

cross-respondent cannot now be heard to

argue that the verdict was improper

because a specific proximate cause

instruction on the SORL was not given.

13

The cross-respondent also argues

that, if this Court were to conclude

that the circuit court did improperly

set aside the jury verdict on the

proximate cause issue, that verdict

would still need to be re-examined in

light of the prosecutorial immunity

question. Unfortunately for the

cross-respondent, no such re-examination

is necessary. Darla Senn never raised

prosecutorial immunity as a defense in

her answer to the complaint.

(Cross-Pet. App. 4A) Moreover, the

issue was submitted to thejury over

cross-petitioner's objection, and the

jury found no immunity.

Finally, even if one were to find

the verdict improper because the

specific causation instruction was not

given, the appropriate remedy would have

14

been to remand for a new trial on the

question, not to have the appellate

court make its own factual finding of no

proximate cause.

CONCLUSION

It is respectfully submitted that

this Court should grant the cross-

petition for the writ of certiorari and

review the case on its merits.

Respectfully submitted,

ROBERT M. HESSLINK, JR.

Attorney for Cross-Petitioner

6000 Gisholt Drive

Monona, WI 53713

(608) 221-3151