# Petition — Holway v. Thornton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0115%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 850 ## Text ye v7 1985 ALEXANDER L. STEVAS CLERK ee IN THE Supreme Court of the United States October Term, 1982 JOHN B HOLWAY, Petitioner, PERCY THORNTON SELWYN SMITH ALBERT BRYAN JR MARK P. FRIEDLANDER CLIFFORD SHOEMAKER Respondants WILLIAM HAMBLEN HELEN FAHEY RONALD TYDINGS PETITION FOR A WRIT OF CERTIORARI TO THE U.S. FOURTH COURT OF APPEALS Jonn B Holway 7805 Chase Ct Manassas Va 22110 (703) 368-8472 Pro Se i Questions Presented 1. Whether an attorney who conspires with a judge to commit fraud is protected by judicial immunity? 2. Whether the statute of limitations in a suit alleging continuing violations of civil rights is two years or five years? 3. Whether the executive branch's defense of members of the judicial branch charged with serious torts and constitutional abuses can be reconciled with the constitutional principle of separation of powers and checks and balances? 4. Whether "due process" and "equal protection" of the laws is upheld when a case is heard by a close colleague and friend of a defen- dant, then reviewed and dismissed by an appeals court headed by the father of the defendant? Whether such action “knowingly and deliberately’ violates constitutional rights? $. Whether a judge who knowingly admits a fraudulent citation without permitting the other Side to see it is performing an act “normally per- iie formed by a _ judge"? Whether such action "knowingly and deliberately violates a constitu- tional right? 6. Whether fraud by an attorney and judge violates petitioner's constitutional right to due process 2nd equal protection of the _ law? 7. Whether a judge-—-a colleague of the first judge—who refuses in a related suit to permit a defendant to mount any defense in court in order to hush up testimony of the fraud, is performing an act “normally performed by a judge"? Whether such action "knowingly and deliberately violates a constitutional right? 8. Whether a judge who presides at a hearing on fraud and refuses to permit testimony of the fraud, thus covering it up and protecting the per- petrators, is performing an act “normally per- formed by a _ judge”? Whether such action "knowingly and deliberately violates a constitu- tional right? 9. Whether commonwealth attorneys who knowingly make untrue statements that fraud by judges and attorneys in court is not criminal under the law, are performing acts "normally performed" by prosecutors? 10. Whether the privilege of judicial and pro- secutorial immunity is sanctioned by Act of the United States Congress, or whether it is in viola- tion of the wishes of Congress as expressed in the Ku Klux Klan Act of 1871, sections 1983 and 1985 and the 42nd US Code? ll. Whether the privilege of judicial immunity is sanctioned by the U.S. Constitution, or whether it is in violation of rights guaranteed to all citizens by the Fifth, Seventh, and Fourteenth Amendments to the Constitution? 12. Whether the U. S. Constitution is the supreme law of the United States, or whether English common law—specifically the 17th Century dectrine of Divine Right of Kings and its corollaries—takes precedence over the Constitution? ave 13. Whether a non-constitutional privilege takes precedence over a constitutionally guaranteed right? TABLE OF CONTENTS Page CS PUIG cc cacccccncesccecésewhenex i Opinions Below. eeeeeevoeeeeoeeeeeeeeeeeeeeeeeeee l Jurisdiction. eeeeeeoeeveeeeeeeeeeeeeee *eepeeeeee l Constitutional and Statutory Provisions...... 2 Reasons for Granting Review I. An attorney who conspires with a judge to commit fraud is not pretected by the immunity claimed by the jJudgesccccccccscccccccscccccsccccces ve f a. The statute of limitations in a civil rights suit involving property rights or ccatinuous discri- mination is five yearSecsscccccsceceveseeees F Tit. The cractice of the executive branch defending tudges accused of serious law violations and vs Constituticnal acuses violates the Corscitue tional orincisle cf separation of powers, v. Sparkman, 435 U. S. 349 (1978), a judge is absoulutely immune fran liability in actions seeking monetary damages. The Supreme Court noted with regard to immunity: "The governing principle of law is well established... As early as 1872, the Court recei:ized that it was ‘a general prin- ciple of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested him, [should] be free to act upon his own conviction...’ Bradley v. Fisher, 13 Wall 335, 347 (1872)... Later ae held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U.S. 547 (1967)." Stump, id. at 355-356. The test to be applied is as follows: "A judge will not be deprived of immunity because the action he tock was in error, was done mli- Ciously, or was in excess of his authority; rather 8 he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" Stump, id. at 356-357. It is clear that Judge Bryan's actions were within his judicial capacity and he did not act in the clear absence of all jurisdiction. Absolute immunity is therefore granted. Similar analysis is necessary and dispositive with regards to Judge Thornton and Judge Smith. as taken fram the complaint, Judge Thornton heard the original case and ruled in favor of England. Holway is attacking Judge Thornton's ruling as "fraudulent". Plaintiff bases his allegation upon his reading and understanding of a case used as authority in the suit. The complaint alleges only misconduct of the Judge sitting in his capa- city as a Circuit Court Judge. Likewise, Judge Smith was added to the list of “conspirators” for his ruling in a subsequent case in Circuit court and for statements made by the Judge fram the bench. His actions fall within the absolute imm- 9 nity defense as they were undertaken ir his orfi- Cial capacity. For these reasons and in light of Stump v. Sparkman, the case is dismissed with regards to Judges Thornton and Snith. William Hamblen and Helen Fahey are both attorneys in the Cammonwealth Attorney's office. According to the Supreme Court's opinion in Imbler v. Patchman, 424 U.S. 409 (1976), prosecuting attorneys are immune fram liability in actions such as the one brought here. Although Imbler speaks to the prosecutor's immunity for prose- cuting, this court will make the logical extension and apply it to cases in which the prosecutor has exercised his or her discretion and has refused to prosecute. For the public policy con- siderations espoused in Imbler, such an extension is necessary and proper for the functioning of the cammonwealth Attorney's office. It is not alleged that Hamblin and Fahey engaged in conduct outside of their prosecutorial capacity and therefore the doctrine of prosecutorial immunity is applicable. 10 under 42 U.S.C. § 1983, § 1985 private citizens are given redress for the deprivation of rights. However, under neither the Constitution of the United states, nor the Amendments thereto, are citizens given the right to initiate or request initiation of criminal prosecutions. Such is left to the sole discretion of magistrates, prosecuting attorneys, and grand juries. There is no constitutionally guaranteed right to have such persons prosecute. Hence, there is no basis for a § 1983 or § 1985 suit. the 12(b)(6) motion is therefore granted as to Hamblen and Fahey. Defendant Ronald Tydings also seeks dismissal under Fed. R. Civ. p.12(b)(6). It was Tydings who informed Holway that after a preliminary investigation of his complaint against Messrs. Priedlander and Shoemaker, the Cammittee was ll dismissing the matter as the conduct questioned did mot constitute "misconduct" under the Disciplinary Rules. In support of his motion to dismiss, Tydings offers two defenses. First, it is stated that Holway has no legal interest in a camplaint filed with the Virginia State Bar, and second, Holway failed to meet the statute of limi- tations. As to the first point, Holway asserts that he has been deprived of property and of unspecified rights under § 1983 and §1985 (Camplaint 4 67, 69). Tydings first defense would be dispositive if no property right is i fact at issue. This court holds that Holway does not have a property right in or legal interest in a comlaint filed with the Virginia State Bar. Plaintiff was given a chance to file a Reply Brief, which he did, and based upon a careful reading of that brief and the Complaint, this court cannot discern any property right. As to the second defense, the statute of limitations does appear to bar the suit as brought against 12 Tydings. Although this court does not base its dismissal solely on the statute of limitations, it is dispositive in and of itself. A federal court is to apply the limitation pericd provided by the state law for a closely analogous action. In Virginia, §8.01-243(A) is applicable to civil rights actions such a s §§ 1983 and 1985. This section of the Code provides for a two-year limi- tation and since Tydings' alleged misconduct eccurred in July of 1979, this action appears to be barred. See, Steward v. Norfolk, F. & D. Ry., 486 F. Supp. 744 (E.D. Va. 1980), aff'd, 661 F.2d 927 (4th Cir.); and Va. Code §8.01-243(A) (Supp 1982). This is not a continuing violation as Holway asserts. It is alleged in the complaint tha Tydings played a specific role in the "“conspiracy:, and that his part in it ended when he refused to investigate further. For these reasons, Tydings' 12(b)(6) motion is granted as there is no cause of action upon which relief can be granted. 13 This brings us to Mr. Friedlander and Mr. Shoemaker. Plaintiff nas sued defendants under the civil Rights Act and under 28 U.S.C. §§ 1331, 1343, and 1391. The case against Friedlander and Shoemaker is dismissed as the ccamplaint does not adequately support the alleged jurisdictional base upon which Holway relies. To fall within §§ 1331, 1343, or 1391, the matter must arise under the Constitution, laws or treaties of the United States. Diversity jurisdiction is not pleaded in the complaint. For this suit to survive, itis necessary that Holway make a sufficient claim under 42 U.S.C. §§ 1983 or 1985. Based upon the facts as taken fram the complaing and in light of recent Fourth Circuit and Supreme Court opinions, there is no claim upon which relief can te granted. Under 423 U.S.C. §§ 1983, 1985, there are two threshold requirements that must be apparent fram the complaint, in order for it to survive a motion of dismissal. The first requirement is that the 14 plaintiff have suffered a deprivation cf right secured by the Constitution of other law of the United States. The Civil Rights Act was intended to vindicate only federal rights determined under federal substantive law, not to be a remedy for ordinary state torts. It is true, however, that where the violation of state law allegedly causes a constitutional deprivation, a cause of action is stated. Plaintiff is claiming a violation of the Due Process requirement of the Fourteenth Amendment . Assuming, arguendo, that plaintiff passes the first requirement of a §§ 1983, 1985 suit, he does not survive the second. It is clear from the volume of cases and com mentary written on the Civil K.ghts Act that it is a prerequisite that the defendant(s) have acted (1) wumder the "color of state law", and (2) that there be state action. Recently, the Fourth Circuit Court of Appeals decided a § 1983 case that is closely analogous to the case at bar. The issue to be resolved in Lugar v. Edmonson Oil Co, Inc., 639 F.2d 1958 (1981), was whether a 15 claimants' conduct, prejudgment attachment of plaintiff's property, constituted private action "under color of state law" within contemplation of 42 U.S.C. § 1983. In the initial action, the defendant comany was sued for malicicusly invoking the stateprejudgment attachment procedure which resulted in the seizure of Lugar's property by the facts shown. Lugar claimed that the seizure by levy deprived him of property without due process of law. "The district court held, relying essentially upon Flagg Brothers, Inc. v. Brooks, 436 J.S. 149 (1978), that the comlaint did not allege a deprivation of property by "state action", and accordingly dismissed that action for failure of the complaint *o allege a claim ccni- zabe under § 1983." Lugar, id. at 1061. Thus, it made a distinction between the “under color of" and state action requirements. I analyzing the case, the Fourth Circuit emphasized the following elements as most critical: 16 First, [the issue) deliberately focuses inquiry upon whether the specific conduct directly chargeable to the § 1983 defendants was taken under color of state law, rather that upon whether the ultimate deprivation of right charged can be attributed to state action. Next, it emphasizes that the conduct directly chargeable to the § 1983 defendants is narrowly that of invoking , as private litigants, state judicial proceedings for the adjudication of a private controversy, and includes no earlier or later involvement of the § 1983 defendants with the state offi- cials other than as private litigants in those proceedings... It has become a commonplace that in the typical § 1983 case involving a claim of deprivation of a consti- tutionally secured right, the state action requirement necessitated by the Fourteenth Amendment's undergirding, and the under color of state law requirement necessitated by the statutory language ordinarily come to the 17 same thing. Nevertheless there has been cecasional recognition that this is net always so--that the two are separate, none- cessarily congruent, but culmative predicate elements of a prima facie § 1983 claim. Lugar, id. at 1062. Next, the Court focused it analysis on three pat- terns into which, in its opinion, § 1983 litiga- tion tends to fall. The first pattern is the “official act" case in which state action is apparent from the manner of the act. The second is when private actors alone are alleged to have engaged in conduct that has deprived a person of a secured right. In these situations no state cffi- cial is involved, but the action is attributable to the state by virtue of decisions made or poli- cies established. The third pattern involves the conduct of a private actor defendant who has alle- gedly combined actions with the acts of a state official at the enforcement or operational level. This pattern appears to be the one most closely 18 analogous to Holway's complaing. for this type of case the Fourth Circuit has determined that the two requirements of “under color of state law” and of state action must be considered as separate and distinct. The state action requirement is to be found by referring to the totality of the conduct leading to the injury, whereas the “under color of state law" requirement, concerned as it is with a special attribute of the specific conduct charged to a particular tortfeasor, is properly referred to the specific conduct. Lugar, id. at 1065 n.14. This court must therefore look at the specific conduct of Friedlander and Shoemaker as alleged in the complaint to determine if they acted “under color of state law". The Supreme Court in Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970), stated that while a private person can be liable under § 1983, he must have acted “with the knowledge of and pursuant to" the state officials," or put alternatively, “a willful participant in joint activity with the state or its agents." Adickes, 19 id. at 161. In the complaint Holway asserts that the "fraudulent scheme" and "conspiracy" commenced when Friedlander undertook certain actions, in his capacity as England's attorney, to complete a coveyance to a third party. There is not state action or any pretense of action “under the color of state law" involved in these transactions. Judge Thornton, the next defendant to have had allegedly become a member of the "conspiracy" could possibly have provided the nexus necessary to fulfill the requirement of state action. This position, however, stretches the imagination. What simply and straightforwardly occurred was that Holway suffered and adverse ruling and has concocted a wed of intrigue and conspiracy that he would have us believe reaches all ievels of the judiciary and the bar. In the recent Supreme Court case of Dennis v. Sparks, 449 U.S. 24 (1980), the court dealt with a § 1983 suit in which there was an alleged conspiracy between a judge and a private individual. The court noted: "Of course, merely 20 resorting to the courts and being on the winning side of a lawsuit does not make a party a co- conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge..." Dennis, id. at 28. [emphasis added]. The court held that dismissal was inappropriate where the sole argument made by the defendants was that because the judge had been awarded immunity, they likewise were immune. This is not the case here. The facts in Dennis show that the private persons had persuaded the judge to exercise his jurisdic- tion corruptly and to illegally issue an injunc- tion against plaintiff's production of minerals. There is no allegation of or factual support for bribery of the judge in the case at bar and his rulings, unlike that in Dennis, has not been struck down as illegal. The court in Lugar, supra stated with regards to the Dennis opinion: 21 In the setting we consider, 'joint engagement Or participation of private actor with state official implies such a usurpation of corrup- tion of official power by the former of surrender of power by the latter that the independence of the enforcing official a |e been comprised to a significant degree the official powers have become in practical effect shared by the two. Judged by this test it is plain that merely invoking a state's judicial process and thereafter participating in it solely as private litigant does not constitute joint engagement or participation by the private litigant with the state offi- cials who then independently conduct and enforce that process. The private initiating act, and the official enforcement acts are in no realistic sense joint but are instead discontinuous and independent. Lugar, supra at 1069. [emphasis added]. 22 Plaintiff, in this case, fails to show anything other that the unpleasant imposition of an adverse ruling and the mere allegation of a "conspiracy" between the Judge and the lawyers is not enough to state a claim under 42 U.S.C. § 1983 or § 1985. Let the clerk send a copy of this memorandum to all counsel. UNITED STATES DISTRICT JUDGE APPENDIX B No. 82-2061 Jonn B. Holway, Appellant, Percy Thornton; Selwyn Smith; Albert Bryan; Mark P. Friedlander; Clifford Shoemaker; Ronald Tydings; William Hamblen and Helen Fahey, Appellees. 23 Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Richard L. Williams, District Judge. Submitted: January 31, 1983 Decided: March 22, 1983 Before SPROUSE and CHAPMAN, Circuit Judces; BUTZNER, Senior Circuit Judge. (Jonn B. Holway, Appellant Pro Se. Mark P, Friedlander, Jr., FRIEDLANDER, FRIEDLANDER & BROOKS, P.C., for Appellees Shoemaker and Friedlander; Dennis G. Merrill, Assistant United States Attorney, for Appellees Thornton, Smith and Tydings; Robert Ellis, Susan Greenlief, for Appellee Hamblen; Joanne F. Alper, for Appellee Fahey. ) 24 PER CURLAM: A review of the record and the district court's opinion discloses that this appeal from its order denying relief under 42 U.S.C. § 1983 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district Court. Holway v. Thornton, C/A No. 82-0763 (E.D. Va., Oct.26 and Nov. 17, 1982).* Affirmed * Holway has filed a motion to disqualify the entire court. Alternatively, he moves to dismiss Judge Albert V. Bryan, Jr., as a defendant. | As Holway has shown no facts indicating that the court is biased or pre- judiced that motion is denied. Curry v. Jensen, 523 F. 2d 387 (9th Cir. 1975). His Motion to dismiss Judge Bryan as a defendant is granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0115%3A1. Public record. Not legal advice.