Opposition Brief — Amend v. Poff

~

Supreme Court, U.s.

et ie ae RD

. AUG 28 1985

No. 85-183

fe ERNIE ct RO JL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JAMES E. AMEND, et ai.,

Petitioners,

V.

H. BRYAN PoFF, JR., et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF RESPONDENT,

AMARILLO NATIONAL BANK, IN OPPOSITION

R. A. WILSON

(Counsel of Record)

D. BARRY STONE

UNDERWOOD, WILSON, BERRY,

STEIN & JOHNSON

1500 Amarillo National Bank

Building

P.O. Box 9158

Amarillo, Texas 79105

(806) 379-0355

Attorneys for Respondent,

Amarillo National Bank

- 789-0096 - WASHINGTON. D.C. 20001

WILSON - EPES PRINTING Co.. INC.

S BEST AVAILABLE COPY

TABLE OF CONTENTS

STATEMENT OF THE CASE....... pit EARS Fe OU

REASONS FOR DENYING THE WRIT ......................

I. Because the Seventh Amendment has not been

viewed by this Court as applicable to trials in

State Court, the granting of the mistrial by

Judge Poff does not give rise to a substantial

question of Federal Law ..........................222---sc0.00---

II. Even under the Federal Court practice there

would have been no Seventh Amendment viola-

tion in the granting of a mistrial -......00022..-2.2...

III. The petition does not demonstrate the existence

of any constitutionally or otherwise federally

protected right in any act charged to the other

I is

IV. The existence of judicial immunity with respect

to the Amends’ demand for monetary damages

is‘no longer an open question ..........2202.022222-2-...

V. The Amend suit was properly dismissed as to

the non-judicial defendants because the facts

pleaded, if accepted as true, do not show that

the non-judicial defendants acted under color of

a errata rem tenon ton

VI. Giving the appropriate consideration to this

Court’s Rule 17, petitioners completely fail to

demonstrate the propriety of the writ of certi-

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TABLE OF AUTHORITIES

Cases Page

Arsenaux v. Roberts, 726 F.2d 1022 (5th Cir.

I iss sicic'cticaeitiaichies edlnbeetiasedecaaapeecnenibinecaiicaea Ac Riiiala stabs 11

C.A. Treat Manufacturing Company v. The Stand-

ard Steel & Iron Company, 157 U.S. 674, 15 S.Ct.

a 2" 8 ¢) eee eee 4

Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37

a § Bt Ree ee 3

Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39

FR Fe, | eee nae ae 3

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66

mk B&F. eee erate nn eer kere meee 10

Earnest v. Lowentritt, 690 F.2d 1198 (5 Cir.

DIED cecssicsbsshenigicte\sitadasiitilaiasinscbicbaseeiacaia cma isaiaasbnéan 7

Fullman v. Graddick, 739 F.2d 553 (11 Cir. 1984)... 11

Gregg v. U.S. Industries, Inc., 715 F.2d 1522 (11

ES FIED nciicinsicsccnsensinsninssncnpesiasiiadaiiiieeiaabaaaenalialamenaiaa 4

Hagerty v. Succession of Clement, 749 F.2d 217 (5

CO ID snctiscicsechciscccdamnusntnesstninteeis saiiadna el asebiaeiaanaas 14

Migra v. Warren City School Dist. Bd. of Educ.,

US. , 104 §.Ct. 892, 79 L.Ed.2d 56

I ITT > wrcseccssensesthapingchiaailrad aie siocarcaslaliaale aaa aa 14

Phillips v. Mashburn, 746 F.2d 782 (11 Cir. 1984).. 12

Pulliam v. Allen, —— U.S. ——, 104 S.Ct. ——,

BD Ree Tee CRO sistintBipececccaeecee aes. 6

Tarlton v. Exxon, 688 F.2d 973 (5 Cir. 1982) _...... 4

Taylor v. St. Clair, 685 F.2d 982 (5 Cir. 1982) ...... 7

Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14,

OD ee ee CE istic ec comumeenoiene 3

Wagner Electric Manufacturing Company v. Lyn-

don, 262 U.S. 226, 43 S.Ct. 589, 67 L.Ed. 961

GRID swinsssncipuscudiniecdidicee celbhannlebedles enema miaabaas 3

Walker v. Sauvinet, 92 U.S. -90, 23 L.Ed. 678

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Sra

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-183

JAMES E. AMEND, et al.,

™ Petitioners,

H. BRYAN POFF, JR., et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF RESPONDENT,

AMARILLO NATIONAL BANK, IN OPPOSITION

The Respondent, Amarillo National Bank, respectfully

prays that the Petition for a writ of certiorari of the

Petitioners, James E. Amend and J. D. Amend, be denied.

STATEMENT OF THE CASE >

We supplement briefly the statement of the case made

by Petitioners.

We attach as Appendix A to this reply a reproduc-

tion of the notice of appeal to which reference is made

in the Petition. It is apparent that this is not a case

2

in which the Supreme Court acquires jurisdiction by

direct appeal pursuant to 28 U.S.C.S. 1252 and 1258.

Accordingly this reply addresses itself only to the Peti-

tion for Writ of Certiorari.

Since the particular emphasis of the Petition is upon

the act of Judge Poff in declaring a mistrial in a case

tried in the 47th District Court of Potter County, Texas,

' it is recorded that the record before the Court of Appeals

includes, as part of the appendix to the Bank’s reply

to the Amend motion for partial summary judgment,

reproductions of four filed instruments in the Potter

County suit,

(1) the order granting severance or separate trial

(R.pp. 289, 290),

(2) the order with respect to the Bank’s motion for

partial summary judgment (R.pp. 291, 292),

(3) the charge of the Court and the jury’s verdict

(R.pp. 293 to 303) and

(4) the Bank’s motion for judgment non obstante

veredictor, alternatively for mistrial, alternatively

for remittitur (R.pp. 304 to 308).

Brief reference must be made to Appendix C to the

Petition for Writ of Certiorari. The Clerk of the Court

of Appeals returned, unfiled, because received out of

time, a reply brief tendered by the Amends. This reply

brief, together with some related correspondence, is

attached as Appendix C to the Petition. We say only

that, having been returned unfiled, it constitutes no part

of the record and that no complaint is now directed to

the return of the brief unfiled.

3

REASONS FOR DENYING THE WRIT

I. Because the Seventh Amendment has not been viewed

by this Court as applicable to trials in State Court,

the granting of the mistrial by Judge Poff does not

give rise to a substantial question of Federal Law.

The question presented for determination is stated

in the Petition in this language:

“Whether the Act of a Member of the Judiciary act-

ing in His Judicial Capacity Whereby He reexam-

ines Facts Tried by a Jury and Overturns the Jury’s

Verdict Constitutes a Substantial Federal Question

Pursuant to the Seventh Amendment to the United

States Constitution.”

This question is directed to Judge Poff’s declaring of a

mistrial in the suit tried in Potter County, Texas.

This Court has consistently held that the Seventh

Amendment relates only to trials in Federal Court and

that States are left to regulate trials in their own courts

in their own way. Cases supporting this statement in-

clude:

Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1876),

Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53

L.Ed. 97 (1908),

Wagner Electric Manufacturing Company v. Lyn-

don, 262 U.S. 226, 43 S.Ct. 589, 67 L.Ed. 961 (1923),

Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37

L.Ed.2d 522 (1973), and

Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39

L.Ed.2d 260 (1974).

In the case last cited, in footnote 6 to page 265 of 39

L.Ed.2d, we find this language:

“Moreover, the Seventh Amendment issue in this

case is in a very real sense the narrower ground of

decision. Section 812(a) expressly authorizes actions

to be brought ‘in appropriate State or local courts of

iia aatiadianaaaaeecmaaaeaaaieimiias |

4

general jurisdiction,’ as well as in the federal courts.

The Court has not held that the right to jury trial

in civil cases is an element of due process applicable

to state courts through the Fourteenth Amendment.

Since we rest our decision on Seventh Amendnient

rather than statutcry grounds, we express no view as

to whether jury trials must be afforded in § 812 ac-

tions in the state courts.” (Emphasis ours).

In the light of these cases, we say that there is no

violation of constitutional or other federally protected

right in Judge Poff’s granting of a mistrial.

II. Even under the Federal Court practice there would

have been no Seventh Amendment violation in the

granting of a mistrial.

Even in the federal court practice, where without

question the Seventh Amendment is applicable, it is held

that there is no Seventh Amendment violation in the ex-

ercise of the Court’s power to grant a directed verdict

or a summary judgment or in the remittitur practice.

Tarlton v. Exxon, 688 F.2d 973 (5 Cir. 1982); Gregg v.

U.S. Industries, Inc., 715 F.2d 1522 (11 Cir. 1983).

This fcllows from the fact that in granting directed

verdicts or summary judgments or in requiring remit-

titurs the Court is dealing with questions of law which

the Court must determine and which do not require the

intervention of a jury.

Support for this view is found further in C. A. Treat

Manufacturing Company v. The Standard Steel & Tron

Company, 157 U.S. 674, 15 S.Ct. 718, 39 L.Ed. 853

(1895). There the trial judge had directed a verdict,

and the complaint made to this Court was that this

denied the right of trial by jury. The holding of this

Court was that when the trial judge is satisfied upon

the evidence that the plaintiff is not entitled to recover

and that a verdict, if rendered for the plaintiff, must

be set aside, the Court may instruct the jury to find for

ai |

5

the defendant. Jf in so doing the Court errs as a matter

of law, the remedy lies in a review in the appropriate

court.

The Appendix to the Bank’s reply to the Amend mo-

tion for partial summary judgment tells the Court that

in accordance with Texas practice the jury had returned

as its verdict its answers to the special issues submitted

in the Court’s charge, that the Bank had filed a motion

for judgment non obstante veredicto, alternatively for

mistrial, alternatively for remittitur (R.pp. 293 to 308),

and that the question which thus faced Judge Poff was

whether any judgment could be rendered in favor of

plaintiff and, if so, for how much. A part of the prob-

lem was that the jury, while assessing punitive damages,

had found none of the facts essential under Texas law

to the assessment of punitive damages. Judge Poff re-

sponded to the Bank’s motion by declaring a mistrial.

In this there would have been no Seventh Amendment

violation even if the case had been tried, and the action

taken, in Federal Court.

The Amends make the purely conclusory allegation

that the jury’s answers entitle the plaintiff, James E.

Amend, to a specific damage recovery and thus this

petitioner was deprived of constitutionally and federally

protected rights when Judge Poff declared a mistrial.

The Amends have cited no cases supporting this view

and we find none.

III. The petition does not demonstrate the violation of any

constitutionally or otherwise federally protected right

by any act charged to the other judicial defendants.

The primary reference we detect in the petition to

the other judicial defendants is the statement, at pages

13 and 14 of the petition, that Judges Marshall, Black-

burn and Sheehan have all refused to hear Amends’ real

property title matters in their proper places of venue. It

is a sufficient reply that venue is necessarily determined

6

by the Texas statute. The Amends have cited no cases,

and we find none, suggesting even remotely that a

judge’s ruling on a venue question can accomplish a vio-

lation of constitutionally or otherwise federally protected

right.

IV. The existence of judicial immunity with respect to the

Amends’ demand for monetary damages is no longer

jan open question.

Although the Question Presented, as stated by the

Amends, is addressed to Judge Poff’s granting of a mis-

trial, the first reason stated for granting the writ is

that the question of judicial immunity remains an im-

portant question of federal law which has not been

settled by this Court. We find no justification for this.

Pulliam v. Allen, —— U.S. ——, 104 S.Ct. , 80

L.Ed.2d 565 (1984), leaves undisturbed the princinle

of judicial immunity with respect to damage demands.

This can hardly be regarded as an open question; but,

if there be any continuing yuestion as to the extent of

judicial immunity, this cannot be a reason for granting

a writ with respect to the non-judicial respondents.

}

Vv. The Amend suit was properly dismissed as to the non-

judicial defendants because the facts pleaded, if ac-

cepted as true, do not show that the non-judicial

defendants acted under cvlor of state law.

The complaints addressed to the respondent, Amarillo

National Bank, relate to the administration of a Trust.

For purposes of this discussion, we think it suffices to

say that the complaint asserts that in many and varied

particulars the Bank failed to perform its duties as a

fiduciary. This disagreement first reached the court-

house with the filing of two suits in Potter County which

were ultimately consolidated into the suit which was

tried in Judge Poff’s Court. Since that first suit there

have been a number of suits. In some of these the Bank

has been the defendant. The Bank’s position in each

7

of the cases to which it has been a party has been that

of a defendant. With respect to the other defendants,

excepting the State Court Judges, complaint is made of

acts which are said to have assisted the Bank and to

have harmed the Trust Beneficiary.

In Taylor v. St. Clair, 685 F.2d 982 (5 Cir. 1982),

at page 987, the Court says:

“It is axiomatic that in order to be entitled to re-

lief under 42 U.S.C. § 1983, a plaintiff must show

that he was deprived of a right secured to him under

the Constitution or federal law, and that the depriva-

tion occurred under color of state law. Flagg Broth-

ers, Inc. v. Brooks, 486 U.S. 149, 155-156, 98 S.Ct.

1729, 1733, 56 L.Ed.2d 185 (1978) ; Adickes v. S. H.

Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604,

26 L.Ed.2d 142 (1970); Herwald v. Schweiker, 658,

F.2d 359, 362, n.5 (5th Cir. 1981) ; Sims v. Jefferson

Downs, Inc., 611 F.2d 609, 611 (5th Cir. 1980). The

phrase ‘under color of state law’ found in 42 U.S.C.

$ 1983, reflects the ‘state action’ requirement of the

Fourteenth Amendment, consequently both phrases

express the same legal princip’e. Greco v. Orange

Memorial Hospital Corp., 513 F.2d 878, 877, n.7 (5th

Cir. 1975). cert denied 423 U.S. 1000, 96 S.Ct. 433,

46 L.Ed.2d 376 (1975); Parish v. National Colle-

giate Athletic Association, 506 F.2d 1028, 1031, n.6

(5th Cir. 1975).”

In Earnest v. Lowentritt, 690 F.2d 1198 (5 Cir. 1982)

at pages 1200, 1201, the Court says:

“Section 1983 does not reach all constitutional in-

juries, but only those caused by persons acting ‘un-

der color of state law.” 42 U.S.C. § 1988; Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729,

56 L.Ed.2d 185 (1978); Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d

477 (1974). To act under color of state law for

§ 1983 purposes does not require, however, that the

defendant be an officer of the state. Private acts or

8

conduct may incur liability under § 1983 if the indi-

vidual is a ‘willful participant in joint action with

the State or its agents.’ Adickes v. S. H. Kress &

Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.

2d 142 (1970), quoting United States v. Price, 383

U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267

(1966). Of course, the requisite ‘joint participation’

envisioned in Adickes goes beyond the mere use of

the state court system by private litigants in the

course of an ordinary lawsuit. As stated by this

Court in Hollis v. Itawamba County Loans, 657 F.2d

746 (5th Cir. 1981), ‘no state action is involved

when the state merely opens its tribunals to private

litigants.’ Id. at 749. Within the context of indi-

vidual dispute resolution, a private party acts under’

color of state law only when there is corruption of

judicial power by the private litigant. In Dennis v.

Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185

(1980), for example, the state court litigants bribed

the judge and obtained an injunction which deprived

their adversary of property. The private individuals

were considered to have acted under color of state

law for § 1983 purposes, regardless of the judge’s

immunity or liability.

“Even if this Court did read the complaint as al-

leging illegal joint action between the judge and the

defendants, the record is totally devoid of any facts

at all to support a finding that the state judge was

improperly or maliciously involved in the foreclosure.

Any assertion of illegal motive on the part of the

judge is purely conclusory, unsupported by any

pleaded facts.

“The Earnests also allege that the Lowentritts

acted under color of state law in undertaking the

foreclosure action and in acquiring the 850 acres by

sheriff’s sale. The Supreme Court has characterized

the private use of state legal procedures for purposes

of the Fourteenth Amendment as attributable to the

state only in situations where the state has created

9

a system which allows state officials to attach prop-

erty on ex parte application. See Sniadach v. Family

Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.

2d 349 (1969) (state created garnishment proce-

dure) ; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94

S.Ct. 1895, 40 L.Ed.2d 406 (1974) (execution of a

vendor’s lien to secure disputed property); North

Georgia Finishing, Inc. v. DiChem, Inc., 419 US.

601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (state cre-

ated garnishment procedures) ; Lugar v. Edmondson

Oil Co., US. , 102 8.Ct. 2744, 73 L.Ed.2d

482 (1982), (state replevin statute). A recent deci-

sion of this Court is illustrative. In Hollis v. Ita-

wamba County Loans, supra, an automobile buyer

who claimed that his car was seized from him by an

abuse of the state replevin proceedings was held to

have stated a presumptively valid § 1983 claim for

damages through improper use of state power. 657

F.2d at 750. In Hollis, unlike the situation in the

present case, the creditor was acting pursuant to a

state statute which permitted pre-judgment seizure

of property without benefit of a hearing. It is in

these ex-parte, prejudgment situations that the courts

have found the state is itself participating in’ the

deprivation of property, and the constitutional re-

quirements of due process apply. Private misuse of

a state statute alone does not describe conduct that

can be attributed to the state. It is the procedural

scheme created by the statute that is state action,

and therefore subject to constitutional restraints.

Lugar v. Edmondson Oil Co., supra. The absence of

a full adversary adjudication prior to seizure trig-

gers the constitutional due process issue since state

officers typically act jointly with a private creditor in

securing the property in dispute.

“Thus, it is not enough that the Lowentritts uti-

lized state court procedures to satisfy a debt owed by

Jesse Earnest. Nor can the State of Louisiana be

said to have compelled the defendant to bring the

foreclosure action. The fact that Louisiana permitted

10

the foreclosure and subsequent sale of the Earnest

land as the execution of a judgment obtained in the

private adversary proceeding is not sufficient to raise

the issue of state action. The Lowentritt foreclosure

on the mortgage given to him by Jesse Earnest was

a purely private dispute, immune from the coverage

of § 1983 lacking a showing of further state involve-

ment.”

The opinion continues then to discuss the requisites of

a conspiracy action under 42 U.S.C. 1985(3), the holding

being in substance that the failure to allege or prove any

racially-based animus underlying the conspiracy man-

dates the dismissal of the action.

In Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66

L.Ed.2d 185 (1980), at pages 189 and 190 of 66 L.Ed.2d,

the Court says:

“As the Court of Appeals correctly understood our

cases to hold, to act ‘under color of’ state law for

§ 1983 purposes does not require that the defendant

be an officer of the State. It is enough that he is a

willful participant in joint action with the State or

its agents. Private persons, jointly engaged with

state officials in the challenged action, are acting ‘un-

der color’ of law for purposes of § 1983 actions.

Adickes v. S.H. Kress & Co., 398 US 144, 152, 26

L Ed 2d 142, 90 S Ct 1598 (1979) ; United States v.

Price, 383 US 787, 794, 16 L Ed 2d 267, 86 S Ct

1152 (1966). Of course, merely 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. Under these allegations, the private par-

ties conspiring with the judge were acting under

color of state law; and it is of no consequence in this

respect that the judge himself is immune from dam-

ages liability.” (Emphasis ours).

li

In Arsenaux v. Roberts, 726 F.2d 1022 (5 Cir. 1982),

at page 1024, the Court says:

“A conspiracy cannot be divined from allegations

of trial errors, the ex parte amendment of the com-

plaint after improper communications, and the as-

sessment of court costs. To establish a cause of ac-

tion based on conspiracy a plaintiff must show that

the defendants agreed to commit an illegal act.

Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979).

The conspiracy. allegations made by Arsenaux are

conclusory, and more than a blanket of accusation is

necessary to support a § 1983 claim. Aldabe v. Al-

dabe, 616 F.2d at 1092, Slotnick v. Staviskey, 560

F.2d 31, 33 (1st Cir. 1977). See also Cole v. Gray,

638 F.2d 804, 811 (5th Cir.), cert. denied, 454 U.S.

838, 102 S.Ct. 144, 70 L.Ed.2d 120 (1981) ; Newbold

v. United States Postal Service, 614 F.2d 46, 47 (5th

Cir.) (per curiam), cert. denied, 449 U.S. 878, 101

S.Ct. 225, 66 L.Ed.2d 101 (1980).

“Arsenaux has failed to state any factual basis to

support the charge that his wife’s lawyer conspired

with the state trial judge. Mere conclusory allega-

tions of conspiracy cannot, absent reference to mate-

rial facts, survive a motion to dismiss.”

In Fullman v. Graddick, 739 F.2d 553 (11 Cir. 1984),

at pages 556 and 557, the Court says:

“In civil rights and conspiracy actions, courts have

recognized that more than mere conclusory notice

pleading is required. In civil rights actions, it has

been held that a complaint will be dismissed as in-

sufficient where the allegations it contains are vague

and conclusory. See, e.g., Burnett v. Short, 441 F.2d

405 (5th Cir. 1971) ; Guedry v. Ford, 431 F.2d 660

(5th Cir. 1970) ; Granville v. Hunt, 411 F.2d 9 (5th

Cir. 1969). In conspiracy cases, a defendant must

be informed of the nature of the conspiracy which is

alleged. It is not enough to simply aver in the com-

plaint that a conspiracy existed. See Ostrer v. Aron-

12

wald, 567 F.2d 551 (2d Cir. 1977); United States

Ex Rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir.

1976) ; see also Black v. United States, 534 F.2d 524

(2d Cir. 1976) ; Fine v. City of New York, 529 F.2d

70 (2d Cir. 1975). A complaint may justifiably be

dismissed because of the conclusory, vague and gen-

eral nature of the allegations of conspiracy. 2A J.

Moore & J. Lucas, Moore’s Federal Practice {| 8,17

[5] at 8-180, 181 (2Ed. 1984).”

In Phillips v. Mashburn, 746 F.2d 782 (11 Cir. 1984),

at page 785, the Court says:

“We note that the district court incorrectly dis-

missed Phillips’ action as an attempt to retry the

state lawsuit. Phillips’ allegations, if proven, might

entitle him to some relief: a state court judge, al-

though immune from damages under section 1983,

when acting in conspiracy with private defendants

can supply the state action nexus required for a sec-

tion 1983 suit. Dennis v. Sparks, 449 U.S. 24, 27-28,

101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980).

“Phillips’ complaint, however, makes no particu-

larized showing that a conspiracy existed between

the defendant lawyers and the judge; it only alleges

that the defendants won the lawsuit. Obviously, be-

ing on the winning side of a lawsuit does not make

a defendant a co-conspirator or a joint actor with

the judge who presided over the case. Id., at 28, 101

S.Ct. at 186. We must therefore decide whether the

district court erred by dismissing sua sponte an in

forma pauperis pro se complaint which alleged a cog-

nizable section 1983 action based on a conspiracy be-

tween a state judge and private defendants, but con-

tained inadequate supporting factual averments. ~

“We hold that the district court properly exercised

: its discretion in dismissing the complaint pursuant

to section 1915(d). The naked assertion of a con-

spiracy between a state judge and private defendants

without supporting operative facts provides an in-

13

sufficient state action nexus for a section 1983 ac-

tion. Sooner Products Co. v. McBride, 708 F.2d 510,

512 (10th Cir. 1983) .”

Repeatedly through their complaint petitioners charge

in general terms collusion, conspiracy and fraud on the

part of respondents. However, construing these allega-

tions as liberally as a pro se complaint is entitled to be

construed, we question that the complaint ever gets

around to alleging that any act of any judge was the

product of judicial corruption or the product of improper

agreement with any litigant or its attorney. If the com-

plaint can be so construed, it seems plain that petitioners’

allegations are purely conclusory and that no facts are

alleged which would warrant such a conclusion. Under

the cases cited this leads inevitably to the conclusion that,

so far as the respondents other than the State Judges are

concerned, there is missing altogether from the complaint

the essential element that these respondents acted under

color of state law. So far as these respondents are con-

cerned, petitioners’ suit was properly dismissed on the

pleadings.

VI. Giving the appropriate consideration to this Court’s

Rule 17, petitioners completely fail to demonstrate the

propriety of the writ of certiorari sought.

Petitioners speak of a decision below inconsistent with

the usual course of judicial proceedings and sufficient to

call for an exercise of this Court’s power of supervision.

This contention, though, is founded upon petitioners’ mis-

taken assertion that there has been a violation of peti-

tioners’ constitutionally or otherwise federally protected

rights in

(1) the mistrial declared by Judge Poff, and

(2) the venue rulings attributed to other judges.

To this it is a sufficient reply that petitioners nowhere

demonstrate that constitutionally or otherwise federally

‘4

protected rights are involved; and, in the absence of this,

there is no federal question,—certainly, none of sub-

stance. ,

Petitioners speak then of “obfuscation.” Here we find

it difficult to grasp just what the petitioners are saying;

but apparently petitioners contend that the respondents

have confused and beclouded the issues and that the courts

below have done likewise. So far as this petitioner,

Amarillo National Bank, and its attorneys, R. A. Wilson

and D. Barry Stone, are concerned, it should be a suffi-

cient reply that the positions taken find support in the

authorities cited and do not fairly lend themselves to the

charge of confusing or beclouding the issues. Certainly

the opinions below find complete support in the authori-

ties cited.

Petitioners inject the charge that attorney R. A. Wil-

son has filed false pleadings in the several state court

matters. This charge we challenge. The problem is that

the charge is completely foreign to the record before the

Court and debates in this area lend no aid to the solution

of the question here presented, whether there is any justi-

fication for the issuance of the writ of certiorari sought.

In addition to what has been said we refer briefly to

these further principles:

FIRST: A litigant may not seek a reversal of a state

court judgment simply by casting his complaint in the

form of a civil rights action. Hagerty v. Succession of

Clement, 749 F.2d 217 (5 Cir. 1984) and cSes cited.

SECOND: In a Section 1983 action this Court accords

to the prior state court judgments the :»me preclusive

effect that they would have in the stat» swwrts. Migra v.

Warren City School Dist. Bd. of Educ.. ~ US.

104 8.Ct. 892, 79 L.Ed.2d 56 (1984)

To the extent that petitioners’ co apiai.s are addressed

to judgments actually rendered ‘y «.e judicial defend-

’

15

ants, it is significant that there is complete silence in the

complaint with respect to any effort on the part of peti-

tioners to exercise the rights of appeal available to them

under siate law.

Petitioners demonstrate no reason at all why the writ

of certiorari sought should be granted.

CONCLUSION

The Respondent, Amarillo National Bank, speaks only

for itself and does not assert the right to speak for any

other Respondent. However, in asserting its own rights,

it must take into account each of the grounds upon which

petitioners seek the granting of the writ, even if those

grounds relate to other Respondents, and this it has done.

This Respondent submits respectfully that the petition for

writ of certiorari should be denied.

Respectfully submitted,

R. A. WILSON

(Counsel of Record)

D. BARRY STONE

UNDERWOOD, WILSON, BERRY,

STEIN & JOHNSON

1500 Amarillo National Bank

Building

P.O. Box 9158

Amarillo, Texas 79105

(806) 379-0355

Attorneys for Respondent,

Amarillo Nationai Bank

la

APPENDIX

Notice of Appeal From Federal Court, Civil Case

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

Civil Action No. CA-2-84-161

JAMES EF. AMEND, et al.,

Plaintiffs,

v.

H. BRYAN POFF, JR., et al.,

Defendants.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that James E. Amend and J. D.

Amend, the plaintiffs above named, hereby appeals to the

Supreme Court of the United States from the (affirma-

tion by the United States Court of Appeals, Fifth Circuit,

of the judgment of the trial court), entered in this action

on June 38rd, 1985.

This appeal is taken pursuant to 28 U.S.C. 1253

(Signed) /s/ James E. Amend

JAMES E. AMEND,

Pro, SE

/s/ J. D. Amend

J. D. AMEND, PRO, SE

Appellants,

615 Texas Commerce Bank Building

Amarillo, Texas 79109

(806) 352-7541