Petition for Writ of Certiorari — Kondrat v. O'Neill

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Scores Court, US,

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MAY 13 987

JOSECH F. SPANION, JR,

No. = CLERY

In the Supreme Court of the United States

October Term, 1986

ROBERT J. KONDRAT,

Petitioner,

VS.

JOSEPH E. O’NEILL, JOSEPH DONOFRIO and

EDWARD A. COX,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

ROBERT J. KoNpDRAT, Pro Se

29121 Chardon Road

Willoughby Hills, Ohio 44092

(216) 944-0140

Petitioner

“THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

1. Does the act of entrapment when used by judicial

officers violate the Fourteenth Amendment, due process

of law?

2. Does the act of entrapment apply only to a defense

in criminal action, or is the act applicable also to civil causes

of action?

3. Are judicial officers who engage in entrapment

protected by immunity?

a4

TABLE OF CONTENTS

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Constitutional Provisions Involved ...............222...::1::.eee00-+-

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Reasons for Granting the WYit -........2....eeecceeeeeeeeceeeeeeeees

1. That the act of entrapment is not restricted to

a defense in criminal action but is applicable

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2. That the use of entrapment in a civil cause of

action is a deprival of due process, in violation of

of the Fourteenth Amendment to the United

States Constitution. .............ccnsssnnceusennane

3. That judicial immunity from civil liability aris-

ing out of the discharge of judicial functions can-

not be provided to judicial officials who acted

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Appendix:

Order (February 17, 1987) and Mandate of the

United States Court of Appeals for the Sixth

Circuit (March 11, 1987) ........... Sl aac.

Judgment of the United States District Court,

Northern District of Ohio, Eastern Division

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Memorandum Opinion and Order of the United

States District Court, Northern District of Ohio,

Eastern Division (March 17, 1986) .........00000000....

Complaint Filed in United States District Court,

Northern District of Ohio, Eastern Division ........

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A3

A4

TABLE OF AUTHORITIES

Constitutional Provision

U. S. Const., Amend. XIV

No.

In the Supreme Court of the United States

October Term, 1986

ROBERT J. KONDRAT,

Petitioner,

VS.

JOSEPH E. O’NEILL, JOSEPH DONOFRIO and

EDWARD A. COX,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The Petitioner Robert J. Kondrat respectfully prays

that a Writ of Certiorari issue to review the Order of the

United States Court of Appeals for the Sixth Circuit

entered in this proceeding on February 17, 1987.

OPINIONS BELOW

The Order of the Court of Appeals is unreported and

appears in the Appendix hereto. The Judgment, Memo-

randum Opinion and Order rendered by the District Court

for the Northern District of Ohio, Eastern Division, are

also unreported and also appear in the Appendix hereto.

JURISDICTION

A Petition for Writ of Certiorari is sought of the Order

of the United States Court of Appeals, Sixth Circuit en-

tered February 17, 1987. This Court’s jurisdiction to re-

view the Order by Writ of Certiorari is Article III of

the Constitution of the United States which created the

Supreme Court of the United States as a constitutional

court giving judicial power to all cases, in law and equity,

that arise under the Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provision involved is the Fourteenth

Amendment to the United States Constitution as follows:

Amendment XIV

Section I

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

On April 10, 1985, the Petitioner brought action in

the United States District Court, Northern District of Ohio,

Eastern Division, against the Respondents who are three

3

judicial officers of the Ohio State Appellate Court system,

see App. p. A6. The complaint alleged entrapment of the

Petitioner by the Respondenis; and denial of due process,

Fourteenth Amendment. The District Court terminated

the action for lack of jurisdiction and failure to state a

claim upon which relief can be granted, see App. p. A4.

Thereafter, the Petitioner filed an appeal to the United

States Court of Appeals for the Sixth Circuit in which,

among other things, he argued that he was not ask-

ing a federal court to review a state court judgment.

The issues in the case were the constitutionality of the

use of entrapment by judicial officers and whether this

denied rights guaranteed by the Fourteenth Amendment

of the U. S. Constitution. The Sixth Circuit Court of Ap-

peals affirmed the District Court’s judgment stating that

a District Court cannot review a state court decision; that

entrapment is not a civil cause of action; and that judges

are absolutely immune. A copy of the Sixth Circuit Court’s

decision is contained in the Appendix, see App. p. Al.

REASONS FOR GRANTING THE WRIT

1. That the act of entrapment is not restricted

to a defense in criminal action but is applicable to civil

law as well.

William C. Burton’s Legal Thesaurus defines “EN-

TRAP” as follows:

“allure, bait, beckon, befool, beguile, bring unawares

into danger, bring unawares into evil, catch, catch by

artifice, deceive, decoy, draw as by a lure, draw by

artful inducements, draw in, dupe, enmesh, ensnare,

entangle, entice, fool, hold out allurements, hold out

4

for temptation, inveigle, lay a snare for, lay a trap

for, lead astray, lead by inducement, lead into dan-

ger by artifice, lead into temptation, lead on, lure,

lure into a compromising act, set a snare for, set a

trap for, snare, take in, tempt, trap, trip up.”

The Petitioner brought civil action in the state courts.

The defendant in the state court action counterclaimed

alleging that his reputation had been damaged because the

Petitioner had not kept the pleadings privileged. Although

the defendant in the state court action, and the Respon-

dents had known for years, prior to the action, the Peti-

tioner’s practice of not keeping the pleadings privileged,

the defendant in the state court action and the Respondents

never challenged, questioned or objected to the Petitioner’s

practices. Instead of the Respondents stepping forward

with an order for Petitioner to cease his practice, the Re-

spondents maintained a conduct which was to deceive and

set a trap, leading the Petitioner to an apprehension of a

condition other and different from that which exists. The

Respondents knew that the Petitioner was not an attor-

ney, and knew that the Petitioner had been forced into

representing himself.

The Petitioner relied upon the Respondents to make

known the court procedures not acceptable. By accepting

pleadings considered privileged, and remaining secret, the

Respondents misrepresented their official duty, luring the

Petitioner into a trap from which the Respondents could

then render a decision which would be unfavorable to the

Petitioner. The Court of Appeals’ ruling that entrapment

is not a civil cause of action is erroneous and not consis-

tent with fairness and justice. If entrapment is to be

restricted to only a defense to criminal action, then ju-

dicial bodies involved in civil litigation would be in the

h)

position to deceive any pro se candidate in quest of justice,

thus discouraging and shutting off access to the civil courts

to anyone who is not represented.

2. That the use of entrapment in a civil cause of

action is a deprival of due process, in violation of the

Fourteenth Amendment to the United States Constitu-

tion.

The Respondents’ deception is an abnormal course of

law administration in the court system. Entrapment is

not a part of those rules and principles which have been

established in our systems of jurisprudence for the en-

forcement and protection of private rights. The right of

the Petitioner to be informed that pleadings are priv-

ileged was not given by the Respondents. Tis was not an

orderly proceeding wherein the Petitioner was notified that

pleadings were privileged, where Petitioner had the oppor-

tunity to be heard and given the right to protect his rights

before a court. The Respondents kept silent leading the

Petitioner into believing that his actions were in accordance

with the law, and then at the opportune time; the Respon-

dents sprung the trap on the Petitioner affirming an award

of damages, rendered without the benefit of a trial, and

rendered in light of the fact that the defendant in the state

court action admitted to the truth of the allegations. This

is not due process of law.

3. That judicial immunity from civil liability

arising out of the discharge of judicial functions can-

not be provided to judicial officials who acted with

premeditation.

From previous cases, the Respondents knew that Peti-

tioner’s pleadings were not privileged. At no time during

this period was any notification given or order issued to

6

Petitioner that the pleadings were privileged. Thus, the

Respondents’ entrapment was started outside the framework

of the case judged. Respondents cannot claim absolute im-

munity for an act initiated while not under the umbrella

of judicial immunity. The fact that there have been

judges who have been removed from office; some who are

behind bars; and some who have made restitution for their

wrongs, would tend to disprove the argument of absolute

immunity from civil liability. No judge can be permitted

to commit a wrong arising while not in the discharge of

judicial functions, and then be allowed to run for the

judicial immunity umbrella as the Respondents have done.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the Order of the Sixth Circuit.

Litigation is not an evil. Over the course of centuries,

our society has settled upon civil litigation as a means of

redressing grievances, resolving disputes, and vindicating

rights when other means fail. That our citizens have ac-

cess to their civil court is not an evil to be regretted;

rather, it is an attribute of a system of justice in which

we ought to take pride. This quotation is even more true

today. .

Respectfully submitted,

ROBERT J. KONDRAT, Pro Se

29121 Chardon Road

Willoughby Hills, Ohio 44092

(216) 944-0140

Petitioner

Al

APPENDIX

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(Filed February 17, 1987)

MANDATE OF THE UNITED STATES COURT

OF APPEALS

(Issued March 11, 1987)

No. 86-3263

UNITED STATES COURT OF APPEALS

For THE SIXTH CiRCUIT

ROBERT J. KONDRAT,

Plaintiff-Appellant,

V.

JOSEPH E. O’NEILL; JOSEPH DONOFRIO;

EDWARD A. COX,

Defendants-Appellees.

[NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION ]

ORDER

BEFORE: Martin and NELson, Circuit Judges; and

Contig, Senior Circuit Judge.

Appellant appeals pro se from the district court’s

dismissal of his complaint for lack of subject matter ju-

risdiction and failure to state a claim upon which relief

A2

can be granted. The appeal has been referred to a panel

of the Court pursuant to Rule 9(a), Rules of the Sixth

Circuit. After an examination of the record and briefs, this

panel agrees unanimously that oral argument is not needed.

Rule 34(a), Federal Rules of Appellate Procedure.

Appellant alleges that the district court erred in con-

struing his complaint of entrapment by three Ohio court

of appeals judges as a request to review a state court

decision.

The district court properly construed the complaint

and properly dismissed it. A district court cannot review

a state court decision. District of Columbia Court of Ap-

peals v. Feldman, 460 U.S. 462, 482 (1983).

Entrapment is not a civil cause of action; entrapment

is only a defense to a criminal action. U.S. v. McLernon,

746 F.2d 1098, 1109 (6th Cir. 1984). Furthermore, judges

are absolutely immune to a suit for damages for actions

committed within their jurisdiction. Stump v. Spark-

man, 435 U.S. 349, 356-357 (1978).

Accordingly, the district court’s judgment is affirmed

pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE

COURT

/s/ JoHN P. HEHMAN

Clerk

ISSUED AS MANDATE: March 11, 1987

A3

JUDGMENT OF THE UNITED STATES

DISTRICT COURT

(Filed March 17, 1986)

No. C 85-1070

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT J. KONDRAT,

Plaintiff,

Vv.

JOSEPH E. O’NEILL, et al.,

Defendants.

JUDGMENT

LaMsros, District Judge

In accordance with the memorandum opinion and

order of this date in the above-captioned case, defendants’

motion to dismiss pursuant to Rule 12(b)(1) and (6) is

hereby granted. This action is dismissed and terminated.

IT IS SO ORDERED.

/s/ THomas D. Lamsros

United States District Judge

A4

MEMORANDUM OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed March 17, 1986)

No. C 85-1070

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT. OF OHIO

EASTERN DIVISION

ROBERT J. KONDRAT,

Plaintiff,

V.

JOSEPH E. O’NEILL, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Lamsros, District Judge

This is a pro se complaint brought against three judges

of the Ohio Court of Appeals to recover compensatory

and punitive damages for an alleged “entrapment” of plain-

tiff through the Court’s affirmation of a state trial court

judgment rendered against plaintiff. Present for con-

sideration is defendants’ motion to dismiss pursuant to

Rule 12(b) (1) and (6), Fed. R. Civ. P.

Pro se pleadings are to be liberally construed. Estelle

v. Gamble, 429 U.S. 97, 106 (1976). Such liberal con-

struction is necessary to compensate for the pro se litigant’s

lack of skill and experience in pleading.

A5

In considering a 12(b)(1) or (6) motion, the Court

must focus on whether the claimant is entitled to offer

evidence to support the claims made in the complaint,

rather than whether the plaintiff will ultimately prevail.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Plaintiff in the

case at bar is in reality asking this Court to review a

state court judgment. This is the province of the state

court system and not a United States District Court even

if the constitutionality of the state court’s action is raised.

District of Columbia Court of Appeals v. Feldman, 460

U.S. 467, 482 (1983). Hence, this Court must abstain

from considering plaintiff’s complaint.

Accordingly, defendants’ motion to dismiss is granted

and this action is dismissed for lack of jurisdiction over the

subject matter as well for failure to state a claim upon

which relief can be granted. Rule 12(b)(1) and (6),

Fed. R. Civ. P. .

This action is terminated.

IT IS SO ORDERED.

/s/ THOMAS D. LAMBROS

United States District Judge

A6

COMPLAINT FILED IN THE UNITED STATES

DISTRICT COURT

Case No. C 85-1070

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT J. KONDRAT,

Plaintiff,

VS.

JOSEPH E. O’NEILL, JOSEPH DONOFRIO,

EDWARD A. COX,

Defendants.

COMPLAINT OF ENTRAPMENT BY JUDICIAL

OFFICERS; AND COMPLAINT OF DENIAL OF

DUE PROCESS, FOURTEENTH

AMENDMENT

JURY TRIAL DEMANDED

COMPLAINT

The Defendants in the captioned case are three ju-

dicial officers of the Ohio Appellate Court. On April 1,

1985, the Defendants’ Judgment Entry and Opinion in

case no. 9-179 was filed in the clerk of court’s office in

Painesville, Ohio.

Case no. 9-179 was initiated in Court of Common Pleas

of Lake County. The complaint asked that defendant

Barry Byron, Law Director for the city of Willoughby

AT

Hills, return all monies derived from his exposed scheme

of fabricating criminal activity against Plaintiff, and

others, resulting fram the Recall of city officials in 1976.

Because Plaintiff had sent copies of the complaint to

others, Byron counter-claimed alleging injury to his repu-

tation. Without a hearing, trial or proof of injury, the

court of Common Pleas made an award and rendered a

decision in favor of Byron. Plaintiff appealed the decision

to the Court of Appeals of Ohio, Eleventh District, citing

the Fourteenth Amendment, due process of law.

On June 28, 1983, oral argument was heard by the

Eleventh Appellate District court in Painesville, Ohio.

The Plaintiff gave oral argument. The Defendant remained

silent, neither denying Plaintiff’s allegations nor giving

argument. After twenty months, the Appellate Court re-

turned a decision affirming the lower court’s decision on

judgment and damages.

On January 16, 1979, in a false arrest and malicious

prosecution case, a notice of appeal was filed in which the

last paragraph read as follows:

“Due to the number of people who are interested, but

appear to be uninformed about this case and others

which have stemmed from the Recall, a copy of this

notice and all future briefs and data on all cases will

be sent to the news media so that it may be reported

on, should the media wish to do so. In addition, the

Appellant’s files on any and all cases are open to the

media interested in knowing and/or reporting on past

events. Because of the Constitutional issues involved,

the people are as much a part of these cases as the

Appellant. Consequently, it is hoped that the people

will be kept informed and not clouded in an air of

secrecy.” (emphasis added)

A8

The foregoing paragraph appeared nearly thirty-nine

months prior to Byron’s counter-claim. Both Defendants

and courts were aware of the copies being sent. At the

time of appearance of the above paragraph no defendant

challenged or objected to the paragraph. Byron was aware

of what was going on. No court told the Plaintiff that he

was forbidden to send copies. And, all knew that Plain-

tiff was no lawyer. Consequently, the defendants and

courts accepted Plaintiff’s action. Furthermore, there is

no evidence to substantiate injury brought about by

Plaintiff.

However, the Defendants in the captioned case ruled

otherwise. Plaintiff alleges that the Defendants O’Neill,

Donofrio and Cox perpetuated an entrapment of Plaintiff

for the purpose of rescuing defendant Byron in case no.

9-179. Plaintiff alleges that the Appellate Court was aware

of the copies being sent, accepted it, then waited for the

proper time to entrap Plaintiff. Entrapment was the same

tactic employed by Byron, and other officials, to fabricate

criminal activity against Plaintiff, and others, in the Will-

oughby Hills Recall of 1976.

The use of entrapment by law enforcement agencies

such as the F.B.I. in the apprehension of criminals can

be condoned. The use of entrapment-by public officials to

fabricate criminal activity for the purpose of creating crim-

inals is barbaric and cannot be excused. And, the use

of entrapment by judicial officers to rescue and protect

those public officials is traitorous and a betrayal to the

honorable judiciary and to the American way of life. No

jury in this land would permit such behavior by public

officials or the judiciary.

As a result of the captioned Defendants’ actions which

continue to deprive Plaintiff due process of law and justice,

Ag

Plaintiff is injured and made to suffer emotional and bodily

harm and great mental anguish; and compelled to expend

money, time and expense related to the Defendants’ ac-

tions. Plaintiff asks judgment against Defendants, each

of them, jointly and severally, for compensatory damages

in the amount of $25,000,000 (Twenty-Five Million), for

punitive damages in the amount of $10,000,000 (Ten Mil-

lion), attorneys fees and all costs.

Respectfully Submitted,

/s/ Ropert J. KoNDRAT