Petition for Writ of Certiorari — Price v. Warnecke

To) ie Cj 4 ‘ tt > Oo?

( ~ ! JUL 4) GG i

}

No. * JOSEPH F. SPANICL, JR

Clues

aaa = ———

Supreme Court of the United States

OCTOBER TERM, |987

JOHN L. PRICE,

Petitioner,

V.

PATRICK W. WARNECKE,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

JOHN L. PRICE (PRO SE)

8276 HUFFINE LANE

BOZEMAN, MONTANA 59715

(406) 586-2713

EDITOR'S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

1.

QUESTIONS PRESENTED

If a federal appeals court contumaciously

refuses to address the issue of JUDICIAL

MALFEASANCE (especially when called upon

to take judicial notice of its occurrence),

is this court-sanctioned siience in the

matter sufficient to support the petitioner's

contention that his constitutienal right to

due process has been violated?

How can an appeals court (whose business it

is to deal with all sorts of criminality and

corruptive activity in the nation at large),

capriciously choose te overlook the skui-

duggery and malfeasance that has prevailed

within the court system itself, and evade the

responsibility of dealing with it as though it

did not exist?

a no

Under date of May 19, 1987, the

questions, above, were presented

to the 9th circuit judges in the

form of a challenge to cite the

law (or mandate) which gives the

court the right or prerogative to

not address the issue of JUDICIAL

MALFEASANCE. (appendix 57a, 58a,

| 598) s :

To date, no response has been

received to the challenge, ani

petitioner can reasonably assume

that none will be forthcoming.

a al

iii

TABLE OF CONTENTS

Questions Presented ....6.6.++-- coeceose i - ii

Table of COntentS ccocccccccccccscecese iii - iv

Table of Authorities ..cceseseseessese v

Title Page (introductory) csscccrscceee 1

Judgments Below cesccsesccesecesessses 2

JUPISdIictioN serccesescceseeceveesceses 3

Statement of the Case @esenweseeveveeeneee ee 4 = 22

Reasons for Granting the Writ ........ 23 = 24

Conclusions @eeeevsveeeeensenseseoeeeoense7eeeesees 25

Certificate of Service ccccscccceccece 26

APPENDIX

District Court ORDER dated 7-17-85. la

Magistrate's findings dated 4-30-85. supp. to la

Appeals Court judgment dated 5-2-86. 2a = 4a

Appellant's MEMORANDUM dated 5-24-86. 5a - 7a

Appellant's MEMORANDUM dated 6-25-86. 8a = 9a

Appellant's MEMORANDUM dated 7-8-86. 10a - lla

Appellant's MEMORANDUM dated 7-21-86. l2a - l3a

Appellant's MEMORANDUM dated 8-11-86. l4a - 15a

Supreme Court letter dated 8-18-86. l6a - 17a

Appellant's MEMORANDUM dated 9-10-86.

Supreme Court letter dated 9-22-86.

Appellant's application dated 9-25-86.

Supreme Court letter dated 10-1-86.

Appellant's MEMORANDUM dated 10-9-86.

Supreme Court letter dated 10-24-86.

Appeals Court ORDER dated 12-30-86.

Appellant's MEMORANDUM dated 1-7-87.

Appellant's MEMORANDUM dated 1-20-87.

Appeals Court ORDER dated 1-26-87.

Appellant's PETITION dated 2-3-87.

Appellant's MEMORANDUM dated 3-28-87.

Appellant's MEMORANDUM dated 4-6-87.

Appeals Court ORDER dated 4-9-87.

Appellant's MOTION dated 4-18-87.

Appeals Court letter dated 4-20-87.

Appellant's MEMORANDUM dated 5-4-87.

Appeals Ceurt ORDER dated 5-7-87.

Appellant's MEMORANDUM dated 5-19-87.

Supreme Court letter dated 7-9-87.

iv

PAGE

18a = 2la

22a - 23a

24a =- 27a

28a

29a = 30a

3la - 32a

33a

34a

35@

36a

37@

38a

39a - 40a

4la

42a - 50a

5la

92a = 55a

56a

57a =- 59a

60a - 6la

TABLE OF AUTHORITIES

CASES

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

McCollum v. Mayfield, 130 F. Supp. 112 (ND Cal.

1955) (ruling: refusal of prison authorities to

provide inmate with needed medical care action-

able under Federal Civil Rights Act.

STATUTES

42 U.S.C. Section 1983.

28 U.S.C. Section 1343.

REPORT ON CORRECTIONS (one of SIX reports of the

National Advisory on Criminal Justice Standards

and Goals dated Washington, D.C., January 23,

1973, pages 31-37, Standard 2-4, Standard 2-6,

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

» JOHN L. PRICE,

Petitioner,

Ve

PATRICK W. WARNECKE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, JOHN L. PRICE, respectfully requests

that a writ of certiorari issue to review the

judgment and opinion of the United States Court

of Appeals for the Ninth Circuit entered in this

proceeding on May 2, 1986 (appendix 2a, 3a, 4a).

Petitioner/plaintiff's appeal to the Ninth

Circuit Appeals Court had been for reversal of

the lower court's judgment; not affirmation.

JUDGMENTS BELOW

The District Court awarded summary

judgment in favor of the defendants

by the court's ORDER of 6-17-85.

The judgments by the Appeals Court

were rendered by:

The court's MEMORANDUM* of 5-2-86.

The court's ORDER of 12-30-86.

The court's ORDER of 49-87.

The court's ORDER of 5-7-87.

APPENDIX

la and

supplement

2a - ha

33a

4la

56a

JURISDICTION

The Appeals Court, on April 9, 1987, denied

appellant's petition for rehearing and rejected

the suggestion for rehearing en banc (appendix

41a) 4“

This petition for writ of certiorari is being

filed within 90 days of that date, plus the

21 days allowed (from July 9, 1987) by Rule

3327 due to the petition being returned to

petitioner for correction, and later for double-

spacing in lieu of the space-and-a-half compo-

sition that was dated July 24, 1987. (See

appendix 60a, 6la).

The jurisdiction of this Court to review the

judgment of the Appeals Court on issue of writ

of certiorari is mandated by 28 U.S.C. §1651¢e),

2241.

STATEMENT OF THE CASE

At the outset, petitioner wishes to emphasize

that he is proceeding PRO SE, and, while this

document as a whole may not be as well lawyerized

as the Court is accustomed to, petitioner will

make every conceivable effort to present his

case in understandable language, format and

continuity.

Petitioner alleges that both the District Court

and the Appeals Court violated the plaintiff/

appellant's constitutional right to due process

by committing acts of JUDICIAL MALFEASANCE, which

wrongfully led to the unjudicious judgments that

were rendered, causing unjustifiable harm to the

plaintiff/appellant.

The high court is requested to consider

petitioner's premise that a matter of justice

is at stake, necessitating reversal of the

judgments of the courts below.

Petitioner does not lay claim to any special

privileges or treatment. He is a native citizen

of the United States (despite having once been

incarcerated), and is entitled by constitutional

right to have access to the courts, and the

constitutional right to due process, fairly and

squarely administered without prejudice.

In positive terms: Petitioner concludes that

neither the District Court nor the Appeals Court

performed correctly, judiciously, legally,

competently, scrupulously or lawfully. It has

now become a matter for the United States Supreme

Court to settle.

The lawsuit in District Court amouats to allega-

tions against officials of the Montana State

Prison of deliberate indifference to prisoner's

needs for dental treatment and care.

The case was filed in District Court on September

23, 1981. On July 17, 1985, the U. S. District

Judge (W. D. Murray) approved the findings and

recommendation of the U. S. Magistrate, granting

summary judgment in favor of the defendants

(appendix la and supplement). Note the time-

span: 9-23-81 to 7-17-85.

Plaintiff appealed to the U. S. Court of Appeals

for the Ninth Circuit.

Appeals Court panel of 3 judges affirmed lower

court's judgment. Panel eventually granted motion

for rehearing with suggestion for rehearing en

banc (appendix 2a, 3a, 4a, 33a).

Appeals Court panel, on April 9, 1987, denied the

petition for rehearing and rejected the suggestion

for rehearing en banc (appendix 4la).

Petitioner believes that the Supreme Court can

best act on whether or not to issue the writ of

certiorari by reviewing (in whole) the appellant's

PETITION FOR REHEARING dated February 3, 1987

(appendix 37a):

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

(Cause No. CV 81-91-BU-WDM)

This petition for rehearing emanates from the

following 9th Circuit court documents:

1. Court ORDER filed under date of January

26, 1987.

2. Court ORDER filed under date of December

30, 1986.

NOTE that in this document the appell-

ant's name is mis-spelled as "PIERCE."

NOTE that this document carries the

suggestion for rehearing en banc.

Petitioner hereby acquiesces to rehearing by a

LIMITED EN BANC court as provided in 9th Circuit

Rule 25.

Petitioner will now proceed with reference to the

following documents, to present the arguments con-

tained in the ensuing POINT-BY-POINT discussion:

1. The (MODIFIED) BRIEF OF APPELLANT dated

December 13, 1985.

2. Appellant's EXCERPT OF RECORD dated

November 13, 1985.

3. Appeals Court MEMORANDUM® judgment filed

under date of May 2, 1986.

8

POINT 1. Probably the most significant factor of

this petition is centered in reference 3, above,

in which the document singled-out ONE aspect of

the case to conclude ("that he saw a prison den-

tist on at least five occasions ...."'), and with

this as a criteria the appeals court judges erron-

eously assumed that "Price had been adequately

treated."' Then, with this assumption, went on to

find that ("Price's claims represent a difference

of opinion between the type of treatment he pre-

ferred and what he received."). And it was

obviously this misconstruing of the treatment pro-

cess which caused the judges to favor the

institution and eventually affirm the lower court's

judgment (which also had erroneously been led to

believe that the treatment given to Price was

adequate and properly administered).

In fact, it was the lower court's deliberate act

of improperly (and with bias) covering for the

institution that brought about the whole unjudic-

ial mess of the appeals process — which, in the

appellant's opinion, could have been avoided if

the three circuit judges (Sneed, Alarcon and

Noonan) had thoroughly consulted the case file

for the evidence contained therein relative to

what treatment was given to Price during those

five visits to the prison dentist from June to

October, 1981, and how that treatment was

administered.

The defendants’ attorney (institutions lawyer

Nick Rotering) siezed upon this "five visits to

the prison dentist" aspect to wrongfully influence

the U. S. Magistrate who conducted the hearings.

Rotering cited the INTERROGATORIES, asserting

that "By his own admission, the plaintiff has

stated that he saw the dentist five times," then

led the magistrate to believe that Price had been

adequately treated.

The plaintiff/appellant did see through Rotering's

clever strategy. And it was because of this that

plaintiff submitted several pages of EXCERPTS from

the plaintiff's diary/journal. These pages are a

part of appellant's EXCERPT OF RECORD dated

November 13, 1985 — see pages 49-56.

10

THESE DIARY/JOURNAL EXCERPTS EXPLAINS IN DETAIL

THE FLOW OF EVENTS RUGARDING PLAINTIFF'S DENTAL

TREATMENT FROM 6-8-81 to 10-22-81.

The court is requested to consider a factor of

exceptional importance; which is, simply, that

throughout the entire proceedings in district

court, the defendants presented no defense whatso-

ever — either on their own initiative or through

the institutionge lawyer who represented then.

Neither did they refute any evidence presented by

the plaintiff. Consequently, there are no mater-

ial facts generated by the defense to render

ineffective the evidentiary documents produced by

the plaintiff to prove his case against the

defendants.

The plaintiff's diary/journal EXCERPTS were never

challenged, either in open court or by affidavit.

Consequently, the EXCERPTS documentary must stand

and be treated as accurate, unchallenged, and un-

refuted evidence to prove the allegation of

"deliberate indifference to a peisoner's serious

illness or injury." This allegation simply cannot

be judiciously regarded as some kind of a whim of

11

the plaintiff amounting to a "difference of

opinion."

POINT 2. The court's attention is invited to

pages 67-73 of plaintiff's EXCERPT OF RECORD.

These pages recapitulate the events of the liti-

gation at district court level over a period of

three and one-half years! — clearly depicting

one stumbling block after another to discourage

plaintiff from the pursuance of his constitutional

right to due process.

This amounts to much more than an "inference" of

judicial skulduggery — it is OVERWHELMING EVIDENCE

that the officiating magistrate fully intended

(from beginning to end) to scuttle the plaintiff

regardless of what cawe forth.

And if the magistrate might somehow attempt to

interject his "judicial integrity" into the record,

the court is reminded that Magistrate Shanstrom has

a long record of interjecting his own personal

curlycues into his court affairs when he was a

district judge for the state of Montana. And this

is substantially the reason why the electorate

12

voted him OUT of his judgeship before he took up

his position as a U. S. Magistrate. In the

instance of PRICE VS WARNECKE, Magistrate Shan-

strom offered himself up as a martyr to shield the

prison establishment and the state department of

institutions at any cost.

POINT 3. Petitioner now refers to pages 10-18 of

appellant's modified brief dated December 13, 1985,

regarding plaintiff's motion for declaratory judg-

ment (because of the defendants having defaulted),

and Attorney Rotering's motion for summary judg-

ment. Here is @ particular phase of judicial

misbehavior that cannot pass into oblivion with-

out due comment.

Plaintiff's motion for declaratory judgment caught

both Magistrate Shanstrom and Attorney Rotering by

surprise. Rotering had not acted before the expir-

ation of the time specification, thus placing the

defendants in the position of having defaulted.

Because of this, plaintiff was lawfully entitled

to take advantage of his adversary's goof-off and

pressure the court to render judgment in plain-

tiff's favor.

13

It has since been the plaintiff-appellant's

logical conclusion that Attorney Rotering pri-

vately approached Magistrate Shanstrom with a

what-to-do-now proposition. Obviously, it was

because of Shanstrom's reply-suggestion that

Rotering filed his "Defendants Motion for Summary

Judgment." If this were not so, why didn't

Rotering motion for summary judgment long before

the case had progressed to this point ?7?

But when the defendants Motion for Summary Judgment

was coupled with plaintiff's acquiescence (and

his own Motion for Summary Judgment), this changed

things just enough so that the magistrate ceuld

stretch out the powerful protectiye arm of the

judiciary and come up with the summary judgment

that totally favored the defendants. And in spite

of the plaintiff's countering response to the

magistrate's findings and recommendation, the

approving district judge bowed to the fraternalized

set-up by rubber-stamping the sly work of the

Rotering-Shanstrom alliance. See pages 36-43 of

appellant's brief dated December 13, 1985.

14

POINT 4 The word "totally," above, is underscored

for a purpose. On September 1, 1984, Magistrate

Shanstrom convened a $700,000 lawsuit involving a

man who was injured after falling down a laundry

chute (Berge vs Boyne USA Inc.). Shanstrom found

that Berge was 45 percent negligent because he was

drunk and erroneously entered the linen room

believing it was where the vending and ice machines

were. The restraining bars around the chute were

inoperative and the room was not locked, resulting

in Berge falling head-first into the chute, ultim-

ately breaking his back. Shanstrom made the

percentage deduction and awarded Berge $385,000

in damages.

Petitioner contends that the above amounts to

case law (a very legal tool used extensively in the

ccurtroom and in the appeals process). It could

lawfully be applied to the case at hand (PRICE vs

WARNECKE). Had the magistrate so extended his

percentage technique to this case, he would have

been hard put to find this plaintiff negligent by

ANY percentage — this plaintiff was imprisoned

and totally at the mercy of the prison estab-

lishment for health care.

15

POINT 5. Petitioner is of the opinion that if a

litigant in one case has been awarded damages on

a percentage basis (like in Berge vs Boyne USA,

Inc.), a litigant in another case (particularly

in the same court with the same magistrate pre-

siding), is lawfully entitled to the same treat-

ment. To rule it out would be ruling ina

discriminatory situation.

POINT 6. It seems appropriate at this point to

reemphasize some forceful language relative to

Nick Rotering's credibility as an attorney (esp-

ecially as an attorney representing the state).

Nothing could describe it more accurately than

the opening paragraph of a news item appearing in

the 10-27-84 edition of the Great Falls Tribune:

"District judge John McCarvel has rapped

the state of Montana with a $10,000 fine

for “reprehensible” delays and for pro-

viding "false, incomplete, misleading and

evasive answers in the factegathering stage

of a lawsuit filed against the state."

16

eeee "The state attorneys involved are John

Bobinsky of the Department of Administration

and Nick Rotering of the Department of

Institutions."

POINT 7. Petitioner now refers to his statement

under the heading FOREWORD on page 2 of Appell-

ant's brief dated December 13, 1985. Despite

Judge Farris' denial of appellant's motion for

leave to file an oversize brief after the orig-

inal brief (dated October 28, 1985) had been

transmitted to the court, the appellant viewed

the denial action as another stumbling block in

the maze of judicial bureaucracy to discourage

further pursuance.

According to a form notice from the clerk's office

(by Don McFarland, Deputy Clerk), dated November

5, 1985, the oversize brief was a minor discrep-

ancy which could be corrected simply by the

appellant filing a motion for leave to file an

oversize brief. Obviously, Judge Farris had

obtained a copy of the oversize brief from the

clerk's office and read through it before issuing

the ruling to deny the motion.

17

So be it. Notwithstanding the painstaking work

required to completely re-do the brief to get it

under 50 pages, appellant is still of the opinion

that his original brief containing a total of 74

pages was really not all that excessive and could

have been judiciously allowed to stand because

of the involvement cf a Related Case.

That related case involved appellant's lawsuit

against the Montana Board of Pardons for violat-

ing plaintiff's right to parole. It is of interest

to note that in July of 1986 (because of an ACLU

intervention in a clase action), the Ninth Circuit

Court of Appeals reversed the Butte Distriédt Court's

dismissal of a lawsuit filed by an inmate of the

Montana State Prison (a case identical in scope to

the appellant's case filed under Docket No. 82-3421).

POINT 8. As an end result of this rehearing pro-

cess, petitioner is asking the court to reconsider

its finding as contained in the MEMORANDUM®* judg-

ment filed under date of May 2, 1986, thence to

find in favor of the plaintiff/appellant and carry

out the judgment as requested on page 48 of

‘

18

appellant's brief dated December 13, 1985.

Dated at Bozeman, Montana, this ird day of

February, 1987.

/e/ JOHN L. PRICE

Petitioner-Appellant

von

End of appellant's PETITION

FOR REHEARING to the Ninth

Circuit Appeals Court.

The petitioner, now, presents 4 prime example in

this case of judicial deception (re: Appeals

Court MEMORANDUM® judgment filed under date of

May 2, 1986; appendix 2a, 3a, 4a). Paragraph 2

therein is as follows (verbatim et literatim):

"We affirm. Price raises no issues of mater-

ial fact, and the prison officials are entitled

to a judgment as a matter of law. See Amaro

v. Continental Can Co., 724 F.2d 747, 749

(9th Cir. 1984)."

Because of a nagging wonderment as to what rele-

vance a decision involving a worker's union (Amaro)

and the Continental Can Company could possibly

19

have to the appellant's case, petitioner con-

sulted the FEDERAL REPORTER and found the summary

of that case to be as follows:

"Case No. 83-5519. Former employees who were

laid off brought action alleging violations

of the Employment Retirement Income Security

Act. The United States District Court for the

Central District of California, Laughlin E.

Waters, Jr., entered judgment and former

employees appealed. The Court of Appeals,

Skopil, Circuit Judge, held that: (1) Arbitra-

tion award on grievance under collective

bargaining agreement was not res judica of

ERISA claims arising out of the same facts;

(2) Exhaustion of arbitration procedure was

not required under ERISA; and (3) Remand was

necessary to determine whether action should be

stayed pending arbitration of grievance.

Reversed and remanded."

And the Appeals Court, in inexcusable deception,

cited that case as a criteria which entitled the

prison officials (in appellant's case) to a judg-

ment as a matter of law! Honestly, if the instance

20

of deception were not so fatally serious, it

would, indeed, be ludicrous.

Here, it is glaringly obvious that some legal

intern or staff researcher glanced at a prepared

list of case rulings, picked one at random without

meticulously confirming its relevancy to the case

at hand, then handed it into the document-

preparation machinery of the court, to be ultin-

ately worked into the MEMORANDUM® judgment.

The circuit judges were no better equipped in

their citing expertise, and allowed it to remain

in the finalized judgment.

Now comes another deliberate instance of judicial

deception and intentional "cover-up" scheme, found

in the Magistrate's Findings and Recommendation

(supplement to appendix la, page 2) where it is

stated that "Defendants have filed a motion for

summary judgment with a supporting memorandum and

discovery documents ...."(underscoring is mine).

NO DISCOVERY DOCUMENT WAS EVER FILED! Such a docu-

ment had been committed in the defendants memorandum

but the institutions attorney failed to file any.

el

And this was one of the reasons why the plaintiff

moved for declaratory judgment by default.

And, here, petitioner presents another instance

of judicial error that is almost as clumsy (and

fatal) as the two described above. This time it's

a situation involving unethical judicial behav-

ior in the case proceedings:

After the Appeals Court had received appellant's

MEMORANDUM of May 24, 1986 (appendix 5a, 6a, 7a),

which was anything but complimentary to the three

judges involved (Sneed, Alarcon and Noonan), it is

to be noted that the same three judges remained

as the officiating panel in subsequent develop-

ments and case actions.

These three judges should have been removed from

the case upon receipt of appellant's MEMORANDUM

of May 24, 1986, and a new panel assigned, espec-~

ially since the appellant made it unmistakably

clear in his MEMORANDUM that he intended to con-

tinue the case into the U. S. Supreme Court.

By the original panel remaining in control of the

22

case after the appellant's MEMORANDUM of May 24th

had been received, this gave them the revengeful

opportunity to lie in ambush against the appell-

ant whenever the case-situation was appropriate

(which was exactly what they did by clever manip-

ulation. with appendices 33a, 4la).

REASONS FOR GRANTING THE WRIT

The judgment at District Court level was a farce

from beginning to end. The matter was in the

hands of the officiating magistrate for a period

of three and one half years; an official who was

determined to judge according to his own personal

viewpoints and standards, and who unscrupulously

and unjudiciously acted to coddle and protect the

prison officials and shield the state department

of institutions.

Even after the plaintiff was lawfully entitled to

have won the case by default, this magistrate (in

conspiracy with the institutions attorney) found a

stealthy way to scuttle the plaintiff and award

summary judgment to the defendants.

The District Judge who approved the findings and

recommendation of the magistrate could not possibly

have conscientiously and judiciously reviewed the

contents of the case file before rubber-stamping

his approval on the magistrate's findings and

recommendation.

24

The Appeals Court shenanigans are well documented

in the APPENDIX. Its judgment to the effect that

"Price raises no issues of material fact" (appen-

dix 3a) is prevaricative — the case file contains

adequate documentation of material fact in supp-

ort of the plaintiff-appellant.

The granting of this writ is essential so that

the Court can exercise its power of appellate

jurisdiction in overseeing the matter of JUDICIAL

MALFEASANCE that has prevailed in this case.

There are present exceptional circumstances

warranting the exercise of the Court's discretion-

ary powers, and judicial relief cannot be had in

any other form or from any other court.

25

CONCLUSIONS

Since it is not possible to deduce that the Dis-

trict Court, as well as the Appeals Court, acted

in the pursuit of justice, the petitioner has no

alternative but to conclude that both courts

acted overwhelmingly to scuttle the plaintiff/

appellant for the concerted purpose of shielding

the prison officials and protecting the state

department of institutions.

For the reasons that are conspicuously in evi-

dence throughout this whole petition, the writ

of certiorari should issue to review the judgments

of the District Court and the Appeals Court.

Dated at Bozeman, Montana,

this 30th day of July, 1987.

WO Lames

JOHN L. PRICE

Pétitioner

JOHN L. PRICE (PRO SE)

8276 HUFFINE LANE

BOZEMAN, MONTANA 59715

(406) 586-2713

CERTIFICATE OF SERVICE

This is to certify that this document has been

submitted by mail on this 30th day of July,

1987, as follows:

To Clerk of Court, U. S. Court

of Appeals for the Ninth Circuit,

P. O. Box 547,

San Francisco, California. 4 copies

Clerk of Court, U. S. District

Court, Room 273, Federal Bldg.,

Butte, Montana 59701. 1 copy

Nick A. Rotering, attorney,

1539 Eleventh Ave.,

Helena, Montana 59620. 1 copy

a” Lae

I8c L. PRICE

Petitioner

APPENDIX

la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

jaa FILED

JULY 17 1985

LOU ALEKSICH, JR. CLERK

By: Doreen F, Hugo

Deputy Clerk

JOHN L. PRICE,

Plaintiff,

ORDER

vs.

HENRY RISLEY, Warden, No. CV-81-91-BU

et al.,

Defendants.

The court hereby accepte and approves the

findings and recommendation of the United States

Magistrate.

THEREFORE IT IS ORDERED and this does order

that the defendants’ motion for summary judgment

be granted.

Done and dated this 17th day of July, 1985.

/e/ W. D. MURRAY

Senior United States District Judge.

supplement

to la (1)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

FILED

MAY 2 1985

LOU ALEKSICH, JR. CLERK

By: Doreen F. Hugo

Deputy Clerk

JOHN L. PRICE,

Plaintiff, Cause No. CV 81-91-BU

VS.

HENRY RISLEY, Warden,

OF U. S. MAGISTRATE

Sszeueeseeeeeseeeesueseees

et al.,

)

)

)

)

)

)FINDINGS and RECOMMENDATION

)

)

)

)

Defendants. )

)

Plaintiff John L. Price has filed this

against defendants Henry Risley, Patrick Warnecke

and Beverly Beck pursuant to 42 U.S.C. Section

1983. All of the defendants are employees of the

Montana State Prison. Defendant Risley is the

Warden. Defendant Warnecke is the Associate

Warden of Treatment. Defendant Beck is the head

nurse at the Prison Infirmary. Plaintiff is a

former Montana State Prisoa inmate.

supplement

to la (2)

The substance of plaintiff's complaint is

that between June 3, 1981 and October 22, 1981,

the date of his release, he did not receive ade-

quate care for his dental problems. Specifically,

plaintiff alleges that the above-named defendants

conspired to thwart plaintiff's efforts to receive

dental work and/or to ensure that plaintiff's

dental needs were ignored. Defendants have filed

a motion for summary judgment with a supporting

memorandum and discovery documents pursuant to

Federal Rule of Civil Procedure 56 on the ground

that there is no genuine issue as to any material

tact and that as a matter of law judgment should

be entered in their favor. Plaintiff filed a

motion for summary judgment in opposition to

defendants' motion with supporting documents.

The United States Magistrate first addresses

plaintiff's complaint concerning defendant Risley.

The record indicates that Henry Risley did not be-

come warden of Montana State Prison until august

of 1981 and had no involvement tn this action.

Plaintiff agrees that Warden Risley should be dis-

missed as a party to this action. The United

States Magistrate finds, therefore, that defendant

Risley should be dismissed as a party to this action.

See Bo tere tS See eee

supplement

to la (3)

Concerning plaintiff's claim against defend-

ants Beck and Warnecke, the record reflects

agreement among the parties as to the following

facts:

1. Plaintiff was incarcerated in the Montana

State Prison between June 3, 1981 and October 22,

1981, during which time he sought treatment for

dental problems.

2. On June 3rd plaintiff had an appointment

with the prison dentist, Dr. Keppler, who told him

that an abscess had formed over a bridgework- |

anchored tooth and that the tooth should be either

extracted or a root canal performed. Dr. Keppler

told plaintiff that this kind of work was not done

at the prison and he recommended that he see an

outside dentist.

3. On June 4th plaintiff sent a message to

defendant Warnecke concerning his need for special

dental treatment.

4, On June 9th C Unit Counselor Avery informed

the plaintiff that he could have dental work done

in Missoula, Helena or Deer Lodge providing that

he agreed to pay the bill and pay an escort guard

AEA Cicadas

bit seine

NOISE Alice

supplement

to la (4)

a fee for escorting him to and from the dentist

office. Counselor Avery @lso indicated that he

would set up another appointment for plaintiff with

the prison dentist.

5 On june 10th plaintiff saw Dr. Keppler, who

again informed him that an outside dental appoint-

ment would have to be made. Dr. Keppler indicated

he would arrange an outside appointment for

plaintiff.

6. On June 27th plaintiff wrote a letter to

defendant Warnecke reviewing his dental problems

and point out his difficulty in securing satis-

factory treatment.

7. On July 13, 1981, defendant Warnecke res-

ponded to plaintiff indicating that his answer to

plaintiff's June 4th message was delayed due to

contract negotiations concerning the Montana State

Prison dentist. He indicated to plaintiff that Dr.

Keppler, who did not perform root canals, was

underbid by Dr. Snyder who became the new prison

dentist. He stated that Dr. Snyder would be dis-

cussing plaintiff's options with him. Defendant

Warnecke's letter then stated:

ROG UOT Oye hil hy a A aa Na Sol

supplement

to la (5)

"You should be aware that in response to

your first kite of June 4th, I checked with

Dr. Keppler about your condition. at that

time he advised me that you were receiving

antibiotics for the abscess, that the par-

ticular tooth in question had no more than a

50-50 chance of being saved even with a root-

canal, and that it would be no less salvage-

able if you waited until after your discharge

date in October of 81 for the work to be

done.

As it stands now you should be able to have

a root canal done at the Montana State Prison

within the near future, presuming Dr. Snyder

finds such is needed in your case. You can

still pursue having your private dentist in

Bozeman do the work, but the State of Montana

will not be financially responsible."

8. On July 14th plaintiff was examined by the

new prison dentist, Dr. Snyder, who recommended

periodontal surgery to the upper-right quadrant

and who informed plaintiff that at this time a

root canal would be questionable.

eo Pine

a ee

supplement

to la (6)

9. On August 5th Dr. Snyder performed surgery

which involved cutting away the gum tissue around

the three-root molar exposing the base of the molar

so as to clean out the infectuous pocket.

10. On August llth Dr. Snyder performed a post-

operative checkup. He found the infectuous pocket

clean and the tooth solid and functioning normally.

He declared there was no need for root-canal work

and no further appointments were scheduled unless

complications developed.

ll. On September 13th plaintiff requested a

dental appointment and antibiotic medication for

recurring tooth abscess. Plaintiff did not receive

any medication until tne evening of September 16th.

12. On September 18th plaintiff saw Dr. Snyder

who prescribed antibiotic medication and pain-

killers for the next five days. Dr. Snyder indica-

ted to plaintiff that in view of the fact that he

would be released in a month, he should see his own

doctor about the problem. Medication was not made

available for plaintiff over the five-day pre-

scription period.

13. Plaintiff was released on October 22, 1981.

ly ON OT A tt Sh orth Ne ht

tts SG @

supplement

to la (7)

The standard for determining whether inade-

quate medical treatment or a lack thereof is a

constitutional deprivation under 42 U.S.C. Section

1983 was established in Estelle v. Gamble, 429

U.S. 97, 104 (1976). In that case the United

States Supreme Court indicated that deliberate

andifference to a prisoner's serious illness or

injury would state a cause of action under Section

1983. This would be true whether the indifference

was manifested by prison doctors or by other pri-

son personnel in interferring with access to

medical help. The Court indicated, however, that

an inadvertent failure to provide medical care was

not a constitutional deprivation and that a com-

plaint that a physician had been negligent in

diagnosing or treating a medical condition did not

state a valid claim. Id, at 106.

In applying this standard to the facts of

this case, the United States Magistrate finds that

defendants Warnecke and Beck were not guilty of

acts or omissions evidencing deliberate indiffer-

ence to plaintiff's medical needs or conspiring to

ignore plaintiff's pain and suffering due to his

supplement

to la (8)

dental problems. Whether plaintiff received the

treatment which would have been best for him is a

question this Court need not address as a medical

malpractice does not become a constitutional vio-

lation becaus?2 the victim is a prisoner. Id, at

106. The record reflects that plaintiff's medical

condition was not ignored or treated in a way mani-

festing deliberate indifference. The record also

does not support plaintiff's contention that defen-

dants Warnecke and Beck attempted to interfere with

plaintiff's receiving adequate dental care.

RECOMMENDATION

The United States Magistrate recommends that

defendants’ motion for summary judgment be

granted. In view of the facts described above,

defendants, as a matter of law, have not violated

plaintiff's constitutional rights to adequate

medical treatment while incarcerated at the Mon-

tana State Prison.

DONE and DATED this 30th day of April, 1985.

/s/ JACK D. SHANSTROM

United States Magistrate

2a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAY 2 1986

Cathy A. Catterson,

Clerk, U.S.Court of Appeals.

JOHN L. PRICE,

Plaintiff-Appellant, No. 85-4076

V8. D.C. #CV 81-91-BU-WDM

PATRICK W. WARNECKE, MEMORANOD U M*

Defendant-Appellee.

a a ae ee ee ee

Appeal from the United States District Court

for the District of Montana

William D. Murray, District Judge, Presiding

Submitted: April 3, 1986

Before: SNBED, ALARCON and NOONAN, Circuit Judges

John Price, appearing pro se, appeals district

court's order granting summary judgment for Mon-

tana state prison officials in Price's 42 U.S.C.

$3 1983 action. Price alleged that he suffered

deliberate indifference to a serious medical con-

dition because he was denied dental treatment for

his abscessed tooth.

3a

We affirm. Price raises no issues of material

fact, and the prison officials are entitled toa

judgment as a matter of law. See Amaro v. Contin-

ental Can Co., 724 F.2d 747, 749 (9th Cir. 1984).

In order to rise to a level of a violation of

the eighth amendment, a punishment must be "incom-

patible with the evolving standards of decency

that mark the progress of a maturing society ... or

ee. involve the unnecessary and wanton infliction

of pain." Estelle v. Gamble, 429 U.S. 97, 102-03

(1976). To state a claim under section 1983 for

wrongful medical treatment, the plaintiff must

allege “deliberate indifference to a prisoner's

serious illness or injury." Id at 105.

A difference of opinion between the prisoner

and prison medical officials is insufficient to

state a claim under section 1983. Franklin v.

Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

The undisputed facts demonstrate that Price

was treated for his abscessed tooth. He saw a

prison dentist on at least five occasions in an

eight-month period and received, what he consid-

ered, partial treatment for the abscess. At most,

Price's claims represent a difference of opinion

between the type of treatment he preferred and

what he received. That difference of opinion does

not rise to the level of deliberate indifference

to Price's serious medical need and, accordingly,

is not actionable under section 1983. Id. More-

over, Price received dental treatment compatible

with society's evolving standards of decency. See

Estelle, 429 U.S. at 102.

AFFIRMED.

. This disposition is not appropriate for

publication and may not be cited to or by the

courts of this circuit except as provided by 9th

Cir. R. 2l.

“! i Ae lai aS aia

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM May 24, 1986.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

This refers to the court's MEMORANDUM®

filed under date of May 2, 1986.

Re: Docket No. 85-4076

(D.C. AV S1n9i cB =aDny

By this instrument, the Ninth Circuit Judges

Sneed, Alarcon and Noonan are hereby informed that

plaintiff does not consider the case to be properly,

and legally processed unless (and until) ALL the

issues contained in plaintiff's brief dated Decem-

ber 13, 1985 (pages 4 & 48) are fully addressed

(I repeat, FULLY addressed). The issues which were

conveniently "swept under the rug" by the officiat-

ing judges were issues when the case was filed —

and they remain issues until they are processed

without prejudice and the legal-weevil cover-up

technique.

j

4

ee i ens ae

6a

Plaintiff is of the opinion that if the judges

named above are intelligent enough to address the

single issue contained in the court's MEMORANDUM*,

it would subsequently follow that they should be

capable of addressing the issues of the illegal

actions of both the district court and the appeals

court, and the judicial malfeasance involved.

Failure of the appeals court to fully address all

the issues of the case will provide plaintiff with

legal grounds to petition the JU. S. Supreme Court

for a writ of certiorari.

By copy hereof, the Clerk of Court, UNITED STATES

SUPREME COURT, is hereby notified of plaintiff's

intent to petition for a writ of certiorari in the

event that the appeals court fails to address the

issues of the case as stated above.

In addition to fully addressing the issues so

stated, the appeals court is requested to inform

the plaintiff as to what action is being taken to

compensate the plaintiff for damages due to the

illegal actions and judicial malfeasance cited

in the case brief.

pore

eee ere ee oe ee

7a

/s/ JOHN L. PRICE

Plaintiff-appellant

Copy to:

Clerk, U. S. District Court, Butte, MT.

Nick A. Rotering, attorney,

1539 Eleventh Ave., Helena, MT 59620.

8a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM June 25, 1986.

To: Clerk of Court,

UNITED STATES SUPREME COURT

Washington, D.C. 20543.

Re: My MEMORANDUM to Clerk, U. S. Court

of Appeals for the Ninth Circuit,

San Francisco, dated May 24, 1986.

A copy of the document in reference was submitted

to your office (copy is attached hereto). Your

attention is respectfully directed to paragraph 4

therein.

A time span of one month has elapsed since my

MEMORANDUM of 5-24-86 was transmitted to the

clerk of the appeals court. To date, plaintiff

has received no response, nor any communication

which would indicate that a response would be

forthcoming. Plaintiff is therefore entitled to

assume that the appeals court judges prefer to

remain furtively silent.

Plaintiff now claims that he has legal grounds to

petition the UNITED STATES SUPREME COURT for a

writ of certiorari and will proceed to do so.

The clerk of the United States Supreme Court is

hereby requested to act as follows:

1. ASsign a docket number to the case so that

plaintiff may officially and formally open

proceedings.

2. Inform plaintiff of the deadline date for

the petition to be filed.

3. Furnish plaintiff with all appropriate

forms, along with guidelines and instruct-

ions for petitioning the court.

/s/ JOHN L. PRICE

Plaintiff-Appellant

Copy to:

U. S. District Court, Butte, Montana.

U. S. Appeals Court for the Ninth Circuit.

Nick A. Rotering, attorney, Helena, MT.

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM July 8, 1986.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit.

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

(D.c. AV 81-91-BU-WDM)

1. Appeals Court MEMORANDUM* filed

under date of May 2, 1986.

2. My MEMORANDUM to Clerk, Appeals

Court, dated May 24, 1986.

3. My MEMORANDUM to Clerk, U. S.

Supreme Court, dated June 25, 1986.

In response to reference 3, plaintiff received a

booklet entitled "RULES of the Supreme Court of

the United States. It is unmistakably clear that

a petition for writ of certiorari cannot properly

be filed until plaintiff has petitioned the appeals

court for rehearing of the case and is either

denied or the initial appeals court judgment is

upheld.

Plaintiff did not petition the appeals court for

@ rehearing. To have done so would have been

nugatory in scope, since the appeals court judges

Aa Chalets en ate:

>

lla

had already signified their intentions to scuttle

the plaintiff by singling out one aspect in the

case file and shaping it falsely so as to justify

a judgment in favor of the defendants.

Plaintiff acknowledges the fact that the deadline

date to petition for a rehearing has long ago

expired (14 days after date of judgment).

Plaintiff now requests that the appeals court

issue a statement which, in essence and effect,

will constitute a reply to reference 2, and that

which is contained herein. Plaintiff will then

submit the statement to the U. S. Supreme Court

in lieu of the document indicated in paragraph l,

above.

Any overture by the appeals court to now offer a

rehearing of the case will be considered a volun-

tary move and not necessarily that one has been

requested by the plaintiff.

/s/ JOHN L. PRICE

Copy to: Plaintiff-Appellant

U. S. District Court, Butte, Montana.

U. S. Supreme Court.

Nick A. Rotering, attorney, Helena, MT.

baa Ble Aa ee eee

l2a

8276 Huffine Lane,

Bozeman, Mentana 59715.

MEMORANDUM July 21, 1986.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

(D.C. ACV $1-91-BU-WDM )

My MEMORANDUM to Clerk, Appeals Court,

dated July 8, 1986.

To date, plaintiff has not received a response to

the MEMORANDUM in reference, and assumes that none

will be forthcoming. Plaintiff can easily under-

stand why the honorable and noble appeals court

judges (Sneed, Alarcon and Noonan) have chosen to

pursue the well-known CYA course of action, which

includes the systematic silence and connivance.

The court clerk is hereby requested to furnish

plaintiff with a quotation of the applicable law

governing the assignment of circuit judges to cases

before the court (to-wit: the number of judges

required)/ Plaintiff submitted FIFTEEN copies of

his brief according to the court rules, which

implies that fifteen judges would enter into the

l3a

review and judgment process, In thia case, only

three judges officiated. How come?

| In addition to the above, the court clerk is re-

quested to furnish answers to the following

questions:

i ee pe

A. What is plaintiff's deadline date for fil-

ing the petition for writ of certiorari?

B. What is the filing fee for the writ?

C. Does plaintiff submit his petition for writ

of certiorari to the clerk of the appeals

court, or directly to the clerk of the

U. S. Supreme Court?

/3/ JOHN L. PRICE

Plaintiff-Appellant

Copy to:

U. S. Supreme Court

U. S. District Court, Butte, Montana.

Nick A. Rotering, attorney, Helena, MT.

l4a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM August 11, 1986.

To: Clerk of Court,

UNITED STATES SUPREME COURT,

Washington, D.C. 20543.

Re: Docket No. 85-4076 (U.S.Court

of Appeals for the Ninth Circuit).

This is to acknowledge receipt (with thanks) of

the copy of the "RULES of the Supreme Court of the

United States" and the sample proceedings on how

TO FILE FOR WRIT OF CERTIORARI IN FORMA PAUPERIS.

Petitioner cannot meet the statutory requirements

to proceed as an indigent. Throughout the case

(including the appeals process), petitioner has

proceeded as a pro se litigant.

NEW SUBJECT

This will also serve to inform your office that,

to date, petitioner has not received any response

to the following documents:

1. MEMORANDUM to Clerk of the appeals court,

dated Hay 24, 1986.

2. MEMORANDUM to Clerk of the Appeals court

dated July 8, 1986.

3. MEMORANDUM to clerk of the appeals court

dated July 21, 1986.

Because of the failure of the appeals court to

respond to the documents described above, petit-

ioner has been unable to proceed with his

petition for writ of certiorari. Petitioner has

no choice but to assume that the appeals court

has deliberately withheld responses to the docu-

ments indicated so as to thwart the petition for

the writ. In petitioner's opinion, this clearly

amounts to a judicial conspiracy to deny

plaintiff/petitioner his right to due process.

In view of the above, information is requested as

to whether or not there is substantial justifica-

tion to make application for extension of time

within which to file a petition for writ of certio-

rari (under Rule 20), or to file an application

for an Extraordinary writ (under Rule 27).

/s/ JOHN L. PRICE

Plaintiff-Appellant

U. S. District Court, Butte, Montana

Re: CV # 81-91-BU-WDM.

U. S. Court of Appeals for the Ninth Circuit.

Nick A. Rotering, attorney, Helena, Montana.

ete

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

August 18, 1986

Mr. John L. Price

8276 Huffine Lane

Bozeman, MT 59715

Re: John L. Price

Dear Mr. Price:

In reply to your most recent letter, I regret

to inform you that it is not possible for a member

of the staff of this office or a justice of this

Court to answer the questions you present.

In order for an application for an extension

of time to be filed, a copy of the lower court

orders and opinions should be attached pursuant

to Rule 20.6 of this Court.

An application for an extension of time must

set out the grounds on which the jurisdiction of

this Court is invoked and must identify the judg-

ment sought to be reviewed. You should also

specify in your application for an extension of

time the amount of time you are requesting, your

17a

reason(s) why the granting of an extension is

deemed justified, and you must attach a certif-

icate of service that provides the name and address

of counsel for the opposing party. See Rules

| 20, 28, 29, and 43 for information on filing an

application for an extension of time.

Very truly yours,

JOSEPH F. SPANIOL, JR., CLERK

by /s/ Edward F. Turner, Jr.

Assistant Clerk.

18a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM September 10, 1986.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

This document is transmitted with the direction

and understanding that it will be brought to the

attention of Ninth Circuit Judges Sneed, Alarcon

and Noonan (the three "honorables" who were pur-

portedly in agreement with the contents of the

MEMORANDUM*® judgment which was filed under date

of May 2, 1986).

This will also serve to remind your office and

the judges (again) that, to date, plaintiff/appell-

ant has not received a response to the following

documents:

1. My MEMORANDUM to clerk of the appeals

court dated May 24, 1986.

2. My MEMORANDUM to clerk of the appeals

court dated July 8, 1986.

3. My MEMORANDUM to clerk of the appeals

court dated July 21, 1986.

19a

Because of a previous illegal performance by the

appeals court (in the case bearing Docket No.

82-3421, processed during Phillip B. Winberry's

tenure as clerk of court), the plaintiff/appell-

ant has compelling reason to believe that a

surreptitious directive has been handed down from

a formidable power within the system to the present

clerk of court (Cathy A. Catterson) to refrain

from responding to any correspondence from the

plaintiff/appellant — which essentially adds

another factor to the charge of judicial

conspiracy.

Plaintiff/appellant has now visualized that the

appeals process of this case has been a connived

judicial scheme from the beginning -= and this

statement implies that the case was intentionally

singled out for preferential treatment in favor

of the defendants regardless of the case-file

evidence. It is more than likely that the

following occurred:

eT

20a

1. Because of the appellant's pursuance of the

case as a "pro se" litigant (and a former

prison inmate), it was arranged for a subor-

dinate staff member to prepare the judgment,

using whatever legal jargon as would be

necessary to favor the defendants. Conse-

quently, none of the assigned judges ever

consulted the whole case as presented in

appellant's brief dated December 13, 1985.

2. The staff member was further instructed to

prepare the judgment as a MEMORANDUM®*.

After reading the criteria contained in 9th

Circuit Rule 21, the appellant can easily

understand why the court wouldn't want this

case to be published, or the author of the

judgment revealed.

But due to the appellant's follow-up actions after

the "honorable" MEMORANDUM*® judgment was received

(especially the appellant's MEMORANDUM dated May

24, 1986), the three judges all looked into the

mirror at the same time and observed each other

caught with their pants down. Whenever this

ela

occurs in our country's various bureaucratic

systems, it invariably and systematically follows

that the powers within will pursue every conceiv-

able means to cover it up, doing whatever needs to

be done until the threatening situation goes

away, (Example #1: Watergate)(Example #2: Clai-

borne)( Example #3: Hastings).

Plaintiff/appellant intends to pursue an appeal

to the United States Supreme Court by whatever

means are available.

/s/ JOHN L. PRICE

Plaintiff-Appellant

Copy to:

U. S. Supreme Court.

U. S. District Court, Butte, Montana.

Nick A. Rotering, attorney, Helena, MT.

22a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

September 22, 1986

Mr. John L. Price

8276 Huffine Lane

Bozeman, Montana 59715

Re: John L. Price

Dear Mr. Price:

Your letter addressed to the United States

Court of Appeals for the Ninth Circuit indicating

that you intend to submit an application for an

extension of time within which to file a petition

for a writ of certiorari to this Court in the

above-entitled case was received on September

15, 1986. In order for an application for an

extension of time to be filed, a copy of the lower

court's opinion and order denying rehearing, if

appropriate, should be attached pursuant to Rule

20.6 of the Rules of this Court.

An application for an extension of time must

set out the grounds on which the jurisdiction of

this Court is invoked and must identify the judg-

ment sought to be reviewed. You sheuld also

specify in your application for an extension of

time the amount of time you are requesting, your

reason(s) why the granting of an extension is

deemed justified, and you must attach a certif-

icate of service that provides the name and

address of counsel for the opposing party. See

Rules 20, 28, 29 and 43 for information on filing

an application for an extension of time.

Very truly yours,

JOSEPH F. SPANIOL JR., CLERK

By /s/ Edward L. Turner, Jr.

Assistant Clerk

IN THE 24a

SUPREME COURT OF THE UNITED STATES

WASHINGTON, D.C.

JOHN L. PRICE,

PlaintiffeAppellant-

Petitioner APPLICATION FOR EXTEN-

-Vs- SION OF TIME WITHIN

U. S. COURT OF APPEALS ) WHICH TO PETITION THE

FOR THE NINTH CIRCUIT

(JUDGES SNEED, ALARCON

AND NOONAN) AND CLERK

OF COURT,

COURT FOR WRIT OF

CERTIORARI.

Defendants-Appellees

we we OS SS NS Se SS Se 8 SY NS OS SS SS SY

The petitioner.(JOHN L. PRICE) hereby informs the

high court that he has been forced to pursue this

course of action due to the illegal and unscrupul-

ous actions of the courts below.

A simple matter of justice is at stake. Petition-

er has no alternative but to insist that judicial

malfeasance has been committed, leaving petitioner

with the option of doing nothing or something

about it. The only recourse is for the case to

proceed now to the supreme court, serving notice

that lower courts may not engage in skulduggerous

performances and rely on their arrogance and

built-in power of office to deny responsibility

and to circumvent exposure. within ANY framework

of institutional scope, there is nothing more

25a

hideous to behold than a malfunctioned judicial

power.

But before the petitioner is enabled to present

the whole matter to the high court, it is essen-

tial that an extension of time be provided so that

a petition for writ of certiorari may be prepared

and presented.

Petitioner sees no need to enter into an extensive

geezil-worded disquisition designed to influence

@ ruling on the application. The enclosures are

either sufficient to support the petitioner's

application, or they are not.

Accordingly, petitioner hereby makes application

for such time (in extension) as may be stipulated

by the court.

Enclosures to the application consist of the

following documents:

(1) Undated (unsigned) MEMORANDUM* ruling of the

U. S. Court of Appeals for the Ninth Circuit,

filed in the clerk's office under date of

May 2, 1986.

‘

26a

(2) My MEMORANDUM to clerk of the appeals court

dated May 24, 1986.

(3) My MEMORANDUM to clerk of the appeals court

dated June 25, 1986.

(4) My MEMORANDUM to clerk of the appeals court

dated July 8, 1986.

(5) My MEMORANDUM to clerk of the appeals court

dated July 21, 1986.

(6) My MEMORANDUM to clerk of the supreme court

dated August 11, 1986.

(7) Letter from clerk of the supreme court

dated August 18, 1986.

(8) My MEMORANDUM to clerk of the appeals court

dated September 10, 1986.

/s/ JOHN L. PRICE

Plaintiff-Appellant-Petitioner

Dated at Bozeman, Montana,

this 25th day cf September, 1986.

27a

CERTIFICATE OF SERVICE

This is to certify that this document has been

submitted to the defendants (Judges Sneed, Alarcon

and Noonan) via Clerk of Court, U. S. Court of

Appeals for the Ninth Circuit, and to the clerk,

this 25th day of September, 1986.

Copy to:

U. S. District Court, Butte, Montana.

Nick A.’Rotering, attorney, Helena, MT.

/s/ JOHN L. PRICE

Plaintiff-Appellant-Petitioner

28a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

October 1, 1986

Mr. John L. Price

8276 Huffine Lane

Bozeman, MT 59715

Re: John L. Price v. Patrick W. Warnecke

Dear Mr. Price:

The application for an extension of time within

which to file a petition for writ of certiorari in

the above-entitled case was received October l,

1986, and is herewith returned as out-of-time. As

the United States Court of Appeals for the Ninth

Circuit entered judgment on May 2, 1986, the

petition for writ of certiorari was due on or

before July 31, 1986. See 28 U.S.C. 2101(c).

Likewise, an application for an extension of time

must have been submitted by that date. See Rules

29.2 of the Rules of this Court.

Very truly yours,

JOSEPH F. SPANIOL, JR., CLERK

by /s/ Christopher W. Vasil

Deputy Clerk

29a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM October 9, 1986.

To: Clerk of Court,

Supreme Court of the United States,

Washington, D.C.

ATTENTION: Christopher W. Vasil, Deputy Clerk.

Re: John L. Price v. Patrick W. Warnecke

This will serve to acknowledge receipt of your

letter dated October 1, 1986, by which you re-

turned my application for extension of time with-

in which to file a petition for writ of certiorari

dated September 25, 1986, citing the reason as

“out of time."

A reading of the enclosures to the application

makes it understandebly clear that it was due to

the confounding actions of the 9th circuit appeals

court that I was unable to get the petition to

your office in time.

I am herewith resubmitting the application

(intact) by invoking Supreme Court Rule 43,

which allows an application to be addressed to

an individual justice. It is requested that the

application be delivered to Justice Scalia with-

out further delay.

/2/ JOHN L. PRICE

Plaintiff-Appellant-Petitioner

Copy to:

Nick A. Rotering, Esq., Helena, MT.

3la

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

October 24, 1986

Mr. John L. Price

8276 Huffine Lane

Bozeman, Montana 59715

Re: John L. Price v. Patrick W. Warnecke

Dear Mr. Price:

Your application for an extension of time

within which to file a petition for a writ of

certiorari in the above-entitled case was

received again on October 14, 1986 and is

returned for the reasons set forth in Mr.

Vasil's letter of October 1, 1986.

Please note that such an application should

have been filed with the Clerk of this Court

within ninety (90) days of the entry of the

judgment by the United States Court of Appeals

for the Ninth Circuit. Once the ninety (90) day

period has expired, this Court has no authority

32a

to review the case and the Clerk is directed by

the rules of the Court not to file the petition.

The time to file such a petition is determined by

an Act of Congress and the Court may never over-

rule that time period as set by Congress.

Very truly yours,

JOSEPH F. SPANIOL, JR., CLERK

By /s/ Edward L. Turner, Jr.

Assistant Clerk

33a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

DEC 30 1986

Cathy A. Catterson,

Clerk, U.S.Court of Appeals.

JOHN L. PIERCE,

Plaintiff-Appellant, No. 85-4076

v8. D.C. #V 81-91-BU-WDM

PATRICK W. WARNECKE, ORDER

Defendant-Appellee.

~~ we SY SS Se SS Cw Sw SO

BEFORE: SNEED, ALARCON and NOONAN, Circuit Judges

The document filed by appellant is treated

as a motion to enlarge time to file a petition

for rehearing and suggestion for rehearing en

banc and as a motion to file such a petition and

suggestion. The motion is granted.

34a

8276 Huffine Lane,

vw

.

Bozeman, Montana 5971

MEMORANDUM Januery 7, 1987.

To: Clerk of Court,

U. S. Court of Apprals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

(D.C.AV 81-91-BU-WDM)

This is to acknowledge receipt of the appeals

court ORDER filed under date of December 340,

1986. It is noted that the Plaintiff-Appellant's

surname is incorrectly stated as "PIERCE."

As I read the ORDER, the court has already granted

the motion to “enlarge the time .... etc.," and

is not awaiting any further motion from me.

Information is now requested as to the length of

enlargement indicated; (i.e., the deadline date

by which I should respond before the court is

scheduled to rehear the case).

It is my intention to submit a rehearing brief to

argue the facts of the case which are already con-

tained in my appeals brief dated December 13,

1985. Information is requested as to the length of

brief allowed, and the number of copies required.

ICE Plaintiff/Appellant

35a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM January 20, 1987.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. 0. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

(D.C .#CV 81-91-BU-WDM)

This is to advise that, to date, I have not

received a response to my MEMORANDUM to you

dated January 7, 1987 (copy attached).

/s/ JOHN L. PRICE

Plaintiff-Appellant

UNITED. STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAN 26 1987

Cathy A. Catterson,

Clerk, U.S.Court of Appeals.

JOHN L. PRICE

Plaintiff-Appellant, No. 85-4076

VSe D.C. HCV 81-91-BU-WDM

PATRICK W. WARNECKE, ORDER

Defendant-Appellee.

~~ Sw Sw Sw oH SS SY OS OY

Before: SNEED, ALARCON and NOONAN, Circuit Judges

The petition for rehearing shall be filed

within 14 days of entry of this order. Appellant

is referred to Fed. R. App. P. 40(a), (b).

378

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

San Francisco, California

Docket No. 85-4076

JOHN L. PRICE

Plaintiff-Appellant

-vs-

PATRICK W. WARNECKE,

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

(Cause No. CV 81-91-BU-WDM)

PETITION FOR REHEARING

(which includes suggestion for rehearing en banc)

BRIEF OF APPELLANT

PROCEEDING IN PROPRIA PERSONA

NOT REPRESENTED BY LEGAL COUNSEL

JOHN L. PRICE

8276 HUFFINE LANE

BOZEMAN, MONTANA 59715 /s/ JOHN L. PRICE

(406) 586-2713 Plaintiff-Appellant

Dated at Bozeman, Montana,

this 3rd_ day of February 1987

(cover page only)

38a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM March 28, 1987.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

Information is requested as to the current status

of the case in reference, relative to appellant's

PETITION FOR REHEARING dated February 3, 1987.

The purpose of this inquiry is for nothing more

(or nothing less) than the assurance that all is

in correct judicial order and that the case is in

progress through the appellate system.

/s/ JOHN L. PRICE

Plaintiff-Appellant-Petitioner

39a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM April 6, 1987.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

This is in reference to my MEMORANDUM to your

office dated March 28, 1987. Copy is attached

hereto as Enclosure 1. It was intended as a

tangible case document (for any future reference)

and should have been inserted in the case file

along with the clerk's reply thereto.

This is also in reference to the reply, which is

hereby acknowledged. Copy is attached hereto as

Enclosure 2. Note that the only response was the

one word "Pending" above the encircled words

"PETITION FOR REHEARING."

Since it was the original of my March 28th MEMO-

RANDUM that was returned (containing the hand-

written word "Pending"), appellant has no choice

but to believe that there was no copy made and

4Oa

that the case file dees not contain the March

28th MEMORANDUM or a reply.

The appellant directs that this MEMORANDUM (and

enclosures) be considered a material element of

the case, to be inserted in the case file — after

it has been appropriately stamped with the clerk's

official "RECEIVED" stamp.

NEW SUBJECT. This is advance notiee.

At such time in the future that the following docu-

ments are no longer needed by the court, it is

requested that all copies be returned to the

appellant.

(1) Appellant's appeal brief dated December

13, 1985.

(2) Appellant's EXCSRPT OF RECORD dated

November 13, 1985.

(3) Appellant's PETIPION FOR REHEARING dated

February 3, 1987.

Depending on the ultimate disposition of the case

at the appeals court level, and because of the

considerable expense involved in their preparation,

appellant desires to have these copies available

for use in subsequent actions.

/8/ JOHN L. PRICE

Encls. Plaintiff-Appellant-Petitioner

4la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APR 9 1987

Cathy A. Catterson,

Clerk, U.S.Court of Appeals.

JOHN L. PRICE,

Plaintiff-Appellant, No. 85-4076

vs. D.C. ACV 81-91-BU-WwDM

PATRICK W. WARNECKE, ORDER

Defendant-Appellee.

~~ Se es Se SS

Before: SNEED, ALARCON and NOONAN, Circuit Judges

The panel as constituted in the above case

has voted to deny the petition for rehearing and

to reject the suggestion for rehearing en banc.

The full court has been advised of the

suggestion for en banc rehearing, and no judge of

the court has requested a vote on the suggestion

for rehearing en banc. Fed. ©. App. Pe. 35(b).

The petition for rehearing is denied, and

the suggestion for a rehearing en banc is

rejected.

42a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

San Francisco, California

JOHN L. PRICE, Docket No. 85-4076

Plaintiff-Appellant, ) D.C. #CV 81-91-BU-WDM-MT

MOTION TO RECONSIDER AND

PATRICK W. WARNECKE,

RESCIND PREVIOUS JUDGMENT

)

)

)

)

-V5- ) .

)

)

)

Defendant-Appellee. )

)

This is in reference to the court ORDER filed under

date of April 9, 1987.

As the appellant could have easily anticipated,

the ORDER was obviously cast from the customary

more-of-the-same JUDICIAL MALFEASANCE, which enm-

braces such subtitles as lying, cheating, conniv-

ing, scheming, skulduggery, fraud, collusion, in-

quination, and instances of illegal proceedings.

Be that as it may (and it's common knowledge that

the case file is full of it), appellant will pro-

ceed to rationalize and justify this motion to

reconsider.

It is noted that the judgment was ordered by the

43a

same three judges who ruled against the appellant

in the MEMORANDUM* judgment filed under date of

May 2, 1986 (Sneed, Alarcon and Noonan).

The appellant contends that the ORDER of April

9th constitutes an illegal proceeding and must

be rescinded. Here's why:

POINT 1. The ORDER filed under date of December

30, 1986 (by Sneed, Alarcon and Noonan), by their

own initiative, treated and granted the motion

which entitled the appellant to submit his petit-

ion for rehearing. This action was taken in

extraordinary session to allow the court to con-

Sider a matter of exceptional importance.

POINT 2. These judges cannot now reverse them-

RR

selves without stringent and provable justifica-

tion. To do so would be tantamount to assigning

a group of weasels to guard the henhouse; and,

explicitly, a violation of the appellant's right

to due process (committed by the judiciary itself).

POINT 30 The appellant contends that the 2nd

paragraph of the April 9th ORDER was malignantly

Sha

conceived. It is believed that the judges acted

impetuously and vindictively from a high-muckety-

muck power tantrum because of appellant's MEMORAN-

DUM to the clerk-of-court dated April 6, 1987.

How else would the ORDER of April 9th have been so0

hastily developed?

And even if that paragraph supposedly contained a

semblance of truth, it would not circumvent the

possibility (or even probability) that some kind

of clandestine arrangements were made (by way of

a fraternal link-up) so that no judge of the

circuit would respond to the appellant's PETITION

FOR REHEARING,

Another perceptual possibility (and again a pro-

bability) is that one or more of the circuit

judges did request a vote, which was conveniently

misplaced or misfiled after having been returned

to the clerk's office.

And why would not the above assertions have tan-

gible merit? After all, it was because of the

appellant's perseverance for years that the three

"honorables" were put over-a-barrel enough to

45a

come up with their ORDER of December 30, 1986.

By realistic prognosis it is more than likely

that these shrewd geniuses would have devised some

future course of maneuvering to scuttle the case

in a concerted effort to protect the appellate

judiciary from humiliation and expose’.

POINT 4, Here's an excerpt from appellant's MEMO-

TIC RT NA

RANDUM to the clerk-of-court dated May 24, 1986

(paragraph 1 in its entirety):

"By this instrument, the Ninth Circuit judges

Sneed, Alarcon and Noonan, are hereby informed

that plaintiff does not consider the case to

be properly, judiciously, and legally pro-

cessed unless (and until) ALL the issues

contained in plaintiff's brief dated December

13, 1985 (pages 4 & 48) are fully addressed

(I repeat, FULLY addressed). The issues which

were conveniently and stealthily "swept under

the rug" by the officiating judges were issues

when the case was filed — and they remain

issues until they are processed without prejud-

ice and the legal-weevil cover-up technique."

46a

Their "honors" Sneed, Alarcon and Noonan are now

essentially telling the appellant that ALL Ninth

Circuit Judges, by their individual and collective

silence, are unequivocally in agreement that they

have neither the prerequisite intelligence, exper-

tise, knowledge-of-law, or intestinal fortitude to

allow appellant's PETITION FOR REHEARING to proceed.

POINT 5- It is noted that counsel for the aefend-~

ants (Attorney Nick Rotering) did not oppose or

object to the appellant's PETITION FOR REHEARING.

This will be a point in evidence to favor the

appellant in the event of future proceedings.

POINT 6. Actually, the appellant would be agree-

able to forgive all the judicial malfeasance

involved if the court would fairly and squarely

(without prejudice) adjudicate the ONE major

issue (which was singled out and shaped falsely —

probably so done by a legal intern dutifully

following instructions) so as to opprobriously

justify a judgment in favor of the prison defend-

ants, thus to shield and protect the Montana

Department of Institutions.

47a

At this point, the appellant is reminded of a

statement made by a prominent Montana lawyer-

friend, after he had read through the case file

up to (and including) the PETITION FOR REHEARING:

"Mr. Price, your work in preparing the briefs

in this case is highly commendable — many

lawyers in the country would be envious and

jealous. But, sad as it is, there's only one

reason why you're not going to win — and

that's because you're not represented by a

lawyer."

He went on to explain that even though some indiv-

idual citizens may be successful by representing

themselves in lower courts, the appellates are a

much different ball of wax, and they are extremely

reluctant to let lay persons win their cases under

any circumstances — and the court's power-

structure will go to even greater extremes to make

certain they do not win.

He stated that primarily it's a case of fraternal-

ized bar-association power to begin with — this

being the prime-moving hierarchy which governs the

appointment of judges. It is an historical rule-

|

|

48a

of-thumb that once a federal judge is seated, he

(or she) becomes "fraternally hooked" and is

totally and unfailingly committed to the protect-

ion of lawyers against some one (or any one) beat-

ing them out of their professional fee.

It is a well-known (and many-times published)

view that the American legal system is comprised

of a formidable and professionalized society of

myrmidons (a dense population of people who have

been rigidly schooled in the art of back-scratch-

ing and unscrupulous behavior). Each subordinate

dutifully supports the superior, regardless of

whether the principle is right or wrong, or at

some level between the two extremes. The superior

faithfully reciprocates by shielding and protect-

ing the subordinate. However, there is a new

counteracting art showing up rather persistently

— (whistle-blowing). The fallen Judge Claiborne

can attest to this with considerable regret.

Notwithstanding the above power-structure pictures

which the appellant knowingly faces into, he is

more than confident that the case file, per se,

49a

is in his favor — and he will staunchly stand on

the strength and merit of its content.

The appellant anticipates that, in the event he

petitions for a writ of certiorari (and even

though the odds are tremendous against one being

granted), there are innumerable U. S. Supreme

Court rulings and criteria that would support the

appellant's contention that the appeals court

judges who granted the motion entitling the appell-

ant to petition the court for rehearing may not

arbitrarily reverse themselves (as in the April

9th ORDER), because to do so would deprive the

appellant of his constitutional right to due pro-

cess as mandated by the ORDER of December 30,

1986, to proceed with his case before the full

court.

In the event that this motion for reconsideration

and rescission is denied by the panel to which it

is directed, the appellant automatically invokes

the provisious of Rule 27, FRAP, and it shall

forthwith become a motion submitted to another

single judge of the circuit as a request for

relief.

nett RAR”: POS yi, aa

50a

/s/ JOHN L. PRICE

Plaintiff-Appellant-Petitioner

Dated at Bozeman, Montana, this

18th day of April 1987.

CERTIFICATE OF SERVICE

This is to certify that this document has been

submitted by mail to the defendant via his

attorney, Nick A. Rotering, 1539 Eleventh Avenue,

Helena, Montana 59620, this 18th day of April,

1987.

/s/ JOHN L. PRICE

Plaintiff-Appellant-Petiticner

S5la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OFFICE OF THE CLERK

FILED

MAY 7 1987

Cathy A. Catterson,

Clerk, U.S.Court of Appeals.

OFFICE OF THE CLERK

U. S. DISTRICT COURT OF MONTANA

FEDERAL BUILDING

BUTTE, MT 59701 APR 20 1987

CA NO. DC NO, TITLE

85-4076 CV 81-91-BU JOHN L. PRICE vs.

PATRICK W. WARNECKE,

Dear Clerk: et al.

The following document(s) in the above listed

cause(s) is (are) being sent to you under cover

of this letter.

[xxx] Certified copy of the Decree of the Court.

The record on appeal will follow under separate

cover.

Please acknowledge receipt on the enclosed copy

of the letter.

Very truly yours, Br: fa/ duanja V. Rose

CATHY A. CATTERSON,

Clerk of Court Deputy Clerk

52a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM May 4, 1987.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit,

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

The following references are applicable:

A. Form letter from the clerk of the 9th cir-

cuit appeals sourt (by Deputy Clerk Juanja

V. Ross) to the OFFICE OF THE CLERK, U. S.

DISTRICT COURT OF MONTANA, FEDERAL BUILDING,

BUTTE, MT 59701, dated April 20, 1987.

Reference A transmits to the Butte court a "Certi-

fied copy of the Decree of the Court." Note that

the Decree of the Court (so transmitted) bears the

date of 05-02-86. This form letter also states

that "The record on appeal will follow under sep-

arate cover.'' — indicating that the case file is

no longer available at the 9th circuit court.

Consequently, reference A raises the following

questions:

ee

53a

1. Why does the appeals court clerk at this

time (after a time-lapse of one full year

send the decree of 05-02-86 to the district

court clerk?

2. Why does the appeals court clerk dispose of

the “record on appeal" by sending it to the

district court clerk, particularly in view

of the pending appellant's MOTION, reference

B? (Observe, here, that reference B pre-

dates reference A).

Reference B was dispatched as PRIORITY

MAIL from Bozeman on the morning of

Saturday, April 18th, and would have

been on hand in the 9th circuit clerk's

office at the beginning of office oper-

ations on Monday, April 20th, before

reference A was originated.

3. Why does not the appeals court clerk inform

the district court clerk that there has been

courte-sanctioned activity in the case since

the decree of 05-02-86, to-wit:

(a) Ninth Circuit Court ORDER filed under

date of December 30, 1986, entitling the

(bo)

(c)

(a)

(e)

(f)

S4a

appellant to file for rehearing,

including suggestion for rehearing

en banc.

Appellant's brief which comprises the

PETITION FOR REHEARING dated February

3, 1987.

Appellant's MEMORANDUM to the 9th

circuit court clerk (inquiring as to

the case status) dated March 28, 1987.

Appellant's MEMORANDUM to the 9th

circuit court clerk dated April 6,

1987 (commenting on the response to

document c, above).

Ninth Circuit Court ORDER filed under

date of April 9, 1987, denying appell-

ant's PETITION FOR REHEARING and reject-

ing the suggestion for rehearing en banc.

Appellant's response to document e,

above, in the form of his MOTION dated

April 18, 1987 (reference B).

55a

Observe, here, that the appellant's

MOTION of April 18th was submitted

well within the time-limitation after

the issuance of the court ORDER dated

April 18th.

Reference B contains a paragraph on page 4 which

expresses the possibility that the appellant will

petition the U. S. Supreme Court for a writ of

certiorari. The appellant now believes that the

appeals court clerk disposed of the record-on-

appeal at this time in anticipation that such a

writ will be sought. And in the judicial process

which follows, the 9th circuit court clerk san

enter a memorandum to the effect that the record

had been returned to district court. This will

Serve as a delaying tactic, and, of course, a

deliberate obstruction to the judicial process.

Consequently, the clerk of the district court (by

copy hereof) is requested to take special note of

the situation so that the record will be preserved

and immediately svailable when called for.

/s/ JOHN L. PRICE

Plaintiff-Appellant

Petitioner

Copy to:

Butte Court

Nick A. Rotering, attorney.

S6a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ILs:sD

MAY 7 1987

Cathy A. Catterson,

Cierk, U.S.Court of Appeals.

JOHN L. PRICE,

Plaintiff-Appellant, ) No. 85-4076

-VS- D.C. FV 51-91-BU-wWDM

PATRICK W. WARNECKE, ) ORDER

Defendant-Appellee.

Before: SNEzD, ALARCON and NOONAN, Circuit Judges

. . ; : %

Appellant's Motion to reconsider and rescind

i

>

t

previous judgment

Lee

57a

8276 Huffine Lane,

Bozeman, Montana 59715.

MEMORANDUM May 19, 1987.

To: Clerk of Court,

U. S. Court of Appeals for the Ninth Circuit

P. O. Box 547, San Francisco, California 94101.

Re: Docket No. 85-4076

This will serve to acknowledge receipt of the court

ORDER filed under date of May 7, 1987, which denies

the appellant's motion dated April 18, 1987. The

clerk is reminded that the final paragraph of that

MOTION is still formally pending and will remain so

until the adjudicating process is completed.

NEW AND RELATED SUBJECT

Comes now the appellant with a pertinent INQUIRY

addressed to the three honorables (Sneed, Alarcon

and Noonan), or to any other judge of the circuit

who has the prerequisite expertise in matters of

law to render an educated response.

Whether or not a respouse may be forthcoming

(educated or otherwise), the impetus of this in-

quiry will subsequently serve as a major (and

perhaps crucial) factor in the appellant's

58a

forthcoming petition to the U. S. Supreme Court

for a writ of certiorari.

To explain briefly, the appeals court (by its

oppilative silence) has consistently and surrep-

titiously refused to address the matters of

JUDICIAL MALFEASANCE which has been evident in

the case from its beginning to the present (i.e.,

the inquinate acts committed by the court system

itself during the case proceedings).

The question now is whether or not the appeals

court is, by law (or mandate), entitled to evade

the charges of judicial skulduggery and misconduct

when called upon to take judicial notice that such

activities have occurred. The appellant contends

that the appeals court, by its refusal to judic-

iously address the issue of JUDICIAL MALFEASANCE

in this case has essentially deprived the appell-

ant of his constitutional right to due process.

The appeals court is now requested to fully cite

the law or mandate (in exact terms) which pro-

vides it with the prerogative to evade any of the

issues of a case which it chooses to evade.

59a

Specifically, does the court have the prerogative

to evade the issue of JUDICIAL MALFEASANC: in the

case at hand?

The appellant, here, is seeking the law

governing the matter and not some kind

of gobbelty-goop which imagines that

there is a law. 4

Providing that such a citation is forthcoming,

the appellant will have no comment to make, one

way or another. The document will merely be

submitted as an enclosure to appellant's petition

for the writ of certiorari.— leaving the

evaluation of ite applicability to the supreme

court.

/s/ JOHN L. PRICE

Plaintiff-Appellent-Petitioner

Copy to:

Clerk of Court, U. S. District

Court, Butte, Montana.

Nick A. Rotering, Attorney for

Defendants, Helena, Montana,

60a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

July 9, 1987

John L. Price

5276 Huffine Lane

Bozeman, MT 59715

Re: In Re John L. Price

John L. Price v. Patrick W. Warnecke

Dear Mr. Price:

Pursuant to our telephone conversation today,

I am returning 39 copies of a document entitled

"Petition for Extraordinary Writ" received in this

office on July 6th for its failure to comply with

this Court's Rules of Procedure.

If it is your intention to file an extra-

ordinary writ, you must specify what kind, i.e.,

petition for writ of mandamus, petition for writ

of prohibition, etc. It must be styled In Re

John L. Price, under a tan cover with the ques-

tions presented after the cover page, followed

by the table of contents and table of authorities,

double spaced and include the district court's

opinion, if any. See Rules 27, 21 and 33.

6la

On the other hand, if you intend to file a

petition for a writ of certiorari the cover should

be white and it appears as though the caption

should be John L. Price v. Patrick W. Warnecke

to the United States Court of Appeals for the

Ninth Circuit in the aforementioned style and

format. Enclosed is a sample petition for a writ

of certiorari. See Rules 21 and 33.

Corrected copies are to be returned as

soon as possible in order for the case to be

docketed.

Very truly yours,

JOSEPH F. SPANIOL, JR., CLERK

By: /s/ Loretta S. Ruffin

Assistant Clerk

Enclosures.

cc: Nick A. Rotering, Esq.