Petition for Writ of Certiorari — Keels v. South Carolina

CASE NO os

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER, 1993 TERM

ARTHUR H. KEELS, Petitioner

VS.

STATE OF SOUTH CAROLINA; HON. WILLIAM T

HOWELL, JUDGE; CHIEF JUSTICE GEORGE T

GREGORY, JR.; ASSOC. JUSTICE DAVID W

HARWELL; ASSOC. JUSTICE A. LEE CHANDLER;

ASSOC. JUSTICE ERNEST A. FINNEY, JR.; ASSOC

JUSTICE JEAN TOAL; JOHN E. WAITES, ATTY .;

MICHAEL S. CHURCH, ATTY.; FUNDERBURK &

DERRICK, ATTYS.; JAMES W. ALFORD, ATTY

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, CASE NO. 3:91-1570-3-17 BD

Arthur H. Keels

Pro Se Petitioner

163 Pleasant View Drive

Blythewood, S. C. 29016

Phone (803) 786-1111

~

QUESTIONS PRESENTED FOR REVIEW

1. Are the allegations true?

2. Does the Court have jurisdiction over the

subject matter?

3. Does the Court have jurisdiction over the

persons?

4. Does Judge Howell have absolute immunity?

5. Does the Fourteenth Amendment to the

Constitution guarantee South Carolina citizens

the nght to a jury trial and due process of law?

6. Is this a frivilous suit?

OTHER COUNSEL OF RECORD

Edwin E.Evans, Esq.

Office of Atty. Gen. of S: C.

P.O. Box 11549

Columbia, S. C. 29211

Michael S. Church, Esq.

P. O. Box 1473

Columbia, S. C. 29202

James W. Alford, Esq.

P. O. Box 8448

Columbia, S. C. 29202

R. Lewis Johnson, Esq.

P.O. Box 8448

Columbia, S. C. 29202

TABLE OF CONTENTS

Questions Presented For Review

Other Counsel of Record

Table of Contents

Table of Authorities

Referemce of Opinions

Statement of Facts

Argument

Appendix

Pages

NM

ve

12-26

la-18a

TABLE OF AUTHORITIES

. See Conley v. Gibson, 355 U.S. 41, 48, 78

S. Ct. 99, 103, 2 L. Ed. 2d 81, 83 n. 1

(3d Cir. 1987).

. 365 U. S. 184, 5 LEd (2d) at 503, 81 S. Ct.

482 quoting United States v. Classic, 313

U.S. 299, 326 (1941)

. Dykes V. Hosemann, 743 F. 2d 1488 (1984)

. U.S. v. Washington, 705 F. 2d 489, 227 US.

App. D.C. 184.

REFERENCE OF OPINIONS

5-31-91]

8-19-9]

9-6-9]

3-19-93

5-11-93

8-2-93

8-12-93

9-13-93

12-7-93

Case filed in Federal District Court

Petition for Certiorari to Supreme Ct.

Sup. Ct. sends back to Ct. of Appeals

Case dismissed in Fed. Dist. Court

Appeal to U. S. Court of Appeals

Court of Appeals affirms Dismissal

Request for re-hearing - Ct. of App.

Re-hearing denied

Petition for Certiorari re-newed

STATEMENT OF FACTS

I filed a complaint against two law firms for

malpractice on December 9, 1988, and asked

for a jury tnal. I have now been fighting legal

battles for five years to have my case heard,

and it has not been heard yet. I had supoenaed

eighteen witnesses, and had certified copies of

deeds, plats, and other evidence that has never

been allowed in court. This is not due process

of law as descnbed in the Fourteenth Amend-

ment to the U. S. Constitution, and I never

would have believed that such a clear and

deliberate deprivation of human nights could

occur in any so-called democratic government

in the world.

The two law firms kept delaying the tnal, and

had their motions heard three times for dismisal

Or summary judgment, but because their negli-

gence was so glaring and undeniable, they were

turned down. However, each time the judges let

them, the losing parties, write the orders because

they were lawyers and | was not. So, each time

in the orders, they specified "Without Prejudice",

thus allowing them to keep on moving for summ-

ary judgment before another judge.

Finally, they got Judge William T. Howell, who

granted them summary judgments in direct

opposition to the facts, the law, and court rules.

on the grounds that even without the negligence,

I could not have won the case anyway. A look

at the facts will show that there is no way I could

have lost if it had not been for their negligence.

Judge Howell took a month and a half to decide

that there were no material facts in dispute, and

then, in appealing his summary judgments, there

was such a dispute about the material facts that

an order settling the record was necessary, at

which time, Judge Howell threw out my state-

ment of facts and let the attorneys write their

own versions of the facts. The court rules for

summary judgment are simple; the facts are not

to be decided by a judge in the pleading stage,

and even if he doesn't believe that I can prove

my allegations, when there are facts in dispute,

he is not supposed to grant summary judgment.

‘Not only were material facts in dispute, but I

offered positive,certified proof that showed

their summary judgments to be completely false,

and Judge Howell would not acknowledge it.

I asked for a jury tral from the very beginning,

and I never agreed to let the judge decide any

of the facts.

This case then went to the S. C. Supreme

Court, who affirmed the summary judgments

without even allowing me an oral hearing.

I then filed Petitions for Certiorari to the U. S.

Supreme Court on the summary judgment of

the malpractice case, and also on this present

- case against the judges and attorneys for depriv-

ing me of my civil rights. The U. S. Supreme

Court did not hear the malpractice case, most

probably because deprivation of Constitutional

rights had not been alleged in the complaint or

litigated on, and they reserved judgment on the

Constitutional rights issue with the comment

that it must first be exhausted in the lower Fed-

eral courts.

Now, the lower Federal Courts have dismissed

the case on grounds of Collateral Estoppel,

among other things, and claim that the Constitut-

ional rights issue has already been litigated. This

simply doesn't make sense. First, the Supreme

Court says it should be tried in the lower court,

and then the lower court puts it out, saying that

it has already been tried. Judge Joseph Anderson,

Jr. dismissed the case without a hearing, called it

a frivilout suit, and ordered that I should pay

sanctions.

What happened to the jury trial that I asked for?

Are the Federal Courts going to get by depriving

me of my Constitutional rights just like the state

courts did? There are a lot of unresolved facts

in this case, and I want a jury to see the evidence

and decide the facts.

Given the facts of this case, I am confident that

a fair jury tnal of the issues involved would go a long

way toward straightening out the inequities of our

judicial system.

I apologise that this statement of facts seems

argumentive, but for the sake of freedom and

justice, I feel that the true facts need to be

known.

The provable, certified, and indisputable facts

have not been acknowledged by the Courts, and

there has not been a trial at all, much less a jury

trial as requested. The Court has allowed the Res-

pondents to wnte their own set of facts which are

completely false, and that is why I am suing. Now,

the Federal Court seems to have accepted their version

of the facts as true, and made a ruling accordingly.

Civil Rights deprivation is a very serious matter,

and is in no way frivilous. Courts in the past have

given special attention that no such abuse should

occur:

"An action brought under this section (civil

JO

(lene ia

nghts)should not be dismissed if plaintiff

might obtain relief on facts suggested,

but inarticulately stated, by the complaint."

Webb v. Oswald, D.C.N_Y. 1971, 334 F.

Supp. 993.

What do I have to do to get a jury trial?

Surely the guarantees of the Constitution must

mean something.

[/

ARGUMENT

1. Are the allegations true?

The allegations have not been denied or answered

by the State defendants. The allegations are backed

up by positive, indisputable evidence upon which

no reasonable minds could differ. I have asked for

a jury trial, but the lower court has dismissed the

case without even looking at the evidence. Several

times in the Dismissal, it was stated that, "Unless he

can prove such and such, he doesn't have a case",

but they never gave me a chance to prove anything.

The courts have made it clear that:

"On a motion to dismiss for failure to state a

claim, all allegations in the pleadings must be

accepted as true and the plaintiff must be

‘4

OO _ __ __——

given the benefit of every favorable inference

that can be drawn from those allegations.” *

Therefore, since this case was dismissed on

"Failure to state a claim upon which relief can be

granted", all allegations must be accepted as true.

2. Does the Court have jurisdiction over the

subject matter?

Federal Court has jurisdiction when the case

involves Constitional issues, and Constitutional

issues are not only involved, that is what the whole

case 1s about.

"42 U.S. C. § 1983 creates a civil cause of

action, enforceable in federal courts, against

any person, acting under color of state

authority, who deprives another of any rights,

/3

privileges or immunities secured by the Con-

stitution or laws of the United States."

"Misuse of power, posessed by virtue of

state law and made possible only because the

wrongdoer is clothed with the authority of

state law, is action taken "under color of"

state law." *

The allegations in this case are that the judge,

acting in conspiracy with the attorneys, and under

color of state law, has deliberately deprived me

of the Constitutional nght to due process of law

in several particulars, and has also deliberately

deprived me of my Constitutional nght to a tnal

by ajury. In the circumstances of this case, with-

out the benefit of a trial as yet, these allegations

are required to be taken as true by the courts.

3. Does the court have jurisdiction over the

persons?

Federal Constitutional laws have been openly

and deliberately violated beyond the limits of

what has been set by Congress and the courts,

and the wrongdoers are answerable in federal

court.

As to the attorneys, the lower court has

proclaimed that since they are not government

officials, they can't be sued, but the law plainly

says different:

"Even if judge himself is held to be absolutely

immune from suit, private parties who

conspire with the judge act under color of

{Ss

state law for section 1983 purposes." °

Conspiracy has been alleged, and whether the

attorneys participated in conspiracy 1s a triable

issue of fact. Certainly, a judge who has not even

seen the evidence cannot make that decision

when a jury trial has been requested.

4. Does Judge Howell have absolute immunity?

It has been alleged that the judge acted in total

disregard to the laws relating to his authority,

court rules, and due process of law for the

specific intent to deprive me of my Constitu-

tional nghts, and that this was in clear absence

of his jurisdiction. It is not the judge's official

capacity to rule on facts when a jury trial has

been demanded. Whether the judge acted in

/6

his official capacity, and whether that action

was taken knowingly and deliberately is a triable

issue of fact for a jury to determine.

"Color of state law component of section

1983 may be satisfied by showing that

official act of defendant judge was product

of corrupt conspiracy involving judge and

other private parties." *

Judge who acts in absence of subject

matter jurisdiction may be held liable for

his judicial acts." 7

"Judge who acts in clear and complete

absence of personal jurisdiction loses his

judicial immunity." ?

The law is plain that a judge is not above the

/7

law, and he must follow court rules or he is to

be held liable. Intent and purpose are triable

issues of fact to be determined by a jury who

looks at the evidence, and the degree of the

corruption.

5. Does the Fourteenth Amendment to the

Constitution guarantee South Carolina citizens

the nght to a jury tral and due process of law?

The Attorney General of S. C. says that it

does not and the lower Federal Court has

agreed with him. Does this ~_ that Section

1983 is null and void, and the state judicial

officials are really free to violate court rules

and due process laws at will, and there is no

Federal recourse? | find this hard to believe,

but this is exactly what is happening in S. C.

I believe that the U. S. Supreme Court has

a duty and an obligation to rectify this terrible

injustice as soon as possible, and I truly do

not believe that there could be a more blatant

and deliberate violation of the fundamental

civil nghts than this case.

6. Is this a frvilous suit?

The lower Federal Court says that this is a

frivilous suit, and that I must pay attorneys

fees for the defendants. Well, that's just like

the Comunist government killing the Chinese

people who demonstrated for their human

rights. I was clearly and deliberately denied

my rights supposedly guaranteed by the

/9

Constitution, and because J complained

about it, | am threatened with financial ruin.

The reason | am going Pro Se is because

I couldn't afford to pay a lawyer in the first

place. I find it hard to believe that this is

happening in this United States that I have

always been so proud of.

I certainly don't consider this to be a

frivilous case. I consider it to be one of

the most important cases in this country.

I also believe that former president Ronald

Reagin and Dan Quayle would consider it

important too, because they had Judicial

reform high on their lists of needs.

SUMMARY

20

I am a Pro Se Apellant. who has not even

consulted with an attorney about this case,

and I am up against four law firms, six judges,

and the Attorney General for the state of South

Carolina. I respectfully ask this Honorable

Court to hold my complaint to a less stringent

standard than those drafted by attorneys. |

feel that I have done a very inadequate job of

presenting this case properly, and have thereby

let down the mainstream American people

_ who are suffering so much from the inequities

of the judicial system as it now stands. I have

determined that if 1 receive any kind of monetary

relief, that I will donate every penny of it to

charity, because | don't want it to appear that

Zi

I am suing just to get money. The reason I

I am suing 1s because the Judicial System in

South Carolina is sick and it is in dire need of

a cure. No one else seems to think that it ts any

use to try to help, but I have faith in this

Supreme Court, and in the principles of justice

upon which this nation is founded.

I am not asking this Honorable Court to

render a decision in my favor. All I am asking

for is to have a trial by a jury of my peers, and

let them look at the evidence and decide the

facts. 1 beg and plead, please send this case

back to the lower court for a jury to make the

decisions.

I am absolutely sure that if | am given a tnal by

a jury of my peers, and the true facts are decided

by the jury, it will be clearly shown that the attor-

neys have conspired with judges to deliberately

and totally disobey Court Rules,Due Process of

Law, and the most basic of human nghts as

guaranteed by the United States Constitution.

It is sincerely hoped that this Honorable Court

will re-affirm its former positicn that was stated

by the Honorable Justice Harlan, as he declared

in the case of Plessy v. Ferguson, 163 U.S. 537,

539 (1896), when he stated:

"Our Constitution is color-blind, and neither

knows nor tolerates classes among citizens. In

respect of civil nghts, all citizens are equal before

the law. The humblest is the peer of the most

powerful. The law regards man as man, and

takes no account of his surroundings or of his

color when his civil nghts as guaranteed by the

supreme law of the land are involved."

All I am asking for is a chance to prove my

case before a jury of my peers.

In closing, it is interesting to note that the Respon-

dents have not denied or challenged the truthfulness

of the underlying cause of this action; that the

Summary Judgments of Judge William T. Howell

were based on a deliberate falsehood. It was delib-

erate because clear and indiputable proof in opposi-

tion to the Summaries was offered at the hearing and

he would not accept It.

So, instead of denying the charges, they claim

that he had a perfect right to usurp authority and

rule on facts in dispute when a jury trial had been

demanded.

This is simply not right morally, and it is not right

legally. Judge Howell is not above the law. "Verdicts

contrary to law and instructions of court, are law-

less, denial of due process and constitute exercise

of erroneously seized power." * Whether the

attomeys conspired with Judge Howell in this

alleged illegal action, and whether he knowingly

and deliberately did this, is a question for a jury

to determine, and should not be dismissed by

another fellow-judge.

In the interest of justice, and on behalf of all of

the citizens of this United States, please let these

25

facts be decided by a jury of my peers.

December 7, 1993

Blythewood, S. C. Arthur H. Keels

Pro Se Appellant

163 Pleasant View Dr.

Blythewood, S. C. 29016

Phone (803) 786-1111

26

(Entered 3-19-93)

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF SOUTH

CAROLINA, COLUMBIA DIVISION

CA No. 3:91-1570-17BD

ORDER

Arthur H. Keels, Plaintiff

VS.

State of S. C., Hon. William T. Howell, Judge;

Chief Justice George T. Gregory, Jr.; Assoc. Jus.

David W. Harwell; Assoc. Jus. A. Lee Chandler:

Assoc. Jus. Emest A. Finney, Jr.; Assoc. Jus. Jean

Toal; John E. Waites, Atty.;Michael §. Church,

Atty., Funderburk & Derrick, Attys.; and James W.

Alford, Atty.., Defendants.

This is a discrimination case filed by the plaintiff

pro se pursuant to 42 U.S.C. € 1983. The Defen-

dants, State of South Carolina, William T. Howell,

/2

and the five named Justices of the South Carolina

Supreme Court have filed a Motion to Dismiss

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

The remaining Defendants have filed Answers

alleging , inter alia, that Plaintiff's action should be

dismissed. The plaintiff also filed a Motion for

Default and for the relief demanded in the complaint.

This matter is being handled by the court without

reference to a Magistrate Judge pursuant to Local

Rule 19.02.

Background

This Federal Court case arises out of a malpractice

action brought against the Defendants,John E.

Waites and the law firm of Funderburk & Derrick,

in the Richland County Court of Common Pleas.

Mr. Waites had represented the plaintiff in a State

equity court case, and the law firm of Funderburk

& Derrick represented the plaintiff in the appeal

of that case. Mr. Waites was represented in the

malpractice action by the Defendant Michael S.

Church, and the law firm of Funderburk & Derrick

was represented by the Defendant James W. Alford.

Defendant William T. Howell, a South Carolina

Circuit Judge, granted summary judgment for the

Defendants in that malpractice case (Civil Action

No. 88-CP-40-6013). The Plaintiff appealed Judge

Howell's Order to the South Carolina Supreme Court.

On April I, 1991, the Supreme Court unanimously

affirmed Judge Howell's Order. Keels v. Waites,

et al, Memorandum Opinion No. 91-MO-93. Plain-

tiffs request for a re-hearing was denied by the

Supreme Court on May 22, 1991.

The Plaintiff hereafter filed this action in United

States District Court pursuant to 42 U.S.C. § 1983,

alleging a denial of his due process rights and the

right to a jury trial under the United States Constitu-

tion. The Defendants in this action consist of the

attorneys that represented the Plaintiff in his original

action (Mr. Waites and Funderburk & Derrick), the

attorneys that represented Waites and Funderburk

& Derrick in the malpractice case (Mr. Church and

Mr. Alford) the State Circuit Judge who granted ;

summary judgment for the Defendants in Plaintiff's

malpractice action, the Members of the South

Carolina Supreme Court who denied the appeal

of the State Circuit Judge's Order, and the State

of South Carolina itself.

As noted, the Defendants have moved for dis-

missal of this case. As the Petitioner is proceeding

pro se, Judge Gambrell filed an order on July 2, 1991

advising the Plaintiff of his nght to respond to the

Motions to Dismiss, and carefully pointing out to

the Plaintiff the law in this area and the provisions

of the Federal Rules of Civil Procedure. The Plain-

tiff filed a Return to the Motion to Dismiss on July

|, 1991 and a response to Judge Gambrell's Order

on July 5, 199]. As allowed in Judge Gambrell's

Order, the Defendants, James W. Alford and

Funderburk & Derrick, filed a Memorandum of

Law on August 5, 1991. Also, the Defendants to

whom Plaintiff's Motion for Judgment by Default

was directed filed a Memorandum in Opposition

on July 18, 1991.

Discussion

This Court required to construe pro se complaints

liberally. Such pro se complaints are held to a less

stringent standard than those drafted by attorneys.

Gordon v. Leeke, 574 F.2d 1147, I151 (4th Cir.), cert,

denied, 439 U.S. 970 (1978) A Federal District Court

is charged with liberally construing a complaint filed

by a pro se litigant to allow the develop[ment of a

potentially meritorious case. see Cruz v. Beto, 405

U. S. 319 (1972). However, even after applying this

less stringent standard, Plaintiffs 1983 Complaint

is subject to dismissal.

(a) Plaintiffs Motion for Judgment by Default.

Plaintiff has moved that the Defendants, State of

South Carolina, William T. Howell, and the Justices

of the South Carolina Supreme Court, should be

declared in default and the releif demanded in the

Complaint awarded because these Defendants”...

have not filed an Answer with the Clerk of the U.S/

District Court ...." However, it is clear from the

file in this case that these Defendants timely served

5a

and filed a Motion to Dismiss pursuant to Rule 12(b).

Fed. R. Civ.P. Plaintiff filed his complaint on May

31, 1991. The returns of service in the file show that

the Defendant William T. Howell was served on

June 7, 1991, the State of South Carolina was

served on June 5, 1991, and the members of the

Supreme Copurt of South Carol9ina were serced

on June 5, 1991. Pursuant to Rule 12(a). Fed.R.Civ.P.,

a Defendant has twenty (20) days after the service

of the summons and complaint to serve an answer.

However, service of a Rule 12(b) motion extends

the time for filing an answer until such time as the

Court denies the motion or postpones its disposi-

tion until the tnal on the merits. Rule 12(a)(1)

Defendants timely filed their Rule 12(b) motion on

June 20, 1991, and are not in default. Therefore,

Plaintiffs Motion for Judgment by Default must

be denied.

(b) Defendant State of South Carolina. The

\Defendant State of South Carolina asserts

that claims against it under 42 U.S.C. 1983 are

barred by the El;eventh Amendment. The Eleventh

Amendment to the United States Constitution

provides as follows:

The judicial power of the United States

shall not be construed to extend to any

suit in law or equity, commenced or

prosecuted against one of the United

States by citizens of another state, or by

citizens or subjects of any foreign state.

In addition to barring suit against a state by

citizens of another state or a foreign country, the

Eleventh Amendment also bars suits against a

state by citizens of that state. Pennhurst State

School and Hospital v. Halderman, 465 U.S. 89

(1984). Thereffore, in the absence of a consent

to suit or waiver of immunity, a state is shielded

from suit in Federal Copurt by virtue of the

Eleventh Amendment. Id. Although Congress

may expressly abrogate a State's Eleventh

Amendment immunity pursuant to its enforce-

ment power under the Fourteenth Amendment,

7 2

the United States Supreme Court has consistently

held that neither a state nor a state official in his

pffocial capacity is a "person" for purposes of a

1983 damages action. Will v. Michigan Department

of State Police, 109 S. Ct. 2304 (1989). Plaintiff's

reliance on Monell v. Dept. of Social Services, 436

U. S./ 658 (1978), is misplaced. The State of South

Carolina is not a "local government " under Monell.

Therefore, since Congress in enacting 1983 did not

abrogate the State's Eleventh Amendment immunity,

a claim under this section against the State of South

Carolina is barred. Additionally, to the extent that

Plaintiff's action copuld be construed as a suit

against the Defendant judges in their official

capacities, such a claim is also barred by the

Eleventh Amendment. Pennhurst State School and

Hospital v. Halderman, supra, at 98-100.

While neither a State nor a State official in his

official capacity is a "person" for purposes of a

1983 damages action, a State official may be

sued in their official capacity under 1983 for

injunctive relief. Will v. Michigan Department

of State Pol;ice, 491 U.S. 58, 71, n.10 (1989).

However, injunctive relief is not available here.

A FedeSral District Court does not have

jurisdiction to reverse or modity a final order

of a State Court. Czura V. Supreme Court

of South Carolina, 632 F. Supp. 267 (D.S.C.1986)

aff'd 813 F.2d 644 (4th Cir. 1987).

(c) The Defendants William T. Howell and the

Individual Justices of the South Carolina Supreme

Court. With regard to the individual Judge and

Justices named as Defendants in this case, Plain-

tiff's only claim against them, as stated in his

\Complaint, is that summary judgment was granted

for the Defendants in his malpractice action (by

Judge Howell), that his {the Plaintiffs} Motion

for Summary Judgment was not granted (by

Judge Howell),and that the Plaintiff's appeal of

Judge Howell's summary judgment order was

denied (by the individually named Chief Justice

and Associate Justices of the South Carolina

9a

Supreme Court.

In essence, the Plaintiff is suing these judicial

officials because he did not like the way they ruled

in his malpractice case. Such a suit against these

Defendants is clearly barred and is fnvolous. As

Judge Gambrell noted in his previous order., al-

though Plaintiff may not agree with this rule, Judicial

officers have absolute immunity for any actions

performed in their official capacity. Plaintiff has

alleged that these judicial officials’ actions were

improper. However, unless Plaintiff can show that

their actions occurred "in clear absence of all

jurisdiction," these Defendants are absolutely

immune from liability, even if their actions were

taken in error, maliciously or in excess of their

authority. Stump v. Sparkman, 435 U.S. 349, 356

(1978); see also Chu v. Gnffith, 771 F. 2d 79

(4th Cir. 1985; cert denied. 475 U.S. 1023 (1985);

King v. Myers, 973 F 2d 354 (4th Cir. 1992). A

review of the record reveals that the actions taken

by these judicial Defendants in Plaintiff's earlier

JO

cases were performed in their official capacities,

and they are therefore entitled to dismissal of the

claims against them on the basis of their absolute

immunity from suit. Stump v. Sparkman, supra.

(d) The Defendants John E. Waites, Michael .

Church, Funderburk & Derrick, and James W.

Alford. Plaintiff's claim against the Defendants

John E. Waites and Funderburk & Derrick is that

these Defendants committed legal malpractice, for

which they were sued in state court. Plaintiff's

claim against these Defendants has been adjudi-

cated pursuant to the orders issued by Judge

Howell and the South Carolina Supreme Court.

Plaintiff may not now re-litigate this malpractice

action in Federal Court.Czura v. Supreme Court

of South Carolina , supra.

Plaintiff's claim against the Defendants Church

and Alford is essentially that they represented

Waites and the Funderburk firm in the mal[ractice

action. Plaintiff asserts in his complaint that all four

of these Defendants’ actions in his {the Plaintiff's}

J// a

malpractice action constituted" ...an unlawful, willful

and severe violation of the Plaintiff's constitutional

right to a jury tral of his peers." However, there is no

Federal constitutional nght to a jury tral in a state

court civil action. Colgrove v. Battin, 413 U.S. 149,

170, n. 4 (1973) Further, State action is required

to bring suit under 1983. None of the named

Defendants (Waites, Church, Funderburk & Derrick,

Alford) are government officials or were acting

under color of state law, which is a jurisdictional

prerequisite for any action brought under 42 U.S.C.

$1983. See Deas v. Potts, 547 F.2d 800 (4th Cir.

1976); Hall v. Quillen 631 F.2d 1154, 1155 (4th Cir.

1980), cert, denied 454 U.S. 1141 (1982). Martinez

v. California, 444 U.S. 277 (1980).

(e). Finally, following the Supreme Court's

denial of his appeal, Plaintiff could have sought

review in the United States Supreme Court. 28

U.S.C. 1257; see also District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482

(1983). However, instead of seeking review by the

/

U,S. Supreme Court of the State Supreme Court's

denial of his appeal, Plaintiff filed this action in the

United State District Court. A United States District

Court has no authority to review final judgments of a

state supreme court. Id; see also, Czusa v. Supreme

Court of Southy Carolina, supra.

Conclusion

For the reasons cited herein, the Plaintiff's Motion for

Judgment by Default is denied; Defendants’ motions is

granted; and the case is dismissed pursuant to Ru;e

12 (b) (1), (2) and (6).

IT IS SO ORDERED.

Joseph F. Anderson, Jr.

United States District Judge

March 19, 1993

Columbia, South Carolina

/3 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASE NO. 93-1475

Arthur H. Keels, Plaintiff-Appellant

Vv.

State of South Carolina; William T. Howell,Honorble;

George T. Gregory, Chief Justice; David W. Harwell,

Associate Justice; A. Lee Cisandler, Associate Justice;

Ermest A. Finney, Jr. Associate Justice; Jean Toal,

Associate Justice; John E. Waites; Michael S. Church;

Funderburk & Derrick, Attorneys; James W. Alford,

Attorney,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia,

Joseph \F. Anderson, Jr., District Judge.

(CA-91-1570-3-17-B)

Submitted: July 16, 1993

Decided: August 2, 1993

Before NIEMEYER, HAMILTON, and WILLIAMS.

Circuit Judges.

COUNSEL

Arthur H. Keels, Appellant Pro Se. Edwin Eugene

Evans, Senior Assistant Attorney General, Columbia,

South Carolina; Michael Stephen Church, TURNER,

PADGET, GRAHAM & LANEY, P.A., Columbia,

South Carolina; James Warner Alford, R. Lewis

Johnson,BARNES, ALFORD, STORK & JOHNSON

, Columbia,South Carolina for Appellees.

Unpublished opinions are not binding precedent in

this circuit. See I.0.P. 36.5 and 36.6..

OPINION

PER CURIAM;

Arthur H. Keels appeals from the district court's

/52

order denying relief under 42 U.S.C. 1983 (1988)

Our review of the record and the district court's

opinion discloses that this appeal is without mertt.

Accordingly, we affirm on the reasoning of the district

court, Keels v. South Carolina, No. CA-91-1570-3-17-B

(D.S. C. Mar. 19, 1993). We dispense with oral argu-

ment because the facts and legal contentions are

adequately presented in the materials before the

Court and argument would not aid the decisional

process.

AFFIRMED

/O@ &

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

September 13, 1993

No. 93-1475

CA-91-1570-3-17-BD

ARTHUR H. KEELS

Plaintiff - Appellant

V.

STATE OF SOUTH CAROLINA; WILLIAM T. HOWELL,

HONORABLE; GEORGE T. GREGORY, Chief Justice; DAVID

W. HARWELL, Associate Justice; A. LEE CHANDLER, Associate

Justice; ERNEST A. FINNEY, JR., Associate Justice; JEAN

TOAL, Associate Justice; JOHN E. WAITES; MICHAEL S.

CHURCH, FUNDERBURK & DERRICK, Attorneys; JAMES

W. ALFORD, Attorney

Defendants - Appellees

On Petition for Rehearing with Suggestion for Rehearing in Banc

The appellant's petition for rehearing and suggestion for rehear-

ing in banc were submitted to this court. As no member of this

\Court or the panel requested a poll on the suggestion for rehearing

in banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and suggestion

for rehearing in banc are denied.

For the Court,

Yours truly,,

BERT M. MONTAGUE

Clerk

/s/ Z. Yevone Jeffreys

By:

Deputy Clerk

8a