Appendix — Dickerson v. Bates

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APPENDIX-A

UNITED STATES COURT OF APPEALS

TENTHCIRCUIT ~—= foyer a; *

__ United States Court of Appeal

Tenth Circuit

DURAND DICKERSON JUL 72004

Plaintiff-Appellant, : :

PATRICK FISHER

v. No. 03-3341 .

(D. Ct. No. 03-CV-2337-JWL)

G. RONALD BATES JR.; (D. Kan.)

CHARLENE BROWN; PAUL

LEAVITT; DEBORAH LEAVITT;

CROW, CLOTHIER & BATES

a Kansas Corporation,

Defendants-Appellees.

ORDER AND JUDGMENT

Before TACHA, Chief Circuit Judge, BRISCO, and

HARTZ, Circuit Judges.

After examining the briefs and the appellate record, this

three-judge panel has determined unanimously that oral argu-

ment would not be of material assistance in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10" Cir. R. 34.1

(G). The case is therefore ordered submitted without oral

argument.

Plaintiff-Appellant Durand Dickerson appeals from the

District Court’s order dismissing his pro se complaint for

lack of subject matter jurisdiction. We exercise jurisdiction

pursuant to 28 U.S.C. 1291 and AFFIRM.

I. BACKGROUND

Mr. Dickerson’s complaint alleges that the defendants

2

violated the Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. 1961-1968, and defrauded him in

obtaining and collecting various judgments entered against

him in a landlord-tenant dispute in Kansas state courts. After

a thorough analysis of Mr. Dickerson’s claims, the District

Court granted the defendants’ motion to dismiss on the

ground that the Rooker-Feldman doctrine barred the federal

court from exercising subject matter jurisdiction.

II. DISCUSSION

“We review the district court’s dismissal for lack of

subject-matter jurisdiction de novo.” Kenmen Eng’g v. City of

Union, 314 F.3d 468, 473 (10" Cir. 2002) (citing Johnson v.

Rodrigues, 226 F3d 1103, 1107 (10" Cir. 2000).

Under the Rooker-Feldman doctrine, lower federal courts

lack jurisdiction to hear claims that are either (1) actually

decided by a state court, Rooker v. Fidelity Trust Co., 263

U.S. 413, 415-16 (1923), or (2) “inextricably intertwined”

with prior state court judgment, District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983). Flow-

ing from the general rule that only the United States Supreme

Court has federal appellate authority to review state court

decisions, Merrill Lynch Bus. Fin. Servs., Inc. Nudell, 363

F3d 1072; 1074-75) (10" Cir. 2004) (citing 28 U.S.C.

1257(a)), the Rooker-Feldman doctrine prevents a lower

federal court form conducting “‘what in substance would be

appellate review of [a] state judgment ..... based on a losing

party’s claim that the state judgment itself violates the loser’s

federal rights,”” Kenmem, 314 F3d at 473 (quoting Johnson v.

De. Grandy, 512 U.S. 997, 1005-06 (1994).

Although a state court has not actually decided Mr.

Dickerson’s federal claims, the District Court applied the

Rooker-Feldman doctrine here after finding his claims inex-

tricably intertwined with prior state court judgments. In

3

making this determination, the District Court followed our

well-established approach by asking “* whether the state-court

judgment caused, actually and proximately, the injury for

which [Mr. Dickerson] seeks redress.’” Pittsburg County

Rural Water Dist. No 7 v. City of McAlester,358 F3d 694,

707 (10" Cir. 2004) (quoting Kenmen, 314 F3d at 476). Mr.

Dickerson clearly seeks redress for losses resulting from the

State judgments against him. For example, the seeks to be

reimbursed for losses resulting form the garnishment of

funds, posting of a bond, and payment of damage, all of

which resulted from the state court decisions. Because the al-

leged injuries flow “actually and proximately” from the state

court judgments, Mr. Dickerson’s claims are inextricably

intertwined with those judgments and the District Court lacks

jurisdiction. Jd.

In an attempt to avoid the Rooker-Feldman doctrine, Mr.

Dickerson argues that the defendants, rather than the state

court judgments, caused his injuries because the defendants

defrauded him and engaged in criminal acts in obtaining and

enforcing the judgments.’ Although he asks us to believe

otherwise, he is, in fact, asking a federal district court to undo

state-court judgments and restore him to the position he was

in before these judgments. See Kenmen, 314 F3d. at 477

(holding that the Rooker-Feldman doctrine barred a suit by

plaintiffs seeking monetary relief that would restore them to

the position they were in before the state-court judgments).

We, therefore, agree with the District Court that his “attempt

to reframe the issues is unavailing.”

' Mr. Dickerson also argues that the Rooker-Feldman doctrine

should not apply here because his complaint names defendants who were

not parties in the state court proceedings. We have indeed said that the

doctrine does not apply against non-parties. See Johnson, 226 F3d at

1109-10. Here, however, Rooker-Feldman is not being applied against

the non-party defendants but against Mr. Dickerson, who was clearly a

party to the state court proceedings. This argument, therefore, fails.

4

We also reject Mr. Dickerson’s argument that the Rooker-

Feldman doctrine does not apply because he is challenging

post-judgment collection procedures rather that the actual

judgments. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1

(1987). But as this court has already noted, “under Pennzoil,

a party may challenge state procedures for enforcement of a

judgment, where consideration of the underlying ‘state-court

decision is not required.” Kenmen, 314 F3d at 476. Here,

such consideration is a necessity of the suit filed by Mr.

Dickerson. In order to grant his requested relief, the District

Court would have to consider the state court judgments and

find them deficient, an effort that would clearly violate the

Rooker-Feldman doctrine. See id. at 476 n.6 (noting that a

district court would “upset” a state court judgment if it grant

a damage award for “losses incurred as a result of complying

with the state-court judgment”).’

Ill. CONCLUSION

For there reasons, we AFFIRM the District Court’s

dismissal of the case on the ground that it lacks subject

matter jurisdiction over Mr. Dickerson’s claims. Finally, the

Defendants filed an objection to Mr. Dickerson’s docketing

statement implying that his appeal was frivolous and

apparently requesting costs and other relief. Because the

Defendants failed to file a proper motion under Rule 38 of

the Federal Rules of Appellate Procedure, we DENY their

request for costs and other relief.

ENTERED FOR THE COURT

Deanell Reece Tacha, Chief Circuit Judge

Because the court lacks jurisdiction over Mr. Dickerson’s

claims, we do not address Defendant Charlene Brown’s alternative basis

for dismissal or Mr. Dickerson’s claim that one of the defense attorneys

should be disqualified.

APPENDIX-B

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

Durand Dickerson

Plaintiff,

v. Case No. 03-2337-JWL

G. Ronald Bates, Jr.; Charlene Brown;

Paul Leavitt; Deborah Leavitt; Crow,

Clothier & Bates, a Kansas Corporation,

Defendants.

MEMORANDUM & ORDER

Plaintiff, appearing pro se, filed a multi-count complaint

against defendants alleging that defendants violated the Rack-

eteer Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. 1961 et seq., and committed fraud. This matter is

presently before the court on defendants G. Ronald Bates,

Paul Leavitt, Deborah Leavitt, and Crow, Clothier & Bates

motion to dismiss (doc. #12) and defendant Charlene Browns

motion to dismiss (doc. #16). As set forth below, the motions

to dismiss are granted and plaintiff's complaint is dismissed

in its entirety.

Factual Background

This case arises out of a landlord-tenant dispute between

plaintiff Durand Dickerson and defendants Paul and Deborah

Leavitt. In 1996, the Leavitts retained a lawyer, defendant G.

Ronald Bates of the law firm Crow, Clothier & Bates, and

filed suit against Mr. Dickerson seeking to have him evicted

from the commercial property owned by the Leavitts. The

Leavitts ultimately prevailed against Mr. Dickerson in state

court. Mr. Dickerson appealed the district court’s judgment

2

to the Kansas Court of Appeals and the Kansas Court of

Appeals thereafter dismissed Mr. Dickerson’s appeal.

After Mr. Dickerson failed to filed an appropriate superse-

deas bond and refused to vacate the leased premises, the

Leavitt filed additional actions against him for recovery of

damages due to his continuing default under the terms of the

parties written lease agreement. These actions were apparent-

ly successful. The Leavitts also sought and obtained post

judgment relief in the form of an execution and garnishment

due to Mr. Dickerson’s refusal to vacate the premises and

otherwise satisfy the Leavitts’ judgment. Mr. Dickerson

appealed each of the judgments against him to the Kansas

Court of Appeals and that court dismissed each of the appeals

and granted, in part, the Leavitts’ request for attorney fees.

In 1999, Mr. Dickerson filed a state court action against

the Leavitts alleging that they had defrauded him. The

Leavitts filed a motion to dismiss that action based on the

doctrine of collateral estoppel and the judge granted the

motion. Mr. Dickerson appealed that decision and the

Kansas Court of Appeals affirmed the dismissal of the case.

In the meantime, Mr. Dickerson filed another action against

the Leavitts, this time in federal district court, alleging that

the Leavitts and Mr. Bates, among others, had violated his

constitutional rights. Judge O’Connor of this court dismissed

Mr. Dickerson’s complaint and the Tenth Circuit affirmed

that decision.

Now, Mr. Dickerson has filed a RICO action against the

Leavitts, Mr. Bates and his law firm, and Charlene Brown,

the former clerk of the Leavenworth County District Court.

In his complaint, he asserts that the defendants engaged ina

pattern of racketeering activity from August 1996 through

October 1999-activity which appears to consist largely of de-

fendant’s efforts to collect the judgments entered in favor of

the Leavitts (including garnishing Mr. Dickerson’s funds); to

obtain an award of attorney fees from the Kansas Court of

ta tt gee

WEY Coeabhs cols

3

Appeals; and to request that Mr. Dickerson post the requisite

supersedeas bond. Mr. Dickerson also alleges that defendants

made various false statements in the briefs they submitted to

the Kansas Court of Appeals and that defendants fraudulently

obtained the non-wage garnishment order that the state court

issued.

Discussion

Defendants move the court to dismiss plaintiff's complaint

on the grounds that the Rooker-Feldman doctrine bars the court

from exercising subject matter jurisdiction over plaintiff's

claims. See District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co. , 263

U.S. 413, 414-16 (1923). It is beyond dispute that “Rooker-

Feldman is a jurisdictional prohibition.” See Pittsburg County

Rural Water Dist. No. 7 v. City of McAllester, 2003 WL

22376980, F.3d __,__, (10 Cir. October 17, 2003).'

Under 28 U.S.C. 1257, “[f]inal judgments or decrees

rendered by the highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court by writ

of certiorari.” Pittsburg County, _F.3dat___. The

negative inference from this statutory authorization is that

‘Because the court determines that it does not have jurisdiction over

plaintiff's claims, the court declines to address defendants’ alternative bases for

dismissal, except to note that defendant Charlene Brown, as she suggests, would

be entitled to judicial immunity from plaintiff's claims and she would be entitled

to dismissal of plaintiff's complaint on this basis. Each of the allegations in

plaintiff s first amended complaint concerning Ms. Brown focus on activities that

Ms. Brown engaged in as the district court clerk in Leavenworth County, Kansas,

including mailing copies of various orders to Mr. Dickerson. As such, she in

immune from suit. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10® Cir.

2000)(absolute judicial immunity extends to persons other than a judge where

performance of judicial acts or activity as an official aid of the judge is involved

and where the non-judicial officer’s duties had an integral relationship with the

judicial process); see also Wiggins v. New Mexico State Supreme Court Clerk,

664 F.2d 812, 815 (10* Cir. 1981)state court clerk absolutely immune from suit

because “no court can discharge its judicial duties without the aid of clerks,

servants and agents”).

4

“federal review of state court judgments can be obtained only

in the United States Supreme Court.” /d. (quoting Kenmen,

314 F.3d at 473). Thus, Rooker-Feldman precludes “a party

losing in state court ..... from seeking what in substance

would be appellate review of [a] state judgment in a United

States district court, based on the losing party’s claim that the

state judgment itself violates the loser’s federal rights.” /d.

(quoting Kenman, 314 F.3d at 473).

The Supreme Court has applied the Rooker-Feldman juris-

dictional bar to two categories of claims-claims that are actual-

ly decided by a state court, Rooker v. Fidelity trust Co., 263

U.S. 413, 415-16 (1923), and claims that are ‘inextricably in-

tertwined” with prior state court judgment, see Dist. Of

Columbia Ct. of App. V. Feldman, 460 U.S. 462, 482 n. 16

(1983). Jd. It is readily apparent that plaintiff's claims for

relief based on violations of RICO were not actually decided

by the Kansas courts. Thus, the court must resolve whether

plaintiff's federal court claims are “inextricably intertwined”

with the Kansas state court’s judgment. See id. In applying

the “inextricably intertwined” standard, the court asks

“whether the injury alleged by the federal plaintiff resulted

from the state court judgment itself or is distinct from that

judgment.” Jd. (quoting Kenman, 314 F.3d at 476). Stated

another way, the court asks whether “the state-court judgment

caused, actually and proximately, the injury for which the

federal-court plaintiff seeks redress.” Jd. (quoting Kenman,

314 F.3d at 476. If it did, Rooker-Feldman deprives the

federal court of jurisdiction; if it did not, Rooker-Feldman

provides no bar. /d.

Using these principles as a guide, the court is convinced

that it does not have jurisdiction over plaintiff's claims.

After a careful reading of plaintiff's complaint, affording him

the liberality given to all pro se litigants, the court concludes

that each of plaintiff's claims is inextricably intertwined with

the state court’s judgments against him and in favor of the

ee ee eee Oe

5

Leavitts; thus, under Rooker-Feldman, those claims may not

be reviewed by this court. Plainly, the true purpose in filing

his federal complaint is to redress plaintiff's dissatisfaction

with the outcome of the state court proceedings. In his com-

plaint, for example, plaintiff complains about the losses he

has suffered as a result of having his funds garnished, having

to post a bond, and having to pay the Leavitts damage for lost

rent. He complains about the Leavitts’ efforts to obtain an

award of attorney fees. In his prayer for relief, he seeks reim-

bursement for these amounts, including the “loss of bond

money” and the loss of his garnished funds. These claims,

then, are inextricable intertwined with the state court proceed-

ings. See Kenmen, 314 F.3d at 476 n.6 (federal court upsets a

state court judgment, and violates Rooker-Feldman, when it

awards damages for losses incurred as a result of complying

with state court judgment); Doop v. Loring, 2002 WL

31839852, at *1 (10 Cir. Dec. 19, 2002) (to extent plaintiff

alleged illegal activity under RICO for actions taken pursuant

to state court rulings, federal district court correctly conclud-

ec that its jurisdiction was barred by Rooker-Feldman doctrine).

Plaintiff also suggests in his complaint that the defendants

obtained the judgment against him (including the award of

attorney fees and the garnishment order) through fraud and

improper means. As the Tenth Circuit has noted, however:

[t]he proper remedy for a state court litigant’s dissatisfaction with a

state court judgment, however, is not a suit in federal court; instead,

litigants must seek review of a state court judgment through the state

appellate process. Then, if still dissatisfied, they may seek-review in

the United States Supreme Court.

Ellis v. CAC Financial Corp., 2001 WL 289943, at *3 (10"

Cir. Mar. 26, 2001). Thus, even where, as here, the plaintiff

does not expressly seek to overturn the state court judgment,

but complains instead about the procedures used to obtain

that judgment, it is impossible for the federal court to resolve

6

such claims without calling into question the state court

judgment and violating Rooker-Feldman. Id. Clearly, this

court cannot resolve plaintiffs claim that the garnishment

order was obtained through fraud without essentially review-

ing the order itself. Similarly, the court cannot resolve plain-

tiff’s claim that the Leavitts obtained an award of attorney fees

through improper means without calling into question that

award. See Barnett v. State of Colorado, 2003 WL 22321478,

at *2 (10" Cir. Oct. 10, 2003) (federal court plaintiff's chal-

lenge to award of attorney’s fees against him in state court was

inextricably intertwined with state court judgment).

In his brief in response to the motion to dismiss, plaintiff

urges that his claims fall outside the ambit of Rooker-Feldman.

He states, for example, that he was injured not by the state

court judgments but by the defendants’ “criminal acts” in ob-

taining and enforcing those judgments and that he is not seek-

ing relief from the judgments but from the “criminal wrongs

committed by the defendants.” Plaintiff's attempt to reframe

the issues is unavailing. The fact remains that plaintiff, in his

federal court complaint, seeks monetary damages attributable

to losses he sustained as a result of having to post a bond,

having to pay a portion of defendants’ attorneys’ fees, and

having his funds garnished-all pursuant to a state court order.

But for the state court judgments, then, plaintiff would have

suffered no injury. Thus, he is essentially seeking an

“undoing” of the state court judgments and he cannot do so

here in federal court. See Kenmen, 314 F.3d at 477 (federal

court cannot place a plaintiff back in the position he occupied

prior to a state court judgment).’

plaintiff also urges that Rooker-Feldman has no application to

this case because his RICO claims were not raised in the state court

proceedings and could not have been raised because much of the conduct

he complains about occurred after the judgments were entered. Of course

the fact that his claims were not actually raised in the state court

proceedings has no bearing on the application of Rooker-Feldman.

7

Despite his protests to the contrary, it is clear that

plaintiff's injury resulted from the state court judgments, that

his complaint in federal court seeks only to upset that

judgment, ant that the resolution of his federal claims

necessarily requires consideration of the underlying state

court decision. See Kenmen, 314 F.3d at 476. As Judge

O’Connor of this court noted with respect to Mr. Dickerson’s

civil nights claims against these defendants, the court “cannot

envision how plaintiff could obtain any relief based on his

federal claims without a factual finding that the state court

judgments entered against plaintiff were erroneous.” See

Dickerson v. Leavitt Rentals, 995 F. Supp. 1242, 1246 (D.

Kan.) aff'd, 153 F.3d 726 (10" Cir. 1998) (affirming district

court and further noting that Mr. Dickerson’s claims were

“patently frivolous”). Accordingly, the court grants

defendants’ motion to dismiss plaintiff's complaint for lack

of subject matter jurisdiction.

IT IS THEREFORE ORDERED BY THE COURT

THAT defendants G. Ronald Bates, Paul Leavitt, Deborah

Leavitt, and Crow, Clothier & Bates’ motion to dismiss (doc.

#12) is granted and defendant Charlene Brown’s motion to

dismiss (doc. #16) is granted. Plaintiffs’ first amended

complaint is dismissed in its entirety.

IT IS SO ORDERED.

Dated this 22™ day of October, 2003, at Kansas City

Kansas.

s/John W. Lungstrum

John W. Lungstrum

United States District Judge

APPENDIX-C

U.S. CONSTITUTION: FIFTH AMENDMENT

Fifth Amendment-Rights of Person

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal cases to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

~ of law; nor shall private property be taken for public

use, without just compensation.

APPENDIX-D

U.S. CONSTITUTION: FOURTEENTH AMENDMENT

SECTION 1. All person born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the law.

Sa a ate) ie

oe ee ee ae Fy

APPENDIX-F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DURAND DICKERSON )

Plaintiff )

VS.

CASE NO. 03-2337_J WL

G. RONALD BATES, ATTORNEY AT LAW

CHARLENE BROWN,

PAUL LEAVITT

DEBORAH LEAVITT

CROW, CLOTHIER, AND BATES,

A KANSAS CORPORATION

PLAINTIFF’S FIRST AMENDED COMPLAINT

I

JURISDICTION

1. Durand Dickerson, (hereinafter Plaintiff) is a citizen of

the State of Kansas, and the defendants are citizens of the

State of Kansas, and some have principle place of business in

the State of Kansas.

2. Jurisdiction of this Court is found on the existence of a

question raised under 18 United States Code 1961 et seg, The

Organized Crime Control Act of 1970, Public Law 91-452

section 901(a) 84 stat. 941, as it hereinafter more fully

appears, and 28 U.S.C. 1331; 18 U.S.C. 371, 18 U.S.C. 1341,

1342, 1343, 1344, and 1346; 18 U.S.C. 2(a) and (b); K.S.A.

60-701 et seg.; K.S.A. 33-101 et seq.; and K.S.A. 21-3701 et

seq.

3. Subject matter jurisdiction is vested concurrently in the

United States District Courts and in States Courts, 18 U.S.C.

1964(c).'

4. R.LC.O. does not invalidate or supersede Kansas State

laws, and R.I.C.O. remedies actually complement Kansas

laws, and does not frustrate state regulation or state laws’.

5, Personal jurisdiction over the defendants is determined

by the reference herein to the state law of Kansas cited above.

6. Plaintiff is aware of the split among the Circuit and

District Courts concerning jurisdiction of governmental

agencies and officers, and Plaintiff is also aware that the Tenth

Circuit and the Kansas District Courts has made no decision

on jurisdiction. However pursuant to McNally v. United States

US 350 (1987), this Court has jurisdiction over the

governmental agencies and officers defendants.

7. “Abstention From Jurisdiction” is not appropriate in this

cause as there is no “Parallel Duplicative” State proceeding

that could or would exist.” Further “Abstention From

Jurisdiction” is not appropriate as the Defendants cannot meet

the “Burford Abstention Test.”

3

8. Plaintiff has authority pursuant to the Federal Rules of

Civil Procedure to amend his complaint prior to the

defendants being served. None of the defendants have

been served as of the date of the filing of this First

Amended Complaint.

' Tafflin v. Levitt 493 US 455 (1990)

Fox v. Maulding 16 F.3d 1079 (10™ Cir. (1994)

Starlight International Inc v. Herlihy, 13 Fed Supp. 2d 1178 (D. Kan.

1998)

2 Humana Inc. v. Forsythe, 142 Led. 2d 753 (1999).

3 Serras v. First Tennessee Bank National Association 875 F.2d 1212 (6*

Cir. 1989)

F.M.C. Corp. v. Varonos 892 F2d 1308 (7" Cir. 1990)

* McLaughlin v. United Virginia Bank, 955 F2d 930, 935 (4™ Cir. 1992)

> Burford v. Sun Oil 319 US 315 (1943)

- New Orleans Public Service Inc. v. New Orleans 491 US 350 (1989)

Colorado River Water Conservation District v. United States 424 US 800

(1976)

|

VENUE

9. Civil R.I.C.O. actions may be brought in the United

States District Court for any district in which a defendant

resides, is found has an agent, or transacts business. This

Court has venue pursuant to 28 USC 1391(b).°

10. Venue is proper in this Court pursuant to 18 USC

1965(a) and (b), and is broader than the general venue statue

at 28 USC 1391(b).’

Il

INTERSTATE COMMERCE

11. Defendant Crow, Clothier and Bates is engaged in

interstate commerce by representation of clients from without

the state of Kansas, and the practice of law outside the state of

Kansas.

12. Defendant Charlene Brown, as the clerk of the District

Court for the County of Leavenworth, Kansas, files papers on

behalf of persons throughout the United States, especially suits

on behalf of military personnel.

13. Defendant Paul Leavitt and Deborah Leavitt buy and

sell used equipment throughout the United States, owns or

owned an aluminum recycling can center in Rushville,

Missouri. Defendant Paul and Deborah Leavitt owns or have

owned a recycling center in Leavenworth, Kansas that deals

with persons or business from outside of the state of Kansas.

14. Defendant G.Ronald Bates, in the practice of law

represents persons or companies that affect interstate

commerce and practices law outside of the state of Kansas.

15. The convexity to interstate commerce under R.I.C.O. is

minimal,® as such the operation and the activities of the

* Farmers Bank of Delaware v. Bell Mortgage Corp. 452 Fed Supp. 1278

(D. Del. 1978)

” King v. Vesco 342 Fed Supp. 120 (N.D. Cal 1972)

Wichita Federal Savings and Loan Association v. Landmark Group Inc.

674 Fed Supp. 321 (D. Kan. 1987)

* Cowan v. Corley 814 F2d 223 (5" Cir. 1987)

association-in-fact is sufficiently related to interstate

commerce.

IV

PARTIES

16. Durand Dickerson (hereinafter “Plaintiff’) is a citizen of

the State of Kansas.

17. G. Ronald Bates Jr., Attorney at Law, (hereinafter

(BATES”) is an attorney engaged in the practice of law and so

licensed by the State of Kansas during the period covered by

this complaint, and is a citizen of the State of Kansas. :

18. Charlene Brown, court clerk, (hereinafter “CLERK” is

: a clerk of the Leavenworth County District Court, and was

during the period covered by this complaint, and is a citizen of

the State of Kansas.

19. Crow, Clothier, and Bates, (hereinafter “CCB”) is a law

firm, corporation so licensed by the State of Kansas during the

period covered by this complaint.

20. Paul Leavitt, (hereinafter “PAUL”) is a citizen of the

State of Kansas.

21. Deborah Leavitt, (hereinafter DEBORAH”) is a citizen

of the State of Kansas.

Vv

CO-CONSPIRATORS

22. Various persons, firms, and corporations not named as

defendants, participated as co-conspirators in the enterprise

and acts listed herein, and made statements in furtherance

thereof.

VI

STATEMENT OF THE NATURE OF THE R.LC.O.

CLAIMS

(A)

DEFINITIONS

23. | Whenever in this complaint, reference is made to any

act, deed or transaction of any corporation, such allegation

shall be deemed to mean that said corporation engaged in such

act, deed or transaction by or through it’s officers, directors,

agents, employees, representatives while they were actively

engaged in the management, direction, control or transactions

of it’s business or affairs.

24. Enterprise is defined in 1961(4), as any individual,

partnership, corporation, association or other legal entity, and

any union, or group of individual’s associated-in-fact though

not a legal entity.”

25. Association-in-fact is defined as corporations, as well

as individual persons, or between individuals and business

entities. '°

26. Enterprise: Acquisition or control of can be shown

by an acquired interest in or control of, for the purpose of

manipulating Court cases, or acquiring funds from the Plaintiff

through this manipulation. !!

27. Culpable Person and the R.I.C.O. enterprise may be

individual, and is not required to be separate from the

enterprise.’

28. Pattern of Racketeering is defined as two or more acts

of racketeering, one of which occurred after the passage of the

R.I.C.O. Act in 1970, which shows relationship plus _

continuity.

29. Pattern of Racketeering Continuity is facts that show

a threat of continued criminal conduct and extends to other

persons activities. '?

30. Pattern of Racketeering Single Scheme can be a

pattern of racketeering.

” United States v. Turkette 452 US 576, 583 (1981)

'° UNA Plus Inc. v. Apria Health Care Group Inc. 29 Fed Supp. 2™ 1253

(D. Kan. 1998)

'' Sunbird Air Services Inc. v. Beech Aircraft Corp. 789 Fed Supp. 364 (D.

Kan. 1992)

Garbade v. Great Divide Mining and Milling Corp. 831 F2d 212 (10"

Cir. 1987)

'? Boone y. Carlsbad Ban ation Inc. 972 F2d 1545 (10" Cir. 1996)

31. Pattern of Racketeering Number of Victims is

alleging that others have been similarly victimized.

32. Pattern of Racketeering Relationship of Acts is

shown by proving at least two related acts that amount to or

threaten long-term predicate activity. Relationship means acts

that have the same or similar purpose, results, participants,

victims, or method of commission.

33. Prohibited Activities is defined as a violation of one or

more activities defined in 18 USC 1962(a)(b)(c) and (d).

34. Investment in an Enterprise with Racketeering

Income is defined as a classical money laundering scenario in

which funds that are earned through the commission of acts of

racketeering are invested in an enterprise, in an apparently

lawful manner. One good example of an 18 USC 1962 (a)

violation comes not from the Courts, but from the pen of

author Mario Puzo in his modern day classic novel and movie

“The Godfather”. Vito Corleone violated 18 USC 1962 (a)

by using funds derived from various racketeering activities to

gain an interest in a legitimate olive oil company.’

35. Vicarious Liability is defined as when an individual or

entity benefited by it’s employees or agents R.LC.O. violation,

and is properly liable for the racketeering activity of it’s

employees or others acting on it’s behalf.

36. Conducting an Enterprise Through Racketeering is

defined as illegal for any person associated with or employed

by an enterprise engaged in interstate or foreign commerce to

actually conduct or participate in the affairs of the enterprise

through a pattern of racketeering activity.'®

'$ J Inc. vy. Northw | 492 US 229 (1989)

'S Miller v. Moffat County State Bank 678 Fed Supp. 247 (D. Colo. 1988)

‘6 HJ Inc. v. Northwestern Bell Telephone 492 US 229 (1989)

7 Gutierrez v. Givens | Fed Supp. 2” 1077 (S.D. Colo. 1998)

8 Reese vy. Ernest and Young 113 Supreme Court 1163 (1993)

37. Conspiracy is defined as a conspiracy to violate

1962(a), (b), or (c) and is distinct from a conspiracy to commit

a predicate offense

38. Aiding and Abetting Liability is defined as

association, participation in activity as something he wishes to

bring about, sought through his actions to make it succeed””

39. Predicate Offence is defined as a violation of a state or

federal statue whether criminal or civil.

40. Governmental Agencies/Officers is the intangible right

of the citizenry to good and honest government.”!

41. Injury Causation is injury proximately caused by

conduct constituting the violations.”

42. Intent is the willfulness standard.”

43. Lawyers as Parties is a law firm and it’s partners can

be vicariously and substantively liable for a scheme

under R.I.C.O. of mail fraud, conspiracy, intangible

right to honest service, wire fraud, and 18 USC 1001.”

Vil

FACTUAL NARRATIVE

(1)

PREFACE: OUTLINE OF A PATTERN OF

RACKETEERING ACTIVITY

'? United States v. Silva 118 Sup. Ct. 469 (1997)

?° National Electric Benefit Fund v. Henrey Bros. 931 Fed. Supp. 169

(N.D. NY 1995)

*! McNally v. United States 483 US 350 (1987)

22 Holmes v. ities Investor Protection . 503 US 258 (1992)

Peterson v. Shanus 149 F3d 1140 (10" Cir. 1998)

UNA Plus, Inc. v. Apria Health Care Group Inc. 29 Fed Supp. 2d 1253

(D. Kan. 1998)

23 Epi ¥ 7 lpine Mutual Fund Trust 905 Fed Supp. 843 (D.

Colo. 1995)

* Crowe v. Henry 43 F3d 198 (5® Cir. 1995)

Appleby v. West 832 F2d 1021 (7 Cir. 1987)

Handeen v. LeMaire 112 F3d 1339 (8* Cir. 1997)

44. The RICO Statue defines a pattern of racketeering

activity as two or more acts of racketeering, one of which

occurred after the passage of the RICO Act and within ten

years of the date of the other act of racketeering.

45. This pattern started in August 1996 and continued

through October 1999. This is not a

trivial routine case, the conduct set forth herein was over a

three (3) year period of time, involved private and public

officials, officers of the Court, and others. The fact is this is a

normal day to day operation by the individuals as confirmed in

testimony.

46. Dickerson has outlined in this Complaint seven (7)

instances of false statements, seven (7) instances of

deprivation of honest service, two (2) instances of money

laundering, two (2) different conspiracies, theft of

property, deprivation of property, that all of the injuries

were distinct and that this is a large and complex scheme.

(2)

THE ENTERPRISE

47. The enterprise concept is not required to be legitimate

enterprises”’ an association-in-fact is listed as a basic type of

enterprise under RICO.’ The association-in-fact here is G.

Ronald Bates Jr., Paul Leavitt, Deborah Leavitt, Crow,

Clothier, and Bates, and Charlene Brown, was and is an

ongoing organization in which they function as a continuing

unit and all depended on each other to further the scheme.

(3)

GOVERNMENT OFFICERS

25 Resolution Trust Corp. v. Stone, 998 F2d 1534 (10" Cir. 1993)

26 United States v. Turkette 452 US 576 (1981)

27 UNA Plus Inc. v. Apria Healthcare Group Inc. 29 F.Supp 2” 1253, (D.

Kan. 1998)

48. Dickerson has set forth seven (7) predicated acts

pursuant to 18 U.S.C. 1346 that is the intangible right to good

and honest government.”®

(4)

INJURY

49. Dickerson was injured by the loss of funds $20,000.00

approximately that could have been used to operate his

business. Because of the deprivation of these funds

Dickerson business failed’? and Plaintiff loss

$4,880,000 in business and the use of the funds.

(5)

CULPABLE PERSON

50. A person liable under RICO is on who maintains an

interest in or participates in the affairs of an enterprise.

Pursuant to 18 U.S.C. 1962 (a) (b) and (c) Dickerson has

showed the enterprise is an association-in-fact and that G.

Ronald Bates Jr., Crow, Clothier and Bates, Paul Leavitt,

Deborah Leavitt, and Charlene Brown are the culpable

persons.”

51. A law firm can be culpable for acts of mail fraud, wire

fraud, money laundering, and state fraud for acts in

representation of clients, if the acts assisted in the scheme to

defraud,’ | So named is Crow, Clothier, and Bates, all acts were

done during the representation of the Leavitts, and in

conspiracy with others known and unknown to Dickerson.

(6)

CULPABLE PERSON V. ENTERPRISE

78 McNally v. United States, 483 US 350 (1987)

Peterson v. Shanks 149 F3d 1140, (10" Cir. 1998)

* Garbade v. Great Divide Mining and Milling Corp. 831 F2d212 (10"

Cir. 1987)

RTC v. Stone 988 F. 2” 1553 (10" Cir. 1993)

*" Crowe v. Smith 856 F. Supp 1178 (W.D. La. 1994)

52. Dickerson has shown that the enterprise is an

association-in-fact made up of G. Ronald Bates, Crow,

Clothier and Bates, Paul Leavitt, Deborah Leavitt, and

Charlene Brown.

53. This enterprise has an identity separate and apart from

that of the individual defendants.”

the fact is the enterprise association-in-fact operates apart and

separate from the culpable person and its’ only purpose is to

violate the law.

(7)

LAWYERS AS PARTIES

54. Dickerson has charged defendant G. Ronald Bates Jr.

whom is a lawyer and Crow, Clothier, and Bates whom iS

a legal corporation with being culpable persons, and

members of an association-in-fact enterprise, and

participated in the scheme to defraud Dickerson.

(8)

CONSPIRACY

55. The nature of the conspiracies as set forth herein were

that the defendants G. Ronald Bates Jr., Paul Leavitt,

Deborah Leavitt, Crow, Clothier, and Bates, and Charlene

Brown, agreed to commit violation of 18 U.S.C. 1341,

1343, 1346, 18 U.S.C. 1956, and 1957, 18 U.S.C. 1001, 18

U.S.C. 1503 and K.S.A. 33-106, K.S.A. 21-3705, K.S.A.

21-3711, K.S.A. 21-3701. In each Count herein

Dickerson has shown with particularity the role of each

defendant®’ and that they had an agreement to engage in

the pattern of racketeering, and that Dickerson was injured

from the conspiracies.

(9)

AIDING AND ABETTING

32 RTC v. Stone 998 F2d 1553, (10 Cir. 1993)

33 Midwest Grinding Co. y. Spitz 716 F. Supp. 1087 (N.D. Ill. 1989)

10

.

$

56. The defendants, G. Ronald Bates Jr., Paul Leavitt,

Deborah Leavitt, Crow, Clothier, and Bates, and Charlene

Brown, aided and abetted each other in the scheme of mail

fraud, wire fraud, intangible right of honest services,

money laundering, false statements, and conspiracy to

commit prohibited enterprise activities to bring about these

schemes, as- sociated themselves for such purpose and

sought through their actions to make it succeed. The

defendants G. Ronald Bates Jr., Paul Leavitt, Deborah

Leavitt, Crow, Clothier, and Bates, and Charlene Brown,

took part in directing the affairs of the enterprise and had a

role in covering up the RICO scheme.

(10)

TREBLE DAMAGES

57. The compensable injury of denying Dickerson the use of

his funds, and the ensuring loss of

his business, caused by the mail fraud, wire fraud,

intangible right to honest service, money laundering, false

Statement, and conspiracy which were predicate acts, that

sufficiently relate to a pattern, in connection with the

operation of the enterprise which is cause for awarding of

treble damages as punitive punishment,” therefore since it is

penal in nature it is not subject to reduction as duplicative, and

the Supreme Court has acknowledged what is punitive and

remedial.”

Vill

PREDICATE ACTS

COUNT ONE: MAIL FRAUD

RACKETEER INFLUENCED AND CORRUPT

ORGANIZATIONS

18 U.S.C. 1961 AND 18 U.S.C. 1341

** Sedima SPRL v. Imrex Co. 473 US 479 (1985)

Summers v. FDIC 592 F. Supp. 1240 (W.D. Okla. 1984)

* Pacific Health Care Systems Inc. v. Book, et al U.S. Sup. Ct. April 7,

2003

11

58. The preceding paragraphs are incorporated herein as if

fully set forth at length.

59. This complaint alleges that all the Defendants have

violated the Racketeer Influenced and Corrupt Organization

Act (RICO). }

60. The Defendants have an interest and have maintained an

interest, or previously had an interest in the association-in-

fact. The Defendants have held such interests through their

position as either public officials, business owners or citizens.

61. The activities of the association-in-fact [enterprise] have

a significant affect on interstate commerce.

62. The Defendants have utilized the [enterprise] to engage

in racketeering acts, in violation of RICO.

63. The Defendants have committed more than two

predicate ciiminal acts which include Count-1 mail fraud, as

pled herein, which constitute a pattern of behavior in violation

of RICO. The actions of the Defendants were at all times

outrageous, and committed with bad motive and/or reckless

indifference to the rights of the Plaintiff. The Plaintiff has

been damaged in his business and property by the acts of the

[enterprise] which includes the Defendants.

MAIL FRAUD PREDICATE

64. The Plaintiff alleges that the Defendants through the

(enterprise] have violated the laws of the United States and the

State of Kansas for the intent of promoting their purpose and

[enterprise] in violations of RICO. Such criminal violations of

mail fraud are detailed herein.

65. The Defendants have violated 18 USC 1341 mail fraud

to wit:

To devise a scheme and artifice to defraud and to obtain

money from the Plaintiff by means of false and fraudulent

pretenses, promises, and representation, through material

12

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misrepresentation and in execution thereof, caused the use of

the United States mail.

66. On or about September 27, 1999, the Defendants

“BATES”, “PAUL”, “DEBORAH”, “CCB”, and “CLERK”

aided and abetted by each other for the purpose of executing

and carrying out a scheme and artifice to defraud, and to

obtain money from Plaintiff, by false and fraudulent pretenses,

representations with material misrepresentations did

knowingly and willfully cause mail matter to wit, an envelope

containing a proposed journal entry in 9704-LC-474. This

was in violation of K.S.A. 60-701 ef. seg. and K.S.A. 33-101

et.seq, 18 USC 1341 and 1346.

67. Onor about July 1, 1999, the Defendants “BATES”,

“PAUL”, “DEBORAH”, “CLERK”, and “CCB” aided and

abetted by each other for the purpose of executing and

carrying out a scheme and artifice to defraud, and to obtain

money from Plaintiff, by false and fraudulent pretenses,

representations, with material misrepresentation; mailed to the

Leavenworth CountyCourthouse a judgment calculation in

case no. 9704-LC-474 for collection of $3,600.00 of which

had already been collected on April 1, 1997, in violation of

K.S.A. 60-701 et.seg. and K.S.A.33-101 et. seq, 18 USC 1341

and 1346.

: 68. Onor about May 1, 1998 “BATES”, “PAUL”,

“DEBORAH”, “CCB”, and “CLERK”, aided and abetted by

each other for the purpose of executing and carrying out a

scheme and artifice to defraud, and to obtain money from

Plaintiff, by false and fraudulent pretenses, representations,

with material misrepresentation, did knowingly and willfully

cause mail matter, to wit, an envelope with a motion to the

Court of Appeals of the State of Kansas in Case no. 9704-LC-

474 for attorneys fees knowing there was no bond money

posted in 9704-LC-474.

69. On or about April 2, 1998, “BATES”, “PAUL”, “CCB”

and “DEBORAH” aided and abetted by each other for the

purpose of executing and carrying out a scheme and artifice to

defraud, and to obtain money from the Plaintiff, by false and

fraudulent pretenses, representation, with material

13

misrepresentation, did knowingly and willfully cause mail

matter, to wit, an envelope with a Court of Appeals brief, case

no. 96-77822-A, that on page 7 conceded that it was a void

judgment in case no. 9608-LC-698 and that there was not a

lease.

70. Onor about March 19, 1998, “BATES”, “CCB”, |

“PAUL”, “DEBORAH”, and “CLERK”, aided and abetted by

each other for the purpose of executing and carrying out a

scheme and artifice to defraud, and to obtain money from the

Plaintiff, by false and fraudulent pretenses, representation,

with material misrepresentation, did knowingly and willfully

cause mail matter, to wit, an envelope with an addition to the

record of a non-existent lease to the Court of Appeals.

71. Onor about August 18, 1997, “BATES”, “CCB”,

“PAUL”, “DEBORAH”, and “CLERK”, aided and abetted by

each other, for the purpose of execution and carrying out a

scheme and artifice to defraud, and to obtain money from the

Plaintiff, by false and fraudulent pretenses, representation with

material misrepresentation, did knowingly and willfully cause

mail matter, to wit, an envelope containing a garnishment of

funds totaling $402.63 in case no. 9704-LC-474 without

notifying Plaintiff in violation of K.S.A. 60-701 et.seq. and

K.S.A. 33-101 et.seg, 18 USC 1341 and 1346.

72. Onor about April 1, 1997 “BATES”, “PAUL” ,

“DEBORAH”, “CCB” aided and abetted each other, for the

purpose of executing and carrying out a scheme and artifice to

defraud, and to obtain money from the Plaintiff, by false and

fraudulent pretenses, representations, with

material misrepresentations, did knowingly and willfully cause

mail matter, to wit, an envelope with a letter to Plaintiff that

the defendants “PAUL” and “DEBORAH” were keeping

Plaintiffs’ $3,000.00 knowing that on July 1, 1999 they would

collect the same $3,000.00 again from the Plaintiff, in

violation of 18 U.S.C. 1341,1346, K.S.A. 60-701 et seq. and

K.S.A. 33-101 et seq.

73. Onor about September, 20, 1996, “BATES”, PAUL.

“DEBORAH”, “CLERK”, and “CCB” aided and abetted by

each other, for the purpose of executing and carrying out a

14

Te ee

PRT ET OE Oe er

scheme and artifice to defraud, and to obtain money from

Plaintiff, by false and fraudulent pretense, representations,

with material misrepresentations, did knowingly and willfully

cause mail matter, to wit, an envelope with a letter to Plaintiff

to post a $6,000.00 supersedeas bond in case n. 9608-LC-698

when they knew that on April 2, 1998 they would admit that

9608-LC-698 was a void judgment without jurisdiction, in

violation of K.S.A. 33-101 et.seg, and 18 USC 1341 and 1346.

74. Onor about September 16, 1996, “BATES”, “CCB”

“PAUL”, “DEBORAH”, and “CLERK”, aided and abetted by

each other, for the purpose of executing and carrying out a

scheme and artifice to defraud, and to obtain money from the

Plaintiff, by false and fraudulent pretenses, representations,

with material misrepresentations, did knowingly and willfully

cause mail matter, to wit, an envelope with Itemized Attorney

Fees, for case no. 9608-LC-698 knowing that case no. 9608-

LC-698 was a void judgment without jurisdiction, in violation

of K.S.A. 33-101 et.seq, and 18 U.S.C. 1341, 1346.

75. All the listed mail fraud counts have established that the

use of the mails were an essential part of the scheme to cheat

Plaintiff, and that others relied on the fraudulent mailings,

which lulled others into a false sense of security, and that over

a three year period were a scheme and artifice to defraud

Plaintiff of money, by all the defendants.

76. All of the listed mail fraud counts established an

“association-in-fact” of G. Ronald Bates, Paul Leavitt,

Deborah Leavitt, Charlene Brown, “Crow, Clothier, and

Bates” which is an [enterprise], that is ongoing, and did

not have a single short term goal.

COUNT TWO

CONSPIRACY: 18 U.S.C. 371, 1341, 1343, 1346, and

K.S.A. 21-3302

THE ALLEGATIONS OF PARAGHAPH 58 THROUGH 76

ARE RE-ALLEGED AS IF FULLY SET FORTH HERE

15

77. Onor about and between at least July 1996 and October

1999, both dates being approximate and inclusive, within

the District of Kansas, and elsewhere, the defendants

“BATES”, “CCB”,“PAUL”, “DEBORAH” “CLERK” and

others knowingly and intentionally conspired to devise a

scheme and artifice to defraud, including to deprive

“PLAINTIFF” of his right to honest services, and to obtain

money and property by means of materially false and

fraudulent pretenses, representations and promises, and for

the purpose of executing such scheme and artifice would

transmit and cause to be transmitted by means of wire

communication in interstate and foreign commerce in

violation of 18 U.S.C. 1343, and by causing the use of the

mails for the purpose of executing such scheme and

artifice in violation of 18 U.S.C. 1341,1346

and K.S.A. 21-3302.

78. It was part of the scheme that the defendants’

“BATES”, “PAUL”, “DEBORAH”, “CLERK”, “CCB”

and others took advantage of their control over the Judicial

System to enrich themselves and others, including family

members, friends and clients.

OVERT ACTS

79. In furtherance of the conspiracy to effect the objects

thereof, within the District of Kansas and elsewhere, the

defendants, “BATES”, “PAUL”, “DEBORAH”,

“CLERK”, “CCB” and others did commit and cause to be

committed the following overt acts, among others:

80. Onor about July 1, 1999, the District Clerk paid to G.

Ronald Bates Jr. $3,600.00 without a Court Order or a

garnishment to do so.

81. Onor about July 1, 1999, G. Ronald Bates Jr., Crow,

Clothier and Bates, Paul and-Deborah Leavitt exchanged

checks concerning the $3,600.00.

16

om

82. On or about August 18, 1997, Crow, Clothier and Bates,

G. Ronald Bates Jr. and Charlene Brown directed by mail

an answer garnishment.

83. Onor about March 18, 1998, Crow, Clothier and Bates,

G. Ronald Bates Jr. sent by mail an “Addition To The

Record” of a non-existent lease.

84. Onor about July 1, 1999, Crow, Clothier, and Bates

deposited $3,600.00 in their account.

85. Onor about October 1, 1997, Charlene Brown mailed an

“Order For Payment Of Garnishment” to G. Ronald Bates -

Jr. at “Crow, Clothier, and Bates”.

86. On or about May 1, 1998, Charlene Brown mailed an

“Order For Payment Of Garnishment” to G. Ronald Bates

Jr. at “Crow, Clothier and Bates”.

87. Onor about March 18, 1999, Charlene Brown mailed an

“Answer On Garnishment” to G. Ronald Bates Jr. at

“Crow, Clothier and Bates”.

88. On or about July 1, 1999 Charlene Brown mailed to G.

Ronald Bates Jr. at “Crow, Clothier and Bates” an “Order

For Payment Of Garnishment”.

89. On September 20, 1996 G. Ronald Bates Jr. caused

Patrick Henderson to mail a letter requesting $6,000.00

supersedeas bond to Durand Dickerson.

90. On or about October 23, 1999 Charlene Brown mailed

an order denying Dickersons’ “Motion to Retrieve Bonds,

Security Deposit, and Bank Garnishment Funds”.

ADDITIONAL OVERT ACTS

91. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count —2 paragraph 90 as additional

overt acts.

COUNT THREE

CONSPIRACY TO COMMITT PROHIBITED

ENTERPRISE ACTIVITIES 18 U.S.C. 1962(d)

17

92. All the defendants “BATES”, “PAUL”, “DEBORAH”,

“CCB” and “CLERK” comprise an association-in-fact

enterprise.

93. The defendants “BATES”, “PAUL”, “DEBORAH”,

“CCB”, and “CLERK” have agreed to participated in the

affairs of the enterprise through the commission of two or

more predicate acts to wit:

94. The allegations of paragraphs 58 through 93 are re-

alleged as if fully set forth here:

95. That is the defendants “BATES”, “CCB”, “PAUL”,

“DEBORAH”, and “CLERK” adopted the goals of

furthering and facilitating the objectives of the conspiracy,

and they all knew it was a conspiracy to violate RICO.

96. All the defendants “BATES”, “CCB”, “PAUL”,

“DEBORAH”, and “CLERK” agreed to commit: mail

fraud 18 U.S.C. 1341, wire fraud 18 U.S.C. 1343, money

laundering 18 U.S.C. 1956 et seq. and 18 U.S.C. 1957,

deprivation of honest services 18 U.S.C. 1346, false

statement 18 U.S.C. 1001, fraud K.S.A. 33-106,

deprivation of property K.S.A. 21-3705, making false

information K.S.A. 21-3711, and theft K.S.A. 21-3701(a)

(1)(2)(3) and (6)(2).

ADDITIONAL OVERT ACTS

97. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-3 paragraph 96 as additional

overt acts.

COUNT FOUR

MONEY LAUNDERING: 18 U.S.C. 1956 AND 1957

98. The allegations in Count-1 paragraphs 58 through

Count-3 paragraph 97 are re-alleged as if fully set forth

here.

18

99. From on or about July 1996 to October 1999 in the

District of Kansas and elsewhere, the defendants

“BATES”, “CCB”, “PAUL”, “DEBORAH”, “CLERK”

and others did knowingly and intentionally conduct and

attempt to conduct financial transactions affecting

interstate commerce which transactions involved the

proceeds of specified unlawful activities, that is mail fraud

18 U.S.C. 1341, wire fraud 18 U.S.C. 1343, deprivation of

honest service 18 U.S.C. 1346, false statement 18 U.S.C.

1001, fraud K.S.A. 33-106, deprivation of property K.S.A.

21-3705, making false information K.S.A. 21-3711, and

theft K.S.A. 21-3701 (a)(1) (2)(3) and (b)(2) knowing that

the transactions were designed in whole or in part to

conceal and disguise the nature, location, source,

ownership, and control of the proceeds of the specified

unlawful activity, and that while conducting and

attempting to conduct such financial transactions, knew

that the property involved in the financial transactions

represented the proceeds of some form of unlawful

activity, in violation of 18 U.S.C. 1956 (a) (1)(A)(ii) and

18 U.S.C. 1956 (a)(1)(B)(i).

100. To engage and attempt to engage in monetary

transactions by, through or to a financial institution,

affecting interstate commerce, in criminally derived

property of a value greater than $10,000.00, that is the

deposit, withdrawal, or transfer of funds, such property

having been derived from a specified unlawful activity,

that is, mail fraud 18 U.S.C. 1341, wire fraud 18 U.S.C.

1343, deprivation of honest service 18 U.S.C. 1346, false

statement 18 U.S.C. 1001, fraud K.S.A. 33-106,

deprivation of property K.S.A. 21-3705, making false

information K.S.A. 21-3711, and theft K.S.A. 21-

3701(a)(1)(2)(3) and (b)(2).

OVERT ACTS

101. Within the District of Kansas and elsewhere

defendants “BATES”, “CCB” “PAUL”, “DEBORAH”,

19

“CLERK” and others did commit and cause to be

committed the following overt acts among others:

102. On or about July 1, 1999 the defendants “BATES”,

“PAUL”, “DEBORAH”, “CLERK” and others purported

to take by garnishment $3,600.00 supersedeas bond

money in order to conceal the nature of the payment of:

Attorneys’ fees and other fees to defendant Crow, Clothier

and Bates, and transferring the funds among themselves to

disguise the source of the funds.

ADDITIONAL OVERT ACTS

103. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-4 paragraph 102 as additional

overt acts.

COUNT FIVE

FALSE STATEMENT: 18 U.S.C. 1001, and K.S.A.

21-3711

104. The allegations in Count-1 paragraph 58 through

Count-4 paragraph 103 are re-alleged as if fully set forth

here.

105. On or about July 1996 through October 1999 in the

District of Kansas and elsewhere the defendants

“BATES”, “CCB” “PAUL”, “DEBORAH”, “CLERK”,

and others knowingly and willfully made and caused to be

made false and fictitious material statements and

representations in that:

106. “BATES” and “CCB”, in an appellate court brief

stated that “prior supersedeas bonds were posted to cover

future lost rent.

107. “BATES” and “CCB” in an appellate court brief stated

that “the actions was for enforcement of lease terms.

108. “BATES”, “PAUL”, and “DEBORAH” told the

defendant “CLERK” to release $4,259.25 and that there

was authority to do so.

20

109. “BATES” and “CCB” on July I, 1999 signed an

affidavit for attorney fees that had already been paid.

110. “BATES”, “CCB”, “PAUL”, and “DEBORAH” filed a

purported non-wage garnishment on or about January 27,

1999.

111. On September 17, 1999 defendant “CLERK” testified

: that “BATES”, “PAUL”, and “DEBORAH” took

$3,600.00.

112. On March 18, 1999 “CLERK” filed a purported non-

wage garnishment.

113. They falsely represented that such documents and

) testimony were true, when in fact the defendants

“BATES”, “CCB”, “PAUL”, “DEBORAH”, “CLERK”

and others knew that the documents were misleading,

incomplete and unlawful.

ADDITIONAL OVERT ACTS

114. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-5 paragraph 113 as

additional overt acts.

COUNT SIX

DEPRIVATION OF HONEST SERVICES: 18 U.S.C.

1346

115. The allegations of Count-1 paragraph 58 through

Count-5 paragraph 114 are re-alleged as if fully set forth

here.

116. On or about and between at least July 1996 and

October 1999, both dates being approximate and

inclusive, within the District of Kansas and elsewhere, the

defendants “BATES”, “CCB”, “PAUL”, “DEBORAH”,

“CLERK” and others devised a scheme and artifice by

materially false and misleading statements to deprive

Plaintiff of the intangible right of honest services by:

21

TT

117. Testifying on September 17, 1999 that “BATES”,

without authority had “CLERK” issue money payable to

“PAUL” and “DEBORAH”, in violation of 18 U.S.C.

1001, made false statements to “CLERK” in violation of

18 U.S.C. 1346.

118. OnJuly 1, 1999 “CLERK” provided to “BATES”,

“PAUL”, “DEBORAH”, and “CCB” $3,600.00 without

authority to do so, pursuant to 18 U.S.C. 1346.

119. On March 18, 1999 “CLERK” mailed an answer to

“BATES”, “CCB”, “PAUL, and “DEBORAH” about a

garnishment and failed to follow statutory procedure, in

violation of 18 U.S.C. 1341 and 1346.

120. OnJuly 1, 1999 “CLERK” mailed an “Order For

Payment OF Garnishment” to “BATES”, “CCB”,

“PAUL” and “DEBORAH” without following statutory

procedures in violation of 18 U.S.C. 1341 and 1346.

121. OnMay 1, 1998 “CLERK” mailed an “Order For

Payment Of Garnishment” to “BATES”, “CCB”, “PAUL”

and “DEBORAH” without following statutory procedures

in violation of 18 U.S.C. 1341 and 1346.

122. On August 19, 1997 “CLERK” mailed a garnishment

answer to “BATES”, “CCB”, “PAUL” and “DEBORAH”

without following statutory procedures in violation of 18

U.S.C. 1341 and 1346.

123. On April 21, 1997 “CLERK” mailed a garnishment

answer to “BATES”, “CCB”, “PAUL” and “DEBORAH”

without following statutory procedures in violation of 18

U.S.C. 1341 and 1346.

ADDITIONAL OVERT ACTS

124. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-6 paragraph 123 as

additional overt acts.

22

COUNT SEVEN

FRAUD: K.S.A, 33-101 ET SEQ.

125. The allegations of Count-1 paragraph 58 through

Count-6 paragraph 124 are re-alleged as if fully set forth

here.

126. Onor about July 1996 and between October 1999 both

dates being approximate and inclusive, within the District

of Kansas and elsewhere the defendants “BATES”,

“PAUL”, “DEBORAH”, “CLERK”, “CCB” and others

knowingly and intentionally made a material

misrepresentations of material fact, knowing the

representations were false, for the purpose of inducing

others to act upon them, and other parties relied upon the

misrepresentations and Dickerson sustained damages, in

violation of 18 U.S.C. 1341, 1346 and K.S.A. 33-101 ef

seq.

OVERT ACTS

127. Onor about January 13, 1999 an “Order For Non-

Wage Garnishment” was acquired through false and

fraudulent pretenses and without statutory authority was

given to the Sheriff in violation of 18 U.S.C. 1346.

128. On or about January 27, 1999 an “Order For Non-

Wage Garnishment” was acquired through false and

fraudulent pretenses and without statutory authority was

given to the Sheriff in violation of 18 U.S.C. 1346.

129. On March 18, 1999 a “Non-Wage Garnishment

Answer” was filed under false and fraudulent pretenses,

without statutory authority by “CLERK”.

130. On July 1, 1999 a “Garnishment” that was acquired

through false and fraudulent pretenses was given to

“CLERK”, asking for $3,600.00 in violation of 18 U.S.C.

1346.

131. On July 1, 1999 “BATES”, “PAUL” and

“DEBORAH” filed an affidavit stating facts that were

material misrepresentations to acquire a garnishment

23

through false and fraudulent misrepresentations in

violation of 18 U.S.C. 1341, 1346, and 1001.

132. OnSeptember 17, 1999 “BATES” and “CCB” testified

that they acquired garnishments through false and

fraudulent misrepresentations in violation of 18 U.S.C.

1001, 18 U.S.C. 1346, 18 U.S.C. 1956, and 1957.

133. On September 19,1999 “BATES” in testimony

admitted that a bond of $4,259.25 was acquired through

material misrepresentations and that “PAUL” and

“DEBORAH?” aided and abetted the false

misrepresentations.

134. All the false and fraudulent misrepresentations were

committed pursuant to state statue K.S.A. 60-701 et seq.

ADDITIONAL OVERT ACTS

135. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-7 paragraph 134 as

additional overt acts.

COUNT EIGHT

MAKING FALSE INFORMATION: _K.S.A. 21-3711

136. The allegations of Count-1 paragraph 58 through

Count-7 paragraph 135 are re-alleged as if fully set forth

here.

137. Onor about and between at least July 1996 and

October 1999, both dates being approximate and

inclusive, within the District of Kansas and elsewhere, the

defendants “BATES”, “CCB”, “PAUL”, “DEBORAH”,

“CLERK”, and other, knowingly, willfully, and

intentionally with material misrepresentations, make false

statement to wit:

138. OnJuly 1, 1999 “BATES” signed an affidavit for fees

that had already been paid in violation of 18 U.S.C. 1346,

18 U.S.C. 1001, 18 U.S.C. 1956 and 18 U.S.C. 1957.

139. Onor about July 1, 1999, “BATES”, “PAUL”, and

“DEBORAH?” told defendant “CLERK” to release the

24

ee

PEARS U EE PERMA AAA ISTE ON RE HOTS OF OT RT

$3,600.00 to pay for fee other than rent in violation of 18

U.S.C. 1001, 18 U.S.C. 1346, 18 U.S.C. 1956 and 1957.

140. On September 17, 1999. testified that “BATES”,

“PAUL”, and “DEBORAH” took $3,600.00 for purpose

other than rent in violation of 18 U.S.C. 1001.

141. “BATES” and “CCB” filed purported garnishment

without the statutory procedure to do so, and advising the

defendant “CLERK” not to follow statutory procedure in

violation of 18 U.S.C. 1001 and 18 U.S.C. 1346.

142. “BATES” and “CCB” falsely represented to a Court

that the procedures had been followed knowing that the

procedures had not been followed, and in fact inserted

themselves in the process by making false information in

violation of 18 U.S.C. 1346 and 18 U.S.C.1001.

ADDITION OVERT ACTS

143. Dickerson re-alleges all the allegations in Count-1

paragraph 58 through Count-8 paragraph 142 as

additional overt acts.

DAMAGES ALLEGATIONS

144. Upon conviction of one or more of the offenses alleged

in this complaint, the defendants G. Ronald Bates Jr., Paul

Leavitt, Deborah Leavitt, Charlene Brown, and the Law

Firm of “Crow, Clothier and Bates”, pursuant to 18

U.S.C. 1964(a)(c) a treble damage remedy is provided for

any person injured in his business or property by virtue of

a 18 U.S.C. 1962 violation. compensable injury is

necessarily the harm caused by predicate acts...°° for both

direct and indirect injuries, and is punitive.>’

145. The defendants, G. Ronald Bates Jr., Paul Leavitt,

Deborah Leavitt, Charlene Brown, and Crow, Clothier,

and Bates shall pay all right, title, and interest in any and

°° Sedima S.P.R.L. v. Imrex Co. 473 US 479 (1985)

*” Summers v. FDIC 582 F. Supp 1240 (W.D. Okla. 1984)

25

all property involved in each offense in violation of 18

U.S.C. 1956 and 18 U.S.C. 1957, or conspiracy to commit

such offenses, and all property traceable to such property

including treble damages in violation of 18 U.S.C. 371.

146. The loss of Dickerson Recycling Business, including

treble damages.

147. The loss of bond money and treble damages.

148. The loss of future income and treble damages.

149. The loss of State of Kansas grant funds and treble

damages.

150. The total of all of these losses and treble damages

exceeds $5,000,000.00.

151. Plaintiff is demanding a trial by jury at the United

States District Courthouse for the District of Kansas, 500

State Avenue, Kansas City, Kansas, 66101.

Durand Dickerson

P.O. Box 572

Leavenworth, Kansas 66048

(913)351-2919

26

APPENDIX -G

UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

DURAND DICKERSON,

Plaintiff,

Vv Case No. 03-2337-JWL

G. RONALD BATES,

CHARLENE BROWN,

PAUL LEAVITT,

DEBORAH LEAVITT,

CROW, CLOTHIER & BATES,

A KANSAS CORPORATION,

Defendants.

MEMORANDUM IN SUPPORT OF MOTION

TO DISMISS OF DEFENDANTS G. RONALD

BATES, CHARLENE LEAVITT, PAUL

LEAVITT, AND CROW, CLOTHIER & BATES

Defendants G. Ronald Bates (Bates), Paul Leavitt

and Deborah Leavitt (Leavitt), and Crow, Clothier &

Bates, a Kansas law firm (CCB), submit the

following memorandum brief of arguments and

authorities in support of their Motion to Dismiss.

I. NATURE OF THE MATTER BEFORE

THE COURT

Durand Dickerson’s Complaint alleges a claim

under the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.

Defendants Bates, Leavitt and CCB move, pursuant

to Federal Rules of Civil Procedure 12 (b)(6), to

dismiss the Complaint for failure to state a claim

upon which relief can be granted.

Il. STATEMENT OF THE FACTS

This complaint arises from a landlord-tenant

dispute between Plaintiff Durand K. Dickerson

2

(Dickerson) and Defendants Paul and Deborah

Leavitt over the lease of certain commercial realty

located in Leavenworth, Kansas. In connection with

the dispute, the Leavitts retained Defendant Bates, a

Leavenworth attorney, and his law firm, Defendant

CCB, to represent them in an action against

Dickerson for rents and possession. The Leavitts

prevailed against Dickerson in the resulting state

court litigation and thereafter Dickerson appealed

from the adverse judgment to the Kansas Court of

Appeals. Because Dickerson failed to file an

appropriate supersedeas bond and because Dickerson

remained in possession of the leased premises, Bates

subsequently filed on the Leavitts’ behalf new actions

against Dickerson for recovery of damages due to his

continuing default under the terms of the parties’

written lease agreement. Further, the Leavitts sought

and obtained available post judgment relief (e.g.

execution and garnishment) due to Dickerson’s

refusal to vacate the premises and otherwise

satisfy the Leavitts’ judgment.

The Kansas Court of Appeals dismissed four

appeals filed by Dickerson on the state district court

cases on December 24,1998 and granted attorney fees

amounting to $2500 to the Leavitts, CCB and Bates.

Dickerson filed a motion for rehearing, which was

denied by the Kansas Court of Appeals on February

5, 1999, and then a petition for review with the

Kansas Supreme Court, which was denied on March

16, 1999.

On February 19, 1999, Dickerson filed an action

against the Leavitts and Leavitt Rentals, their

business, in Leavenworth County District Court,

alleging that they had defrauded him. The Leavitts

| '

i

EPI PMI LYTTON TE DMO REE OLS PR BC ~ ore aainse

3

filed a motion to dismiss on the basis that collateral

estoppel; the facts alleged to support the claim had

already been litigated in the four earlier cases and

appeals. The state district court granted a dismissal

May 12, 1999. On June 7, 1999, Dickerson appealed

to the Kansas Court of Appeals, which affirmed the

dismissal of Dickerson’s case on July 7, 2000.

Dickerson again appealed for review by the Kansas

Supreme Court, which denied his petition for review

on November 7, 2000.

Meanwhile, Dickerson also filed a claim, Case No.

97-2584-EEO, in the United States District Court for

the District of Kansas on December 1, 1997, based

upon 42 U.S.C. §1983, 1985, 1986, 1988 and the 4th,

5th, and 14th Amendments to the United States

Constitution. His basis for jurisdiction was a federal

question and he named in his Complaint the Leavitts,

Bates and CCB as well as most of the individuals

involved in the landlord tenant case in state court,

Leavitt Rentals, Leavenworth County District Court

Judges Hon. Philip Lacey and Hon. David King, the

Leavenworth County Board of County

Commissioners, the Leavenworth County Sheriff and

deputies, and other county employees and private

lawyers and law firms. The lawsuit sought

$37,500,000.00 in damages and claimed that the

defendants conspired to deprive Dickerson of his

property and right to due process.

On February 11, 1998, The federal district court

dismissed Dickerson’s case on two grounds. Under

the Rooker-Feldman Doctrine, the court found that

federal district courts lack subject matter jurisdiction

to hear a case which in substance would be appellate

review of the state judgment in federal court. The

4

court found that “plaintiff's federal claims are

‘inextricably intertwined’ with the state court

judgments entered by the Leavenworth County

District Court.The court also dismissed the claims

specifically against Bates, the Leavitts and CCB for

failure to state a claim under the federal statutes cited.

See Dickerson v. Leavitt Rentals, 995 F.Supp. 1242

(1998).

Dickerson filed a Notice of Appeal to the Tenth

Circuit Court of Appeals later in February 1998. On

June 17, 1998, the Court of Appeals affirmed the

dismissal of Dickerson’s federal lawsuit and found

that the federal district court “did not err in any

respect.” See Dickerson v. Leavitt Rentals, 153 F.3d

726 (10th Cir. 1998). The judge also stated, “Indeed,

we find Mr. Dickerson’s claims and his arguments

patently frivolous. On February 11, 1998, Dickerson

filed a Petition for Writ of Certiorari to the United

States Supreme Court, which was denied on January

19, 1999. See Dickerson v. Leavitt Rentals, 153 F.3d

726 (10th Cir.(Kan. Jun 17, 1998) (Westlaw, No. 98- -

3053), cert.den. 525 U.S. 1110, 119 S.Ct. 882, 142

L.Ed.2d 781, 67 USLW 3458 (1999) (Westlaw No.

98-6899).

On July 23, 2003, Dickerson filed a new federal

action against Bates, the Leavitts, CCB, and Charlene

Brown, formerly a clerk of the Leavenworth County

District Court. He again cites as a basis for

jurisdiction, federal question and states that his cause

of action is pursuant to the Racketeer Influenced and

Corrupt Organizations Act (RICO).18 U.S.C. §§

1961-1968. His Complaint concerns an alleged

pattern of racketeering activity by the Defendants

from August 1996 through October 1999, which

INI Ot A ROT RN ae eye ne

| iia amamatamalaanaalals

5

appears to involve the supersedeas bond, attorney

fees and other matters concerning the enforcement of

the lease terms and recovery of lost rent in the tate

and federal cases previously filed and dismissed.

lil. STATEMENT OF THE QUESTIONS

PRESENTED

1. Whether service on Defendant CCB was and is

improper and invalid since plaintiff has failed to

comply with Rule 4 of the Federal Rules of Civil

Procedure.

2. Is Plaintiff's cause of action barred by the

doctrines of res judicata and collateral estoppel?

3. Is Plaintiff's cause of action barred by the

Rooker-Feldman doctrine?

4. Whether Plaintiff's Complaint states a cause of

action against the Defendants under the Racketeer

Influenced and Corrupt Organizations Act (RICO).18

U.S.C. §§ 1961-1968?

IV. ARGUMENT AND AUTHORITY

A. Plaintiff has failed to comply with Rule 4 of

the Federal Rules of Civil Procedure

and service of process on Defendant CCB was and

is improper and invalid.

The Plaintiff's cause of action should be dismissed

or, alternatively, service of summons upon Defendant

CCB should be quashed. Crow, Clothier & Bates is a

partnership. Rule 4 (h) requires that service of

process on a partnership be affected by “delivering a

copy of the summons and of the complaint to an

officer, a managing or general agent, or to any other

agent authorized by appointment or by law to receive

service of process and, if the agent is one authorized

6

by statute to receive service and the statute so

requires, by also mailing a copy to the defendant.”

RCFP Rule 4(h).

Dickerson or his agent did not deliver:a copy of

the summons and Complaint to a partner or agent

authorized by statue or otherwise authorized to

receive service of process on behalf of Crow, Clothier

& Bates. The summons and complaint were handed

to the receptionist in the law office, Jessica Lambert.

See Affidavit of Jessica Lambert, attached hereto as

Exhibit A.

Plaintiff's Complaint should be dismissed against

Defendant CCB for failure to or, in the alternative,

service of process on CCB should be quashed and set

aside. Defendant CCB questions the court's

jurisdiction over CCB in this matter on the grounds

of insufficiency of service of process.

B. Plaintiff's cause of action barred by the

doctrines of res judicata and collateral

estoppel.

The term "res judicata" refers to a matter adjudged,

decided, and settled by judgment. The doctrine of res

judicata is judicially created, having for its purpose

the repose of controversies once they have been

decided on their merits and the end to litigation. It has

been said by many courts in many cases that the

doctrine is as follows: an existing final judgment

rendered on the merits without fraud or collusion, by

a court of competent jurisdiction, is conclusive of

causes of action and of facts or issues litigated, as to

the parties and their privies, in all other actions before

courts of the same or concurrent jurisdiction. Am.

Jur. 2d, Judgments § 514 et seq.

SD DARPA AE TOON MT og on avon

ED DG, LOE ELLE FLERE LEER IE ORO EL DIR SME

7

The previous cases of Plaintiff and Defendants

cited above bind the parties to this proceeding and are

res judicata, thereby precluding a subsequent judicial

proceeding between the same parties regarding the

matters litigated in the previous actions. Res judicata

bars relitigation not only of matters determined in a

previous adjudication but also matters that Plaintiff

Dickerson could have raised in the state or federal

cases he previously filed. In addition, when the

identical parties are before the court, res judicata

applies to any issues which were previously litigated.

Res judicata must be pleaded as an affirmative

defense, and the failure to so plead constitutes a

waiver. Defendants plead res judicata as an

affirmative defense and as a valid reason to require

dismissal of Plaintiff Dickerson’s claim.

Res judicata is not a mere matter of practice or

procedure inherited from a more technical time, but a

rule of fundamental and substantial justice, of public

policy and private peace, which should be enforced

by the courts to the end that rights, once established

by the final judgment of a court of competent

jurisdiction, must be recognized by those who are

bound by it in every way, wherever the judgment is

entitled to respect.

The doctrine of res judicata is a manifestation of

the recognition that endless litigation leads to

confusion or chaos. The doctrine reflects the refusal

of the law to tolerate a multiplicity of, or needless,

litigation and is based on the premise that the interest

of the proper administration of justice is best served

by limiting parties to one fair trail of an issue or

cause. It rests upon the ground that the party to be

affected, or some other with whom he is in privity,

has litigated, or had an opportunity to litigate, the

8

same matter in a former action in a court of

competent jurisdiction, and should not be permitted

to litigate it again to the harassment and vexation of

his opponent. These tenets are especially true in this

case.

A final judgment on the merits, rendered by a

court of competent jurisdiction, is conclusive as to

the rights of the parties and their privies, and as to

them constitutes an absolute bar to a subsequent

action involving the same claim, demand, and cause

of action, whether the plaintiff fails to recover in the

first action, or is successful in recovering a part of his

claim. See Lawlor v. National Screen Service Co.,

349 U.S. 322, 75 S.Ct. 865 (1955), United States v.

International Bldg. Co., 345 U.S. 978, 73 S.Ct. 1120

(1953). The judgment puts an end to the cause of

action, which cause cannot again be brought into

litigation between the parties upon any ground, or for

any purpose whatever, in the absence of some factor

invalidating the judgment. Commissioner of Internal

Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715

(1948). In such case, the res which is judicata is the

cause of action.

Under collateral estoppel, once a court has decided

an issue of fact or law necessary to its judgment, that

decision acts to preclude relitigation of the issue in a

suit on a different cause of action involving a party to

the first case. See Allen v. McCurry, 449 U.S. 90, 94,

101 S.Ct. 411, 66 L.Ed.2d 308 (1980). The fact that

the Plaintiff has asserted additional claims in this

latest case is of no importance if the new claims are

based on the underlying issue already decided in the

prior case. Matosantos Comm'l Corp. v. Applebee's

Int'l, Inc., 245 F.3d 1203, 1208 (10th Cir.2001).

9

The matters on which Plaintiff Dickerson bases

his Complaint were previously tried and adjudicated

in actions in the state of Kansas in Leavenworth

County District Court in cases No. 9608LC00686,

No. 9608LC00698, No. 9702LC00190,

9612LC01284, and No. 9902CV000686; in the

Kansas Court of Appeals in cases No. 96-77822-A

(consolidated cases No. 9608LC00698, No.

9702LC00190, 9612LC01284), No. 96-79561-A (No.

9608LC00686), and No. 99-83451-AS (No.

9902CV000686). See Leavitt v. Dickerson, 975 P.2d

279 (Kan.App. Dec. 24, 1998) (TABLE, NO. 77,822,

78,686, 78,993), review denied (Mar 16, 1999);

Dickerson v. Leavitt, 4 P.3d 1190 (Kan.App. Jul 07,

2000) (TABLE, NO. 83451), review denied (Nov 07,

2000). Plaintiff's Petitions for Review in the above

named cases to the Kansas Supreme Court were

denied. Final and valid judgments were made and

entered in such actions adverse to Plaintiff Dickerson

and in favor of Defendants Leavitt, Bates and CCB.

Copies of the Kansas Court of Appeals decisions are

attached hereto as Exhibit B, C, and D and are

incorporated by this reference.

The matters on which Plaintiff Dickerson bases

his Complaint were also previously tried and

adjudicated in actions in the United States District

Court for the District of Kansas in case No. 97-2584-

EEO. See Dickerson v. Leavitt Rentals, 995 F.Supp.

1242, 1247 (D.Kan.1998), aff'd. 153 F.3d 726 (10th

Cir.1998), cert. denied, 525 U.S. 1110, 119 S.Ct.

882, 142 L.Ed.2d 781 (1999). The dismissal of

Plaintiff Dickerson’s complaint by the United States

District Court for the District of Kansas was upheld

by the Tenth Circuit Court of Appeals and his petition

for review by the United States Supreme Court was

10

denied. A final and valid judgment was made and

entered in such action adverse to Plaintiff and in

favor of Defendants Leavitt, Bates and CCB.

The opposing litigants in the above named prior

actions were the identical persons who are parties to

the instant action, and the matters litigated in the

prior action were the same matters at issue in the

instant action. The judgment in the prior actions

remain in full force and effect. An exemplified copy

of those judgments are attached hereto, marked

Exhibits E and F and is incorporated by this

reference.

Defendants are entitled to a dismissal of Plaintiffs

Complaint on the grounds of collateral estoppel and

res judicata. The United States Supreme Court has

found that "[w]hen an issue of ultimate fact has once

been determined by a valid and final judgment, that

issue cannot again be litigated between the same

parties in any future lawsuit." Ashe v. Swenson, 397

U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

In the Tenth Circuit, application of collateral estoppel

applies when it is determined that: "(1) the issue

previously decided is identical with the one presented

in the action in question, (2) the prior action has been

finally adjudicated on the merits, (3) the party against

whom the doctrine is invoked was a party, or in

privity with a party, to the prior adjudication, and (4)

the party against whom the doctrine is raised had a

full and fair opportunity to litigate the issue in the

prior action." Dodge v. Cotter Corp., 203 F.3d 1190,

1197 (10th Cir.2000).

Plaintiff s Complaint states that his claims

concern activity by the Defendants in August 10

1996 through October 1999, the period when the

Defendants were involved in the commercial landlord

11

tenant dispute and resulting litigation between

Plaintiff Dickerson and the Defendants that was the

subject matter of the above named cases. See

Plaintiff's Complaint, paragraph 45, page 7. Plaintiff

refers to the previous state cases in his Complaint,

stating that the Defendant’s “‘aided and abetted by

each other” in mailing “an envelope containing a

proposed journal entry in [Case. No.] 9704-LC-474.

See Plaintiff's Complaint, paragraph 66. Plaintiff is

clearly trying to retry the Kansas cases in this new

case. He alludes to “‘a judgment calculation in case

no. 9704-LC-474" in paragraph 67, ‘“‘an envelope with

a motion to the Court of Appeals of the State of

Kansas in Case No. 9704-LC-474 for attorneys fees”

in paragraph 68; “an envelope with a Court of

Appeals brief, case no. 96-77822-A” in paragraph 69;

“an envelope with an addition to the record of a non-

existent lease to the Court of Appeals in paragraph

70.”

Although Plaintiff's pleadings are extremely

vague and difficult to understand, there is no issue

raised in Plaintiff's Complaint that does not concern

the Kansas cases or the federal case previously

adjudicated. Once a court, or in this case several state

and federal courts have decided issues of law and fact

in a dispute between litigants, the doctrines of

collateral estoppel and res judicata preclude a lawsuit

utilizing a different cause of action and again forcing

the defendants or plaintiffs in the previous case to

litigate the issues all over again. See Allen v.

McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d

308 (1980); Baez-Cruz, 140 F.3d at 30; Restatement

(Second) of Judgments § 27 (1980). All the claims

pleaded in Plaintiff's Complaint are based on the

underlying issue decided in the Leavenworth County

‘12

District Court, the landlord tenant dispute between

Dickerson as tenant and the Leavitts as landlord.

Bates and CCB are named as defendants by Plaintiff

in their capacities as attorneys in the landlord tenant

11 and subsequest cases and appeals on that matter.

Plaintiff is clearly trying to use the RICO act to

relitigate matters which were subject to final

judgment in the favor of Defendants in numerous

previous cases at the state and federal level. For

instance, in paragraphs 74 of his Complaint, Plaintiff

states that ‘‘ 9608-LC-698 was a void judgment

without jurisdiction,” an issue that was settled to the

contrary by the Kansas Court of Appeals and upheld

by the Kansas Supreme Court. Plaintiff states in

paragraph 69 of his Complaint that “there was not a

lease” and in paragraph 70 he refers to “‘a non-

existent lease.”’ The landlord-tenant issues were fully

litigated in the Leavenworth County District Court

cases and cannot be relitigated in a RICO case here.

The Plaintiff's Complaint, with close scrutiny,

reveals that the prior cases involved the same

allegations and issues that Plaintiff Dickerson raises

in this case. Because all of the elements necessary to

apply the collateral estoppel doctrine are present, the

dismissal of Plaintiffs Complaint is proper and

necessary.

C. Plaintiff’s cause of action is barred by the

Rooker-Feldman doctrine.

Federal courts are courts of limited jurisdiction.

Dickerson, as plaintiff, bears the burden of

establishing that the federal district court has subject

matter jurisdiction of his claims. See Henry v. Office

of Thrift Supervision, 43 F.3d 507, 512 (10th Cir.

13

1994); Miller v. United States, 710 F.2d 656, 662

(10th Cir.), cert. denied, 464 U.S. 939 (1983).

Plaintiff lost all of the cases filed by Plaintiff and

by Defendants in the state landlord tenant matter. For

the second time, Plaintiff is filing a case in federal

district court trying to relitigate the matters already

decided in state court and affirmed at all of the

Kansas appellate levels. The Rooker-Feldman

doctrine "bars a party losing in state court from

seeking what in substance would be appellate review

of the state judgment in a United States district court,

based on the losing party's claim that the state

judgment itself violates the loser's federal rights."

Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1169

(10th Cir.1998). Thus, Rooker-Feldman bars cases in

federal court that are "inextricably intertwined" with a

prior state court judgment. Jd. Here, Defendants

assert that Plaintiff Dickerson's suit would in

substance constitute appellate review of the state

court judgments entered in favor of Bates, CCB and

the Leavitts prior to Dickerson’s filing of this suit

against the Defendants. See Kenmen Eng'g v. City of

Union, 314 F.3d 468, 473 (10th Cir.2002) (citing

Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16, 44

S.Ct. 149, 68 L.Ed. 362 (1923); Dist. of Columbia Ct.

of App. v. Feldman, 460 U.S. 462, 483 n. 16, 103

S.Ct. 1303, 75 L.Ed.2d 206 (1983)).

In fact, the United States District Court for the

District of Kansas, in Case No. 97-2584-EEO, a

previous case filed by Plaintiff against these named

Defendants, as well as numerous other county and

judicial officials, applied the Rooker-Feldman

doctrine to conclude that subject matter jurisdiction

was not present as to all the defendants, including

Bates, the Leavitts and CCB. The Court stated, “We

14

cannot envision how plaintiff could obtain any relief

based on his federal claim without a factual finding

that the state court judgments entered against plaintiff

were erroneous.” Dickerson v. Leavitt Rentals, 995

F.Supp. 1242, 1247 (D.Kan.1998), aff'd. 153 F.3d

726 (10th Cir.1998), cert. denied, 525 U.S. 1110, 119

S.Ct. 882, 142 L.Ed.2d 781 (1999)(attached hereto as

Exhibit _.

Plaintiff Dickerson’s complaint should be

dismissed on the grounds that subject matter

jurisdiction is not present as to all defendants named

above.

D. Plaintiff's Complaint fails to state a cause of

action against the Defendants under

Racketeer Influenced and Corrupt Organizations

Act (RICO).18 U.S.C. §§ 1961-1968.

A court may dismiss a complaint for failure to

state a claim upon which relief can be granted. See

Fed.R.Civ.P. 12(b)(6). The court need accept as true

only the plaintiff's wellpleaded factual contentions,

not his conclusory allegations. Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991). Complaints drawn

by pro se litigants are held to a less stringent standard

than those drafted by legal counsel. Id. Nevertheless,

a pro se complaint may be dismissed if it clearly fails

to state a legally cognizable claim. Id.

Plaintiff cites Racketeer Influenced and Corrupt

Organizations Act (RICO).18 U.S.C. §§ 1961-1968,

as the grounds for jurisdiction and the basis of his

latest claim against the Defendants in a landlord

tenant matter which is now several years old.

Plaintiff's RICO claims fail to adequately allege a

pattern of racketeering activity. The statute requires at

least two acts of racketeering activity, and, "while |

15

two acts are necessary, they may not be sufficient."

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.

14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Because

the allegations in Plaintiff's Complaint are obscure

and include absolutely no details about the timing and

nature of the predicate acts, it is impossible to tell

from the pleading whether there were two acts, what

those two acts were, or if they were sufficiently

related and continuous as to constitute a pattern.

To successfully state a RICO claim, a plaintiff

must allege four elements: "(1) conduct, (2) of an

enterprise, (3) through a pattern, (4) of racketeering

activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473

U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346

(1985); Robbins v. Wilkie, 300 F.3d 1208, (10th Cir.

2002); BancOklahoma Mortgage Corp. v. Capital

Title Co. Inc., 194 F.3d 1089, 1100 (10th Cir.1999).

Plaintiff may be attempting to plead some sort of

fraud. The Federal Rules of require particularity in

pleading fraud. See, e.g., Farlow v. Peat, Marwick,

Mitchell & Co., 956 F.2d 982, 989-90 (10th

Cir.1992) (predicate acts of mail fraud require

heightened pleading pursuant to Rule 9(b)); Cayman

Exploration Corp. v. United Gas Pipe Line Co., 873

F.2d 1357, 1362 (10th Cir.1989) (Rule 9(b) requires

particularity in pleading the predicate RICO acts of

mail and wire fraud). Plaintiff's pleadings are far

from particular; his Complaint is vague, indefinite,

and very difficult to understand.

While plaintiffs’ pro se pleadings are to be

construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers,

Plaintiff must nonetheless set forth sufficient facts to

support his RICO claim. See Diaz v. Paul J. Kennedy

Law Firm, 289 F.3d 671, 674, RICO Bus.Disp.Guide

16

(10th Cir. 2002); Hall v. Bellmon, 935 F.2d 1106,

1110-12 (10" Cir.1991).

The facts as alleged by plaintiff simply do not

constitute mail fraud. Plaintiff's claim rests on the

allegation the Defendants had something to do with

documents that were sent through the mail. Mail

fraud is not committed, however, simply by sending

false statements through the mail. Instead, the mails

must have been used to further a scheme to defraud

or obtain money or property through false pretenses.

See Dirt Hogs Inc. v. Natural Gas Pipeline Co. of

America, 210 F.3d 389(1 0th Cir 2000);

BancOklahoma Mortgage Corp. v. Capital Title Co.,

194 F.3d 1089, 1102 (10th Cir .1999).

Plaintiff's Complaint does not adequately describe

an "enterprise" with a distinct existence and structure,

as required by RICO. Section 1962(c) provides:

[i]t shall be unlawful for any person employed by or

associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise's affairs

through a pattern of racketeering activity or collection

of unlawful debt. 18 U.S.C. § 1962(c).

An enterprise may be either a legal entity or a

"group of individuals associated in fact although

not a legal entity." 18 U.S.C. § 1961(4). To plead the

existence of such an enterprise, the complaint must

show (1) "an ongoing organization with a decision-

making framework or mechanism for controlling the

group;" (2) with associates that " function as a

continuing unit;" and (3) which is "separate and apart

from the pattern of racketeering activity." United

States v. Sanders, 928 F.2d 940, 943-44 (10th

17

Cir.1991) (applying criteria identified in United

States v.Riccobene, 709 F.2d 214, 223-24 (3d

Cir.1983)). "A RICO enterprise is an ongoing

structure of persons associated through time, joined

in purpose, and organized in a manner amenable to

hierarchical or consensual decision-making.” Dirt

Hogs Inc. v. Natural Gas Pipeline Co. of America,

210 F.3d 389 (!0th Cir. 2000)(citing United States v.

Rogers, 89 F.3d 1326, 1337 (7" Cir.1996)).

Considering the centrality of the enterprise to a RICO

claim, "a nebulous, open-ended description of the

enterprise does not sufficiently identify this essential

element." Dirt Hogs Inc. v. Natural Gas Pipeline Co.

of America, 210 F.3d 389 (!0th Cir. 2000)(citing

Richmond v. Nationwide Cassel L.P., 52 F.3d 640,

645 (7th Cir.1995)). Plaintiff's Complaint fails to

state a RICO claim. For this reason, Defendants

respectfully request the Plaintiff's Complaint be

dismissed for failure to state a claim.

V. CONCLUSION

For all of the preceeding reasons, Defendants

_ Bates, Leavitt, and CCB respectfully request that

Plaintiff Dickerson’s Complaint be dismissed for

failure to state a claim upon which relief can be

granted.

Respectfully Submitted,

s/ Michael Crow

MICHAEL CROW, #07707

MARTHA BURNETT CROW, #15863

Crow, Clothier & Bates

Attorneys at Law

302 Shawnee Street, P.O. Box 707

Leavenworth, KS 66048

(913) 682-0166

— Se

APPENDIX-H

Steve Phillips, #14130

Assistant Attorney General

Memorial Building, 2nd Floor

120 SW Tenth Street

Topeka, KS 66612

(785) 296-2215

phillips@ksag.org

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DURAND DICKERSON,

Plaintiff,

V. Case No. 03-2337-JWL

G. RONALD BATES, JR.; CHARLENE

BROWN; PAUL LEAVITT, DEBORAH

LEAVITT; CROW, CLOTHIER &

BATES, a Kansas Corporation,

Defendants.

MEMORANDUM IN SUPPORT OF

DEFENDANT BROWN’S MOTION TO

DISMISS

In accordance with D. Kan. 7.1(a) and D.

Kan. 7.6, Defendant Charlene Brown, former

Clerk of the District Court, Leavenworth County,

Kansas, by and through counsel, Steve Phillips,

Assistant Attorney General for the State of

Kansas, submits this Memorandum in Support of

Defendant’s Motion to Dismiss filed herewith.

For reasons set forth herein, Defendant

Brown respectfully requests that his Motion to

Dismiss be granted by the Court, and that she

receive such other and further relief as the Court

deems just and proper.

————

2

NATURE OF THE MATTER BEFORE THE

COURT

Plaintiff Durand Dickerson, proceeding pro

se, seeks damages pursuant to the

Racketeering Influenced and Corrupt

Organizations Act 10 U.S.C. §§1861-1868.

Defendant Charlene Brown is the former Clerk

of the District Court, Leavenworth County

Kansas. The other defendants are Paul and

Deborah Leavitt, successful plaintiffs in two state |

court actions against Dickerson; the Leavitt's

attorney, G. Ronald Bates, and Mr. Bates law

firm, Crow, Clothier & Bates. The state court

judgments and related garnishment orders that

Dickerson complains of were the subject of

several unsuccessful appeals and attempts at

collateral attack by Dickerson, as noted by the

other defendants in this matter in their motion to

dismiss.

Defendant Brown must also be dismissed for

the following reasons: all her actions were taken

as Court Clerk and she is entitled to Absolute

Judicial Immunity; the judgments and

garnishment orders are valid orders from a state

court proceeding and cannot be reviewed by this

court pursuant to the Rooker-Feldman doctrine; 1

Dickerson fails to plead facts upon which relief

can be granted under RICO; and to the extent

Dickerson is suing Defendant Brown in her 1

Official capacity, his suit is barred by the 11m

Amendment. Dickerson is also barred by the

doctrine of collateral estoppel.

3

STATEMENT OF FACTS

1. Plaintiff Durand Dickerson proceeds pro

se. (See Complaint.)

2. Defendant Charlene Brown was, during

the time period covered by Dickerson’s

Complaint, Clerk of the District Court,

Leavenworth County, Kansas. (Complaint, p 4, J

18.)

3. Dickerson seeks damages under the

Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. §§ 1861-1868. All

allegations and counts relate to two state court

proceedings against him, 9704-LC-474 and

9608-LC-698 in connection with a successful

eviction and judgment against him. (See

Complaint, Counts 1, p 11 though Count 8, p

23.) Dickerson refers to the judgments and

garnishment orders entered in these cases as

“void” throughout his Complaint without referring

to or attaching any court orders showing they

are void.

4. Dickerson sought to appeal 9704-LC-474

in Kansas Court of Appeals case No. 97-79561.

The Kansas Court of Appeals dismissed his

appeal. Attached as

Exhibit A to this Memorandum is the Kansas

Court of Appeals mandate and opinicn in

case No. 97-79561.

9. Dickerson sought to appeal 9608-LC-968

in Kansas Court of Appeals case No. 97-77882.

The Kansas Court of Appeals dismissed his

appeal. Attached as Exhibit B to this

Memorandum is the Kansas Court of Appeals

mandate and opinion in Case No. 97-79561.

4

6. Dickerson apparently sought to collaterally

attack both Cases 9608-LC-698 and 9704-LC-

474 in Kansas Court of Appeals Case No. 99-

84356-A. The Kansas Court of Appeals .

dismissed the appeal. Attached as Exhibit C is

the entire appellate record in Case No. 99-

83456-A.

7. Dickerson also attempted to relitigate

cases 9608-LC-698 and 9704-LC-474 in yet

another appeal. The Kansas Court of Appeals

affirmed the trial court in Case No. 83,451,

Exhibit D.

8. Dickerson also filed a case in federal court

also attempting to collaterally attack the state

court orders. Two of the defendants were

Leavenworth County District Court Judges Philip

Lacy and David King. The Court dismissed, on

the grounds that it lacked subject matter

jurisdiction under the Rooker-Feldman doctrine,

and specifically as to the judges, that the judges

were absolutely immune from suit. Dickerson v.

Leavitt Rentals, 995 F. Supp. 1242 (D. Kan.

1998). The Court of Appeals Affirmed in

Dickerson v. Leavitt Rentals, No. 98-3053, 1998

WL 380923 (10m Cir. June 17, 1998).

Cert. was denied at 525 U.S. 110 (1999).

QUESTIONS PRESENTED

1. Defendant Brown is Entitled to Absolute

Judicial Immunity.

2. Suit is Barred by the Rooker-Feldman

Doctrine.

3. Dickerson Fails to State a Valid RICO

Cause of Action.

5

4.Defendant Brown is Entitied to 11m

Amendment Immunity.

5. Collateral Estoppel Bars Dickerson’s Suit

Against Defendant Brown.

ARGUMENTS AND AUTHORITIES

Standard for Motions to Dismiss

The standard for ruling on a motion to

dismiss for failure to state a RICO claim based

on fraud pursuant to beth Fed. R. Civ. P.1 2(b)(6)

and Fed. R. Civ. P. (b) has been stated as

follows:

In reviewing the motion to dismiss, this Court

must accept the factual allegations of the

complaint as true and must view the complaint in

the light most favorable to Plaintiff. GE

Investment Private Placement Partners v.

Parker, 247 F.3d 543, 548 (4th Cir.2001).

However, a RICO claim based on fraud is

Subject to the requirement, imposed by Rule

9(b), that each element of the RICO violation

and its predicate acts of racketeering must be

pled with particularity, a requirement justified by

the "threat of treble damages and injury to

reputation." Cayman Exploration Corp. v. United

Gas Pipe Line, 873 F.2d 1357, 1362 (10th

Cir.1989). Martinez v. Martinez, 207 F. Supp. 2d

1303 (D. N.M. May 08, 2002), affOd in part and

vacated in part (on other, unrelated grounds) 62

Fed. Appx. 309 (No. 02-2182, 02-2188 10th Cir.

Apr. 21 2003).

The standard for ruling on a motion to

dismiss for lack of subject matter jurisdiction

6

pursuant to Fed. R. Civ. P. 12(b)(1) has been

stated as follows:

When defendants bring a Rule 12(b)(1)

motion to dismiss for lack of subject matter

jurisdiction, the plaintiff must carry the burden of

proving jurisdiction. Richmond, Fredericksburg &

Potomac R.R. Co. v. United States, 945 F.2d

765, 768 (4th Cir. 1991), cert. denied, 503 U.S.

984 (1992); In deciding a Rule 12(b)(1) motion,

the court may consider evidence outside the

pleadings without converting the proceeding to

one for summary judgment. Cizek v. United

States, 953 F.2d 1232, 1233 (10" Cir. 1992);

Jensen v. Johnson County Youth Baseball

League, 838 F. Supp. 1437, 1440 (D. Kan.

1993). For purposes of deciding a 12(b)(1)

motion, the court accepts well-pleaded material

allegations in the complaint as true and

construes them to favor the plaintiff. See United

States v. Ritchie, 15 F.3d 592, 598 (6th Cir.),

cert. denied, 115 S. Ct. 188 (1994)... ..

Mounkes v. Conklin, 922 F. Supp. 1501, 1505-

06 (D. Kan. 1996). In any event, conclusory

allegations need not be taken as true. Swanson

v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). Nor

should Dickerson’s pro se status allow him to

avoid rules of pleading. Although a plaintiff may

have chosen to proceed pro se, “it is not the

proper function of the district court to assume

the role of advocate for the pro se litigant.”

DeYoung v. State of Kansas, 890 F. Supp. 949,

951 (D. Kan. 1995), affd, 69 F.3d 547 (10m Cir.

1995), cert. denied, 517 U.S. 1236 (1996) (citing

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991)). The Court is not required to

e |

7

“supplyadditional factual allegations to round out

a plaintiff's complaint or construct a legal theory

on plaintiff's behalf.” Whitney v. State of New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir.

1997) (citing Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991)).

1. Defendant Brown is Entitled to Absolute

Judicial Immunity.

All of Dickerson’s claims against Defendant

Brown relate to actions she took in accordance

with her duties as District Court Clerk, for which

she is entitled to absolute judicial immunity. In

Dickerson’s Complaint, page 3, paragraph 12 he

states:

Defendant Charlene Brown, as clerk of the

District Court for Leavenworth Kansas, files

papers on behalf of persons throughout the

United States, especially suits on behalf of

military personnel.

On page 4 of his Complaint, paragraph 18 he

states:

Charlene Brown, court clerk, (hereinafter

“Clerk”) is a clerk of the Leavenworth County

District Court, and was during the period

covered by this complaint, and is a citizen of

the State of Kansas.

In each of his allegations against Defendant

Brown, Dickerson alleges she took some action

as court clerk in the Leavenworth County District

Court cases. As noted in the Statement of Facts,

both cases to which Dickerson refers were valid,

enforceable judgments and the garnishment

8

orders were valid enforceable orders in 9608-

LC-698 and 9704-LC-474, none which were not

reversed on appeal or pursuant to collateral

attack.

The 10 Circuit has held that court personnel

performing functions integral to the judicial

process are entitled to absolute judicial

immunity. In Whitesel v. Sengenberger,

222 F.3d 861, 867 (10nCir. 2000), in holding

pretrial service officers absolutely

immune, the Court said,

“Judges are absolutely immune from civil liability

for judicial acts, unless committed in the clear

absence of all jurisdiction." Henriksen v. Bentley,

644 F.2d 852, 855 (10th Cir.1981) (citing Stump

v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55

L.Ed.2d 331 (1978)). A judge does not act in the

clear absence of all jurisdiction even if "the

action he took was in error, was done

maliciously, or was in excess of his authority.”

Stump, 435 U.S. at 356-57, 98 S.Ct. 1099.

Moreover, "[a] judge is absolutely immune from

liability for his judicial acts even if his exercise of

authority is flawed by the commission of grave

procedural errors.” Id. at 359, 98 S.Ct. 1099.

‘[!]mmunity is justified and defined by the

functions it protects and serves, not by the

person to whom it attaches.'" Valdez v. City and

County of Denver, 878 F.2d 1285, 1287 (10th

Cir.1989) (quoting Forrester v. White, 484 U.S.

219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555

(1988)). Consequently, "[i]mmunity which

derives from judicial immunity may extend to

aa ea maa ae ea a il nae ey:

9

persons other than a judge where performance

of judiciai acts or activity as an official aid of the

judge is involved.” Henriksen, 644 F.2d at 855.

Thus, absolute judicial immunity has been

extended to non-judicial officers where "their

duties had an integral relationship with the

judicial process.” Eades v. Sterlinske, 810 F.2d

723, 726 (7th Cir.1987).

In Wiggins v. New Mexico State Supreme Court

Clerk, 664 F.2d 812 (10nCir. 1981), the Court

said in holding a state court clerk absolutely

immune:

[W]e fully agree with this language contained in

Blouin v. Dembitz, 367 F.Supp. 415

(S.D.N.Y.1973). affd, 489 F.2d 488 (2d Cir.

1973): Statutes and ruling case law protecting

state judges in the discharge of their functions

may not be circumvented or vitiated, by

pretending to maintain this suit also against their

"clerks, servants and agents" for no court can

discharge its judicial duties without the aid of

clerks, servants and agents.

See also Lundah v. Zimmerman, 296 F.3d 936,

939 (10»Cir. 2002).

In Dopp v. Loring, 02-5017, 2002 WL

31839852 (10m Cir. Dec. 19, 2002), the court

considered a case very similar to this one. A pro

se plaintiff brought a RICO suit against a

number of persons including a state court clerk

for seizure of the plaintiffs property pursuant to

a valid state-issued search warrant. The 10

Circuit upheld the district court's dismissal of the

10

state court clerks along with other judicial

defendants on the grounds of absolute judicial

immunity (as well as the Rooker-Feldman

doctrine.) Quite clearly, the doctrine of absolute

judicial immunity applies to RICO suits.

Because Defendant Brown was a court clerk

and because all acts alleged are actions she

took as court clerk in furtherance of the judicial

process, she should be dismissed from this suit.

2. Suit is Barred by the Rooker-Feldman

Doctrine.

Dickerson is attempting to relitigate state

court cases in which he was the losing party.

Using a federal cause of action as a means of

seeking review of state court 1: The Rooker-

Feldman Doctrine is the common name to the

rule stating that federal district courts have no

jurisdiction to review final judgments of a state

court. The rule stems from the holdings in

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476 (1983), and Rooker

v. Fidelity Trust Co. , 263 U.S. 413, 415-16

(1923). See Mounkes v. Conklin, 922 F. Supp.

1501, 1508-10 (D. Kan. 1996)

(discussing the rule and citing numerous cases).

decisions is barred by the Rooker-Feldman

Doctrine.: Under that Doctrine, federal

district courts simply do not have jurisdiction to

review decisions of a state court. Such review is

solely within the jurisdiction of the United States

Supreme Court. See 28 U.S.C. § 1257; see

also, Facio v. Jones, 929 F.2d 541, 543 (10th

Cir. 1991).

11

The Rooker-Fe!dman Doctrine also bars

federal district court review of any claim

“inextricably intertwined” with claims decided by

a State court. Mounkes, 922 F. Supp. at 1509.

(“[Rooker-Feldman Doctrine] applies to attempts

not only to review directly a state court decision

but also to review indirectly a state court

decision when the federal claim is ‘inextricably

intertwined’ with the merits of the state court’s

decision.”)

Dickerson’s Complaint calls upon the court to

find that the state court judgments against him

were invalid. In his previous federal case,

Dickerson lost on the grounds of Rooker-

Feldman, with the court saying, “We cannot

envision how plaintiff could obtain any relief

based on his federal claim without a factual

finding that the state court judgments entered

against plaintiff were erroneous.” Dickerson 995

F. Supp. at 1247.

The 10 Circuit has applied Rooker-Feldman

to RICO suits in which relief would have implied

the invalidity of state court actions. In Dopp,

2002 WL 31839852 at 2 (discussed above) the

court said in upholding the dismissal of two state

court clerks:

To the extent plaintiff alleged illegal activity

under RICO for actions taken pursuant to rulings

of a state court, the district court correctly

concluded that its jurisdiction was barred by the

Rooker-Feldman doctrine.

There is no judgment that this Court could

render on this Complaint that would not require

12

an impermissible review of the earlier state court

decisions. See Feldman, 460 U.S. at 483 n.4.

Therefore, the Complaint must be dismissed for

lack of subject matter jurisdiction. See Van

Sickle v. Holloway, 791 F.2d at 1436 (dismissing

pro se action against state judges based upon

Rooker-Feldman doctrine); Anderson v. State

of Colo., 793 F.2d 262, 263-264 (10th Cir.

1986); Razatos v. Colorado Supreme Court,

746 F.2d 1429, 1432 (10th Cir. 1984), cert.

denied 471 U.S. 1016 (1985).

Dickerson’s Complaint should be dismissed

on the grounds that subject matter jurisdiction is

not present against Defendant Brown.

3. Dickerson Fails to State a Valid RICO

Cause of Action.

Dickerson fails to state a cause of action

under RICO, 10 U.S.C. §§ 1961-1968.

Dickerson’s RICO claim is one based upon what

Dickerson believes to be fraud. The word

“fraud,” is liberally sprinkled through his :

Complaint. Yet Dickerson fails by a wide mark to

meet the pleading requirements for a RICO

fraud claim.

A civil RICO claim is "an unusually potent

weapon--the litigation equivalent of a

thermonuclear device." Katzman v. Victoria's

Secret Catalogue, 167 F.R.D. 649, 655

(S.D.N.Y.1996). For this reason, there is a

strong temptation for plaintiffs to raise a

RICO claim, even when the claim is

obviously frivolous.

13

Martinez, 207 F. Supp. 2d at 1308.

Courts have required plaintiffs bringing RICO

claims based on fraud to comply with Rule 9(b)

so that

each element of the RICO violation and its

predicate acts of racketeering must be pled

with particularity, a requirement justified by

the “threat of treble damages and injury to

reputation.” Caman Exploration Corp. v.

United Gas Pipe Line, 874 F.2d 1357, 1462

(10t Cir. 1989).

Id at 1305.

While Dickerson’s Complaint is vague and

meandering, RICO is technical and specific. To

survive a Rule 12(b)(6) motion to dismiss, a

RICO plaintiff must adequately allege (1)

conduct (2) of an enterprise (3) through a

pattern (4) of racketeering. /d.

Dickerson fails to state an adequate enterprise.

To state a civil Rico claim, it is not sufficient

to allege that a group of individuals or business

committed predicate acts of racketeering.

[Citation omitted.] The plaintiff must also identify

the criminal enterprise, a separate entity, on

whose behalf the individuals acted. This

enterprise must have an existence apart from

the pattern of racketeering, must be an ongoing

organization, and must function as a continuing

unit as shown by a hierarchal or consensual

decision-making structure. [Citations omitted.]

The purpose of this requirement is to satisfy

~ Congressional intent in enacting RICO; RICO

14

was not intended to simply create another form

of conspiracy, but was aimed at preventing

criminal organizations from taking over

legitimate businesses or engaging in a — of

racketeering acts.

7. at 1306.

Dickerson identifies no “enterprise” other

than the defendants. He in fact specifically

identifies the enterprise as the defendants.

(Complaint p. 8 J 47.) This is wholly inadequate

to plead an enterprise.

Dickerson identifies no long term pattern. In

Martinez, the Court held “that the mere fact that

the alleged fraud occurred over a four-year

period is not sufficient to state an actionable

pattern of racketeering. “/d. at 1307. While the

allegations by Dickerson spread over at least the

years 1996 to 1999, they are really one closely

related series of acts—a civil case against

Dickerson and entry and enforcement of

judgment against him.

The 10 Circuit has described what is

necessary to establish a pattern of racketeering

in Resolution Trust Corp. v. Stone, 998 F.2d

1534, 1543 (10mCir. 1993):

The Supreme Court has elaborated on RICO's

limited definition of the "pattern" element.

Although proof of at least two predicate .

racketeering acts are necessary to prove a

pattern, that may not be sufficient. H.J. Inc.

v. Northwestern Bell Tel. Co., 492 U.S. 229,

236-37, 109 S.Ct. 2893, 2899, 106 L.Ed.2d 195

(1989) (citing Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285

n. 14, 87 L.Ed.2d 346 (1985)). The Supreme

15

Court has concluded that Congress intended

that the pattern element “requires the showing of

a relationship between the bredicates, ... and the

threat of continuing activit, -that is, "continuity

plus relationship." H.J. Inc., 492 U.S. at 239, 109

S.Ct. at 2900 (emphasis added) (citations and

quotations omitted). Only the continuity prong of

the pattern element is at issue in this case.

"Continuity" is both a closed and open-ended

concept: closed-ended referring to a closed

period of repeated conduct and open-ended

referring to conduct that by its nature projects

into the future with a threat of repetition. See id.

at 241, 109 S.Ct. at 2902: Phelps v. Wichita

Eagle-Beacon, 886 F.2d 1262, 1273 (10"

Cir.1989). A party alleging a RICO violation may

demonstrate continuity over a closed period by

proving a series of related predicates extending

over a substantial period of time. H.J. Inc., 492

U.S. at 242, 109 S.Ct. at 2902: Phelps, 886 F.2d

at 1273. Predicate acts extending over a few

weeks or months are insufficient to show closed-

ended continuity. H.J. Inc., 492 U.S. at 242, 109

S.Ct. at 2902. Open-ended continuity depends

upon the facts of each case, and may be

established by showing that the predicates

themselves involve a distinct threat of long-term

racketeering activity, either implicit or explicit, or

that the predicates are a regular way of

conducting the defendant's ongoing legitimate

business or the RICO enterprise. Id. at 242-43,

109 S.Ct. at 2902.

- Dickerson pleads no facts establishing an

Open-ended pattern. As to a closedend pattern,

because the pattern is really just the one act of

obtaining and enforcing a judgment.

16

Dickerson also fails to plead facts

establishing any true predicate acts. While

Dickerson cites numerous criminal statutes, like

the plaintiff in Martinez, he simply fails to state

any facts that would constitute the crimes he

alleges. It is impossible to understand, for

instance, how mailing a journal entry could

constitute mail fraud as he alleges on page 12 of

his Complaint.

Dickerson also fails to allege any coherent

connection to interstate commerce. Each

prohibited act under 18 U.S.C. § 1962 must

affect interstate commerce. While Dickerson

makes general allegations about Interstate

commerce on page 3 of his Complaint, his

allegations have nothing to do with the acts he

alleges as the basis for the alleged RICO

violations. All acts constituting the RICO

violations seem to have occurred entirely within

Kansas.

Dickerson fails to state any valid claims for

RICO violations, and Defendant Brown requests

his Complaint be dismissed for failure to state a

claim.

4.Defendant Brown is Entitled to 11m |

Amendment Immunity. ?

While it is difficult to tell, Dickerson may be ,

suing Defendant Brown in her official capacity

which is barred by 11% Amendment Immunity. In i

his Complaint he includes the following

statements:

Defe::dant Charlene Brown, as clerk of the

District Court for the County of Leavenworth,

Kansas, files papers on behalf of persons

i ee

17

throughout the United States, especially suits

on behalf of military personnel.

Complaint, p 3 J 12.

Charlene Brown, court clerk, (hereinafter

“CLERK’”) is clerk of the Leavenworth County

District Court, and was during the period

covered by this complaint, and is a citizen of

the State of Kansas.

Complaint, p 4 918.

Dickerson then goes on to repeatedly refer to

her as “CLERK” throughout the Complaint.

The Eleventh Amendment bars suit for

damages in federal court against a State, its

agencies or officials. E.g., Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 72, 73, 76

(1996); Edelman v. Jordan, 415 U.S. 651, 663

(1974); Sturdevant v. Paulsen, 218 F.3d 1160,

1164 (10 Cir. 2000).

5. Collateral Estoppel Bars Dickerson’s Suit

Against Defendant Brown.

Dickerson is collaterally estopped to bring this

action. Collateral estoppel applies when it is

determined that:

(1) the issue previously decided is identical

with the one presented in the action in

question, (2) the prior action has been finally

adjudicated on the merits, (3) the party

against whom the doctrine is invoked was a

party, or in privity with a party, to the prior

adjudication, and (4) the party against whom

the doctrine is raised had a full and fair

opportunity to litigate the issue in the prior

action.

18

Dodge v. Cotter Corp., 203 F.3d 1190, 1197

(10th Cir.2000).

All of Dickerson’s RICO claims are an |

attempt to relitigate the state cases to which he |

is a party concerning his landlord tenant dispute |

with Defendant Leavitts. Dickerson also |

attempted to collaterally attack those court

decisions in his federal court case, Dickerson v.

Leavitt Rentals, 995 F. Supp. 1242 (D. Kan.

1998). He again raises the same basic

underlying issues. As to Defendant Brown, he is

collaterally estopped from doing so.

CONCLUSION

Wherefore, for all of the reasons stated herein,

Charlene Brown, former Clerk of the District

Court of Leavenworth County, Kansas, requests

that this action against her be dismissed with

prejudice and that she be granted such other

and further relief as the Court deems just and

proper.

Respectfully submitted,

OFFICE OF THE ATTORNEY GENERAL

PHILL KLINE

/S/ Steve Phillips

Steve Phillips, #14130

Assistant Attorney General

Office of the Attorney General

Memorial Hall, 2nd Floor

120 S.W. 10th Avenue

Topeka, KS 66612-1597 |

(785)296-2215 ;

Attorney for Charlene Brown

| q

APPENDIX-I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DURAND DICKERSON

Plaintiff

v. CASE NO. 03-2337-JWL

G. RONALD BATES JR.; CHARLENE

BROWN, PAUL LEAVITT, DEBORAH

LEAVITT; CROW, CLOTHIER & BATES

a Kansas Corporation,

Defendants.

DICKERSON RESPONSE TO BATES, LEAVITT’S

CROW, CLOTHIER & BATES MOTION TO DISMISS

COME NOW, Durand Dickerson, plaintiff and files this

response to G. Ronald Bates Jr., Paul and Deborah Leavitt,

and Crow, Clothier & Bates Motion to Dismiss.

MEMORANDUM IN SUPPORT

I

NATURE OF THE MATTER BEFORE THE COURT

Dickerson filed a 25 page 1 Amended Complaini under

U.S.C. 1961 et seq. setting forth violations of 18 U.S.C.

1001; 18 U.S.C. 1341, 1346; 18 U.S.C. 371; 18 U.S.C. 2(a)

and (b); 18 U.S.C. 1956 and 1957; K.S.A. 33-106; K.S.A.

21-3705; K.S.A. 21-3711; K.S.A. 21-3701(a(1)(2)(3) and

(b)(2) for violation for federal and State of Kausas Criminal

Statues.

2

Il

STATEMENT OF FACTS

Dickerson’s complaint page 7 sets forth the pattern of

racketeering activity with particularity that took place

between August 1996 to October 1999.

Dickerson’s complaint page 8 sets forth that the enterprise

is an association-in-fact made up of the defendants.

Dickerson’s complaint pages 11 to 15 sets forth in 18

numbered paragraphs with particularity the mail fraud counts

under 18 U.S.C. 1961 R.I.C.O. and 18 U.S.C. 1341.

Dickerson’s complaint pages 15 to 17 sets forth in 14

numbered paragraphs with particularity the conspiracy of the

defendants, pursuant to 18 U.S.C. 371.

Dickerson’s complaint page 17 sets forth in 6 numbered

paragraphs the conspiracy pursuant to 18 U.S.C. 1962(d)

with particularity.

Dickerson’s complaint pages 18 and 19 sets forth in 5

numbered paragraphs with particularity the money launder-

ing acts pursuant to 18 U.S.C. 1957 and 1957.

Dickerson’s complaint pages 19 and 20 set forth with

particularity in 11 numbered paragraphs the false statement

made pursuant to 18 U.S.C. 1001.

Dickexson’s complaint pages 20 and 21 sets forth with

particularity in 10 numbered paragraph the deprivation of the

intangible right to honest government services pursuant to 18

U.S.C. 1346.

Dickerson’s complaint pages 22 to 24 sets forth with

particularity in 19 numbered paragraphs the State of Kansas

Criminal Code Violation, pursuant to K.S.A. 21-3711;

K.S.A. 33-101 et seq.

I

STATEMENT OF THE QUESTIONS PRESENTED

Te Re eT eae

A). SERVICE OF DEFENDANT CROW, CLOTHIER &

BATES WAS IMPROPER

B). DICKERSON’S CAUSES OF ACTION ARE NOT

BARRED BY THE DOCTRINES OF RES-JUDICATA

OR COLLATERAL ESTOPPEL

C). DICKERSON’S CAUSES OF ACTION ARE NOT

BARRED BY THE ROOKER-FELDMAN DOCTRINE

D). DICKERSON COMPLAINT STATES CAUSES OF

ACTION AGAINST THE DEFENDANTS UNDER

18 U.S.C. 1961 et seq.

(A)

SERVICES ON DEFENDANT CROW, CLOTHIER

& BATES WAS IMPROPER

Dickerson admits that his service on the defendants Crow,

Clothier & Bates was improperly done.

Pursuant to this circuit’s case law! if service is defective,

as admitted by Dickerson and it is curable, the Court will

quash the service with leave to re-serve.

Therefore, Dickerson seeks on Order from this Court

quashing the service on defendants Crow, Clothier & Bates,

with leave granted to re-serve.

(B)

DICKERSON’S CAUSES OF ACTION ARE NOT

BARRED BY THE DOCTRINES OF RES-

JUDICATA OR COLLATERAL ESTOPPEL

Res-judicata was judicially created for the purpose of an

end to litigation once controversies have been decided on

their merits.

Dickerson’s Statement of Facts(II) sets forth with

particularity pursuant to Federal Rules of Civil Procedures

9(b) the criminal acts by the defendants that were never a

' Gregory v. United States, 942 F2d, 1498, 1500 (10" Cir. 1991)

4

part of any prior State of Kansas or federal court case. All

the listed actions by the defendants were civil cases.

In the prior civil cases there were no decision of mail

fraud 18 U.S.C. 1341; intangible nght to honest government

service 18 U.S.C. 1346; false statement 18 U.S.C. 1001;

money laundering 18 U.S.C. 1956 and 1957; conspiracy 18

U.S.C. 371; aiding and abetting 18 U.S.C. 2; or any State of

Kansas criminal violations K.S.A. 33-101 et seq., K.S.A. 21-

3700 et seq.

The defendants cannot plead res-judicata on any cause of

action in Dickerson’s 1* Amended Complaint.

The defendants beginning on page 5 and continuing to

page 7 sets forth a rambling argument on res-judicata, and

then never cites (1) one case in Kansas state court or federal

court that tried the criminal issues raised in Dickerson’s 1*

Amended Complaint.

The failure of the defendants to cite any case or record of

such res-judicata as to a final judgment, on the merits of the

criminal charges in Dickerson’s 1 Amended Complaint,

pursuant to their Exhibits B through F violates Local Rule

7.6 and Federal Rules of Civil Procedure 12(b).

Under collateral estoppel a court has decided an issue of

fact or law necessary to it’s judgment, that decision

precludes re-litigation of the issues.

In Dickerson’s 1** Amended Complaint there are no

issues based upon any underlying issues decided in any prior

case as set forth in the defendant’s Exhibits B through F.

The defendants make the bald unsupported statement on

pages 7 and 8 that the matters on which plaintiff Dickerson

bases his complaint were previously tried and adjudicated,

and then-_lists the State of Kansas case numbers and the lone

federal case number without one cite to one exhibit that was

adjudicated as to the criminal statues set forth by Dickerson.

The reasons is simple, there is not one statement as to 18

U.S.C. 371; 18 U.S.C. 1001; 18 U.S.C. 1341; 18

U.S.C.1346; 18 U.S.C. 1957 & 1957, or K.S.A. 33-101

eee Mea OE Ee yee ee ey eR nee eg ee ee | ey eee

5

et seq. K.S.A. 21-3701 et seg. in any of the Exhibits B

through F.

However, since the defendants failed to point to the

record for support of their argument, the standard of this

Circuit is, to not look for it.

Further the defendants makes a totally false statement on

page 8 that the identical persons are parties of the instant

action. defendants Exhibits B through F nowhere lists

Charlene Brown, thereby proof on their own record of this

reckless statement.

The defendants would ask this Court to assume since they

prevailed in a civil case, that criminal laws violated after that

is barred by res-judicata and collateral estoppel.

This Circuits case laws is straight-forward;

A) IS THE ISSUE PREVIOUSLY DECIDED INDEN-

TICAL WITH THE ONE PRESENTED IN THIS

ACTION?

Certainly not, there is no criminal complaints in any of the

prior actions.

B) THE PRIOR ACTION WAS FINALLY

ADJUDICATED ON THE MERITS.

All the prior civil action were adjudicated on the merits.

C) THE PARTY OR PARTIES WERE PARTIES TO

THE PRIOR ADJUDICATION.

All the defendants in this cause of action were not parties in

any of the prior cases. Charlene Brown was never a party in

the prior cases.

D) THE PARTY HAS A FULL AND FAIR OPPOR-

TUNITY TO LITIGATE THE ISSUE IN THE

PRIOR ACTIONS. ie

The criminal violations all took place after the prior action,

and Dickerson was unable to litigate the issues.?

The defendants on page 9 of their motion allude to the

* Dodge v. Cotter Corp. 203 F3d 1190. 1197 (10" Cir. 2000)

6

fact that since there were civil cases they were involved in

with Dickerson during the period of August 1996 through

October 1999 that is Court should overlook their criminal

violations. sia

Dickerson as set forth in his Statement of Facts, and in his

“complaint page 22, paragraph 126, 127 129 and 131 with

straight forward language of pay, date, time and place with

the necessary elements of criminal fraud. Dickerson does

- not see how the defendants can say that “this is extremely

vague and difficult to understand”.

Dickerson set forth in his complaint page 16 paragraphs

79, 80, 81,82, 83, 84, 85, 86, 87, and 88 with straight for-

ward language of the elements of mail fraud, a criminal act.

The defendants cite no cases in this circuit or anywhere

else, that receiving judgment in a civil cause of action

absolves them of criminal liability. Dickerson would only

point to World Com.and Bernard Ebbers for this fact.

7

(C)

ROOKER-FELDMAN DOCTRINE

The Rooker-Feldman Doctrine takes it name from two(2)

cases.’ Under this doctrine a federal district court does not

have subject matter jurisdiction to hear a direct appeal from

a final judgment of a state court. The United States Supreme

Court vested with jurisdiction to hear such an appeal.

Here Dickerson has not done a direct appeal based upon a

final judgment of a state court. This Court has jurisdiction

over the subject matter pursuant to 18 U.S.C. 1961 et seg.

R.I.C.O., see Dickerson’s 1* Amended Complaint, (I)

Jurisdiction page 1.

Furthermore a R.I.C.O. action is not a direct appeal of a

state court judgment but is independent criminal jurisdiction

over crimes committed.

The Supreme Court has applied Rooker-Feldman to hold

that a federal district court is without subject matter jurisdic-

tion only in two (2) cases from which the doctrine takes its

name.

In Rooker the plaintiff had lost in state court. The legal

wrong alleged was that the state court had made errors in

deciding the constitutional claims, rather than the defendant

acted illegally. Dickerson alleges in his complaint, pages

11-24 how the defendants acted illegally.

In essence Rooker held that when a losing plaintiff in state

court brings a suit in Federal District Court asserting legal

wrongs, allegedly erroneous legal rulings of the state court,

and seeks to vacate or set aside the judgment of the state

court, the federal suit is a forbidden de facto appeal. Here

Dickerson does not challenge to vacate or set aside any judg-

ment in any of the listed state court actions previously decid-

’Rooker v. Fidelity Trust Co. 263 US 413 (1923)

Dist. Of Columbia Court of Appeals v. Feldman 460 US 462 (1983)

8

ed. Dickerson charges violations of the federal criminal

statues under R.I.C.O. of action taken though an association-

in-fact enterprise, see-Dickerson’s 1* Amended Complaint

page 12 paragraphs 64-67.

In Feldman, two plaintiffs were graduates of an unaccredit-

ed law school who petitioned the District of Columbia district

court for waivers that prevented them from taken the bar

examination. The plaintiffs has previously petitioned the

local courts for waivers based upon the 5" Amendment and

anti trust laws, and were denied.

The Supreme Court noted that the District of Columbia

local court had acted both judicially and legislatively. In |

applying the rule to deny the waivers it acted judicially, @

479. In promulgating its rule, on the other hand it acted

legislatively, @ 485 and 486.

The Supreme Court divided its analysis into two parts.

First the Court held that part of the plaintiffs’ suit was a for-

bidden de-facto appeal of the judicial decision of the D.C.

court. Here Dickerson is not appealing any Kansas State

court decisions.

Second the Supreme Court permitted the plaintiff’ s

challenge to the local court’s legislature acts of promulgating

its rule regulating the bar examination @487. This was a

challenge to the validity of the rule rather than a challenge to

the application of the rule.

The Supreme Courts’ answer was straightforward. [I]f the

constitutional claims presented to the United States District

Court are ‘inextricably intertwined’ withe the states court

denial in a judicial proceeding, then the District Court is in

essence being called upon to review the state court decision.

Here Dickerson raised only federal criminal and state

criminal violations that was not raised in the state court

proceedings. Therefore the issues raised in Dickerson’s

R.I.C.O. complaint are not ‘inextricably intertwined’ with the

State court’s judicial proceedings and do not require review of

9

a judicial decision in any state court proceedings then this

Court has subject matter jurisdiction.

Therefore the Feldman test for inextricably intertwined

does not apply in Dickersons’ R.I.C.O. actiion and cannot be

construed as a forbidden de-facto appeal. This Circuit has

already set precedent on this issue® when Judge Ebel stated: “a

federal District Court plaintiff is barred by Rooker-Feldman

from seeking to vacate and to set aside a previously entered

state judgment .....” Certainly in Dickersons’ R.LC.O. com-

plaint he has not asked for not does he seek to vacate or set

aside any state court judgment.

The United States Supreme Court has never, outside of

Rooker and Feldman themselves employed the doctrine to

hold that a federal district court is without subject matter

jurisdiction. It is a forbidden de-facto appeal under Rooker-

Feldman when a plaintiff in federal district court complains

of a legal wrong allegedly committed by the state court, and

seeks relief from the judgment of that court. Dickersons’

complaint is not against the judgments of the state court, nor

does he seek relief from the judgments of the state court, only

the criminal wrongs committed by the defendants. Dickerson

does not complain of a legal injury caused by a state court

judgment, but rather a legal injury caused by an adverse party

which Rooker-Feldman does not bar jurisdiction. Even if the

federal plaintiff and the adverse party have litigated the same

or a similar dispute in state court, a federal suit under R.1.C.O

may proceed under the long-standing rule permitting parallel

State and federal litigation.°

Dickerson has not brought a forbidden de-facto appeal

from any of the earlier state court judgments. The inextricab-

*Facio v. Jones 929 F2d 541, 543 (10" Cir. 1991)

*Atlantic Coast Line Railroad v. Brotherhood of Locomotive

—et st Line Kallroad v. Brotherhood of Locomotive

Engineers 398 US 281, 295 (1970)

a

10

ly intertwined analysis of Feldman does not apply in this

complaint. The claims against the clerk (Brown) are not a

claim precluded, because the clerk was never a party in any

state court actions.

Only a court of competent jurisdiction may here cases

arising under federal mail fraud, wire fraud, money laundering

conspiracy statues, and the R.I.C.O. statue 18 U.S.C. 1961 et

seq. includes no jurisdictional restrictions.'°

Dickerson is not claim precluded from bringing a claim

which could not have been litigated during a prior action.

Certainly the criminal claims in Dickerson’s 1* Amended

Complaint took place after the final decision in the state court

proceedings.

For these reasons, the Rooker-Feldman Doctrine does not

apply in this cause and this court should deny defendants G.

Ronald Bates Jr., Paul and Deborah Leavitt and Crow,

Clothier & Bates motion on the Rooker-Feldman Doctrine.

' Allen v. McCurry 449 US 90, 103-105 (1980)

11

DICKERSON’S COMPLAINT STATES CAUSES

ACTION AGAINST THE DEFENDANTS

UNDER 18 U.S.C. 1961 ET SEQ.

First, Dickerson does not base any of his claims under

R.1.C.O. in a landlord/tenant matter. The crimes committed

by the defendants took place after the final adjudication in

those matter.

Second, the defendants failed in their duty to this court as

an officer to point out that the Supreme Court case law

states: “A pattern is shown by at least two related acts .... “!!

which case came out some four (4) years after Sedima cited

on page 13 of the defendants’ motion.

TIMING AND NATURE

Plaintiff's 1“ Amended Complaint in paragraph 66, 67, 68,

69, 70, 80, 81, 82, 83, 84, 90, 102, 109, 110, 111, 112, 117,

118, 119, 120, 127, 129, 131, and 138 sets forth the specific

timing of the criminal acts. These paragraphs set forth more

than two (2) acts, there are fifteen (15) acts and shows the

relationship to each other, and were continuous over at least

4 years, and with recent discovery Dickerson has found this

pattern involving others.

Dickersons’ 1“ Amended Complaint page 12 paragraph

66 through 75 are particular as to the parties, dates, crimes,

and all the elements of mail fraud including materiality, are

set forth.

The fact is Dickersons’ 1 Amended Complaint is as

particular as UNA” that in all arguments of fraud or

mistake, the circumstances constituting fraud or mistake

shall be stated with particularity. Rule 9(b) is to be read in

harmony with the simplified notice pleadings of Rule 8, that

'' HJ Inc. v. Northwestern Bell Telephone 492 US 229 (1989)

"? UNA Plus Inc. v. Apria Healthcare Group Inc. 29 F.Supp 2™ (D. Kan

1998)

12

is the plaintiff must describe the circumstances of the fraud,

the time-place-content of false representation, identify the

person making the representation, the harm caused by

plaintiffs’ reliance on the false representation, and since

Neder material misrepresentation. |

Paragraph 66 in Dickersons’ 1* Amended Complaint

states the time, place, content of the false representation,

identity of the persons, the harm caused by the false

representation, and the material misrepresentations.

Paragraph 68 in Dickerson’s 1* Amended Complaint

states the time, place, content of the false representation,

identity of the persons, the harm caused by the false

representation, and the material misrepresentations.

Paragraph 71 in Dickersons’ 1* Amended Complaint

states the time, place, content of the false representation,

identity of the persons, the harm caused by the false

representation, and the material misrepresentations.

Paragraphs 105 through 113 in Dickersons’ 1 Amended

Complaint states the time, place, content of the false

representation, identity of the persons, the harm caused by

the false representation and the material misrepresentations. _

Paragraphs 116 through 123 in Dickersons’ 1* Amended

Complaint states the time, place, content of the false

representation, identity of the person, the harm caused by the

false representation and the material misrepresentations.

Paragraphs 127 through 133 in Dickersons’ 1° Amended

Complaint states the time, place, content of the false

representations, identity of the persons, the harm caused by

the false representation and the material misrepresentations.

Dickersons’ 1“ Amended Complaint on page 5 number 25

sets forth the enterprise of an association-in-fact, seeUNA @

1259. Contractual relationships can be an enterprise, and

informal association between two (2) contracting business

will suffice.

ee ee ee a,

13

There is nothing nebulous or open-ended about

Dickersons’ description of the enterprise of an association-

in-fact and all the parties mentioned on page 8 paragraph 47.

CONCLUSION

For these reasons this court should deny the defendants

motion to dismiss, or in the alternative grant Dickerson leave

to amend his complaint

Respectfully submitted;

~,

/

‘Ee CD eff

P ate thy Vy} A

Veta el heen,

Durand Dickerson

APPENDIX-J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DURAND DICKERSON

Plaintiff

vs. CASE NO. 03-2337-J WL.

G. RONALD BATES JR.; CHARLENE

BROWN; PAUL LEAVITT, DEBORAH

LEAVITT; CROW, CLOTHIER & BATES

a Kansas Corporation

Defendants.

MEMORANDUM IN SUPPORT OF DICERSON’S

RESPONSE TO BROWN’S MOTION TO DISMISS

In accordance with D. Kansas rule 7.6, Dickerson files this

memorandum in support of response to defendant Brown’s

Motion to Dismiss.

NATURE OF THE MATTER BEFORE THE COURT

Dickerson filed his complaint pursuant to the R.I.C.O. Act

18 U.S.C. 1961 et seg. 18 U.S.C. 1341 and 1346; 18 U.S.C.

2; 18 U.S.C. 371; and not 10 U.S.C. 1861-1868 as alleged in

Brown’s motion on page-2 #3.

I

STATEMENT OF FACTS

The garnishment’s which are the subject of Dickerson’s

R.1.C.O. action have never been the subject of any

proceedings either in a state district court or a federal court at

anytime in the past, see Dickerson’s complaint pages 11

2

through 24.

Brown is not entitled to absolute judicial immunity as

Dickerson has charged her violation of 18 U.S.C. 1346 that is

the intangible right to good and honest government, (Dicker-

son’s complaint pages 20-21). At best Brown could plead

qualified immunity which she has not done.

The garnishment orders were not valid orders, and in fact

Brown in conspiracy with the other named defendants with-

held these funds from Dickerson, (Complaint page20 #115-

123).

Dickerson is not charging Brown with crimes in her

official capacity, but in her individual capacity because she

acted without judicial authority to do so, (Dickerson’s

complaint page 20 through 25).

The Rooker-Feldman Doctrine does not apply to Brown

because she was not a named defendant or plaintiff in any of

the previous cases as set forth by Brown in he memorandum

on page 2 #3 through #8.

Tit

QUESTION PRESENTED

A) BROWN IS NOT ENTITLED TO ABSOLUTE

JUDICIAL IMMUNITY

B) R.L.C.0. AGAINST BROWN IS NOT BOUND BY

THE ROOKER-FELDMAN DOCTRINE

C) DICKERSON STATED A R.1.C.0O. CAUSE OF

ACTION

D) BROWN IS NOT ENTITLED TO 11™ AMEND-

MENT IMMUNITY

E) COLLATERAL ESTOPPEL DOES NOT BAR

DICKERSON’S R.I.C.0. COMPLAINT AGAINST

BROWN

IV

ARGUMENTS AND AUTHORITIES

a

3

A

BROWN IS NOT ENTITLED TO

ABSOLUTE JUDICIAL IMMUNITY

Dickerson’s claims against Brown took place while she

was acting as a clerk of the district court without authority to

do so (see Dickerson’s complaint pages 20 through 25).

Dickerson states with clarity that the actions taken by

Brown were without authority to do so and the actions by

Brown violated federal law, (Complaint pages 16 through

25). The fact is the garnishment orders were not valid and

were not even orders.

The acts taken by Brown and the other co-defendants in a

conspiracy, were done without any jurisdiction to do so either

subject matter or personal jurisdiction.

In the case of Dopps’ cited by Brown is in opposition to

her defense in that the search warrant in Dopps was valid and

Dickerson has shown in his R.I.C.O. complaint that the

garnishment were not valid (Complaint pages 16 through 25).

The fact is the criminal actions of Brown gave the impression

that the garnishments were valid when in fact they were not.

Dickerson has alleged a factual basis for his R.I.C.O.

claims against Brown’ which gives Dickerson standing.‘

'Henriksen v. Bentley 644 F2d 852, 852, (10" Cir. 1981)

2. Dopp v. Loring, 02-5017, 2002 WL 31839852 (10" Cir. Dec. 19, 02)

3. U.S. Ex-Rel Verdone v. Cir Court of Taylor County 851 F.Supp

345, 347 (W.D. Wis. 1993) .

4. Leighton Ares School District v. Gilbert 787 F. Supp 421, 431 (M. D.

Pa. 1992)

4

The acts taken by Brown were not as a clerk, therefore she

does not have absolute judicial immunity. It is the nature of

the function being performed and not mere identity of a

person as a Clerk that determines absolute immunity.’

The Supreme court has held that the defense of absolute

immunity is unavailable to a court clerk for actions taken

outside of her authority.° Further in Kalina the Supreme

Court stated; “...... when personally attesting to the truthful-

a is not acting as an advocate but a complaining

witnesses” @ 508-509, (Complaint page 16 #79 and 80; page

19 #101 and 102; and page 19 #104 through 113. Brown has

testified and made a record that she was without authority to

take Dickerson’s funds and Brown committed fraud in doing

so because she was not acting as a clerk at the time. There

was no professional judgment involved in her actions as the

statue that gave her the authority to take the funds.

As in Kalina clerks do not enjoy absolute immunity for

conduct in executing the seizure in which personally vouched

the truth of the facts. Under 18 U.S.C. 1346 Dickerson has a

intangible right to honest service by governmental employees.

(B)

R.L.C.O. AGAINST BROWN IS NOT BARRED

BY THE ROOKER-FELDMAN DOCTRINE

Nothing in Dickerson’s R.I.C.O. Complaint re-litigates

any issues decided in the previous state and federal cases.

The garnishment could not have been raised because the

garnishments did not take place until after the final decision

in all the cases cited by Brown.

*Van Deelen v. City of Eudora Kansas 53 F .Supp 2™ 1223,

1227-28 (D. Kan. 1999)

.

*Kalina v. Flecther 522 US 118 (1997)

5

Dickerson is not asking for any review in his R.L.C.O.

complaint of any claims decided in the state and federal

cases. The garnishments are a post annulling proceeding

and are not a part of the decisions. Dickerson does not

challenge the rulings of the state courts but the criminal

actions by the defendants in the post annulling proceedings

done without jurisdiction to do so.

Since Brown was not a party in the state or federal court

actions named in her motion, and the actions were taken in a

post annulling proceedings, the Rooker-Feldman Doctrine

does not apply.

The Rooker-Feldman Doctrine takes it name from two(2)

cases.’ Under this doctrine a federal district court does not

have subject matter jurisdiction to hear a direct appeal from

a final judgment of a state court. The United States Supreme

Court vested with jurisdiction to hear such an appeal.

Here Dickerson has not done a direct appeal based upon a

final judgment of a state court. This Court has jurisdiction

over the subject matter pursuant to 18 U.S.C. 1961 et seq.

R.1.C.O., see Dickerson’s 1** Amended Complaint, (I)

Jurisdiction page 1.

Furthermore a R.I.C.O. action is not a direct appeal of a

State court judgment but is independent criminal jurisdiction

Over crimes committed.

The Supreme Court has applied Rooker-Feldman to hold

that a federal district court is without subject matter jurisdic-

tion only in two (2) cases from which the doctrine takes its

name.

In Rooker the plaintiff had lost in state court. The legal

wrong alleged was that the state court had made errors in

deciding the constitutional claims, rather than the defendant

acted illegally. Dickerson alleges in his complaint, pages

”Rooker v. Fidelity Trust Co. 263 US 413 (1923)

Dist. Of Columbia Court of Appeals v. Feldman 460 US 462 (1983)

_ applying the rule to deny the waivers it acted judicially, @

6

11-24 how the defendants acted illegally.

In essence Rooker held that when a losing plaintiff in state

court brings a suit in Federal District Court asserting legal

wrongs, allegedly erroneous legal rulings of the state court,

and seeks to vacate or set aside the judgment of the state

court, the federal suit is a forbidden de facto appeal. Here

Dickerson does not challenge to vacate or set aside any judg-

ment in any of the listed state court actions previously decid-

ed. Dickerson charges violations of the federal criminal

statues under R.I.C.O. of action taken though an association-

in-fact enterprise, see Dickerson’s 1* Amended Complaint

page 12 paragraphs 64-67.

In Feldman, two plaintiffs were graduates of an unaccredit-

ed law school who petitioned the District of Columbia district

court for waivers that prevented them from taken the bar

examination. The plaintiffs has previously petitioned the

local courts for waivers based upon the 5" Amendment and

anti trust laws, and were denied.

The Supreme Court noted that the District of Columbia

local court had acted both judicially and legislatively. In

479. In promulgating its rule, on the other hand it acted

legislatively, @ 485 and 486.

The Supreme Court divided its analysis into two parts.

First the Court held that part of the plaintiffs’ suit was a for-

bidden de-facto appeal of the judicial decision of the D.C.

court. Here Dickerson is not appealing any Kansas State

court decisions.

Second the Supreme Court permitted the plaintiffs

challenge to the local court’s legislature acts of promulgating

its rule regulating the bar examination @487. This was a

challenge to the validity of the rule rather than a challenge to

the application of the rule.

The Supreme Courts’ answer was straightforward. [I]f the

constitutional claims presented to the United States District

ee

7

Court are ‘inextricably intertwined’ withe the states court

denial in a judicial proceeding, then the District Court is in

essence being called upon to review the state court decision.

Here Dickerson raised only federal criminal and state

criminal violations that was not raised in the state court

proceedings. Therefore the issues raised in Dickerson’s

R.I.C.O. complaint are not ‘inextricably intertwined’ with the

state court’s judicial proceedings and do not require review of

a judicial decision in any state court proceedings then this

Court has subject matter jurisdiction.

Therefore the Feldman test for inextricably intertwined

does not apply in Dickersons’ R.1.C.O. actiion and cannot be

construed as a forbidden de-facto appeal. This Circuit has

already set precedent on this issue® when Judge Ebel stated: “a

federal District Court plaintiff is barred by Rooker-Feldman

from seeking to vacate and to set aside a previously entered

State judgment .....” Certainly in Dickersons’ R.I.C.O. com-

plaint he has not asked for not does he seek to vacate or set

aside any state court judgment.

The United States Supreme Court has never, outside of

Rooker and Feldman themselves employed the doctrine to

hold that a federal district court is without subject matter

jurisdiction. It is a forbidden de-facto appeal under Rooker-

Feldman when a plaintiff in federal district court complains

of a legal wrong allegedly committed by the state court, and

seeks relief from the judgment of that court. Dickersons’

complaint is not against the judgments of the state court, nor

does he seek relief from the judgments of the state court, only

the criminal wrongs committed by the defendants. Dickerson

does not complain of a legal in jury caused by a state court

judgment, but rather a legal injury caused by an adverse party

which Rooker-Feldman does not bar jurisdiction. Even if the

federal plaintiff and the adverse party have litigated the same

*Facio v. Jones 929 F2d 541, 543 (10" Cir. 1991)

Facio v. Jones

8

or a similar dispute in state court, a federal suit under R.I.C.O

may proceed under the long-standing rule permitting parallel

state and federal litigation.’

Dickerson has not brought a forbidden de-facto appeal

from any of the earlier state court judgments. The inextricab-

ly intertwined analysis of Feldman does not apply in this

complaint. The claims against the clerk (Brown) are not a

claim precluded, because the clerk was never a party in any

state court actions.

Only a court of competent jurisdiction may here cases

arising under federal mail fraud, wire fraud, money laundering

conspiracy statues, and the R.I.C.O. statue 18 U.S.C. 1961 et

seq. includes no jurisdictional restrictions. '°

Dickerson is not claim precluded from bringing a claim

which could not have been litigated during a prior action.

Certainly the criminal claims in Dickerson’s 1* Amended

Complaint took place after the final decision in the state court

proceedings.

For these reasons, the Rooker-Feldman Doctrine does not

apply in this cause and this court should deny defendant

Brown’s motion on the Rooker-Feldman Doctrine.

C

DICKERSON STATED A R.1.C.O. CAUSE OF ACTION

Dickersons’ R.I.C.O. Complaint states with specificity

mail fraud, 18 U.S.C. 1341 (Complaint pages 11 through 14);

intangible right to honest government service, 18 U.S.C.

1346 (Complaint pages 21 and 22); conspiracy, 18 U.S.C.

341 (Complaint pages 15 and 16); signing false documents

Atlantic Coast Line Railroad v. Brotherhood of Locomotive

- Engineers 398 US 281, 295 (1970)

“Allen v. McCurry 449 US 90, 103-105 (1980)

9

18 U.S.C. 1001, (Complaint pages 19 and 20).

Dickerson does not sprinkle the word FRAUD in his

complaint, but sets forth the facts that are violations of the

federal and state criminal_codes (Complaint pages 11 through

24). 7

First Dickerson set forth the enterprise (Complaint page 8)-

as an association-in-fact.'' The association-in-fact in UNA

is very similar to the one that Dickerson set forth with

particularity.

Brown’s motion on pages 10 and 11 shows that she do not

fully understand the existence of an association-in-fact

enterprise. The law of this Circuit is that an association-in-

fact of persons could form an enterprise that is separate and

distinct from each members of the association.

The Supreme court made it clear that single schemes can

be a pattern of racketeering and they do not have to have a

long term pattern.’ Brown totally avoids the subject of the

pattern raised in Dickersons’ Complaint pages 7, and 12

through 15. There are others, other than Dickerson whom

have been the subject of the predicate acts. The fact is these

predicate acts continue today and Dickerson will produce in

discovery others that have been defrauded by the same

criminal predicate acts of mail fraud, 18 U.S.C. 1341;

intangible right to honest government service, 18 U.S.C.

1346; conspiracy 18 U.S.C. 371; false documents 18

U.S.C.1001; and State of Kansas violations.

Dickersons’ Complaint on page 16 and 17 shows a treat of

continual criminal activity, and the facts shows that the

“UNA Plus, Ine. v. Apria Healthcare Group, Inc 29 F.Supp. 2™

1253 (D. Kan. 1998)

'?Sunbird Air Services, Inc. v. Beech Aircraft Corp. 789 F.Supp.

364, 366-367 (D. Kan. 1992)

'7H.J, Inc. v. Northwestem Bell Telephone 492 US. 229 (1989)

10

criminal activities continues up to today. The acts are not over

weeks or months, but started prior to Dickerson and is open-

ended, that is it has continued since the criminal conduct -

against Dickerson, which he will provide during discovery.

Mailing a journal entry that is a fraud and false, meets the

elements of mail fraud and is a material issue for a jury to

decide.

The convexity to interstate commerce under R.I.C.O. is

minimal, and the operation of the defendants including

Brown effects interstate commerce.'*

The material fact in dispute here, which Brown demurs in

her motion is simple; Is THE GARNISHMENTS LEGAL

AND LAWFUL, OR WERE THEY CREATED UNLAW-

FULLY AND ILLEGALLY IN THE R.I.C.0. SCHEME?

D

BROWN IS NOT ENTITLED TO

11™ AMENDMENT IMMUNITY

Under R.I.C.O., which is quasi criminal there is no such

11" Amendment immunity for criminal acts done outside of

an official’s official capacity. 18 U.S.C. 1346 and 18 U.S.C.

1001 are criminal statue that other state officials have been

successfully prosecuted for under R.1.C.O.

Dickerson is not seeking damages from Brown in her

official capacity when she unlawfully and illegally created

documents, she shed her cloak of immunity, especially when

she acted in conspiracy with the other defendants. The

amended statue of 18 U.S.C. 1346 by Congress makes it clear

that Dickerson has the intangible right to a good and honest

government.

'4Cowan v. Corley 814 F2d 223 (5" Cir. 1987)

Corporacion Insular De Seguros v. Menoz 826 F.Supp. 599 (D. P.R. 1993)

MDO Development Corp. v. Kelly 729 F.Supp. 579 (S.D. New York 1989)

11

E

LATERAL ES NOT BAR DICK-

E NS’ R.LC. MPLAINT AGAINST BROWN

Brown makes the bald statement without point to one

place in the record of the previous cases that these R.LC.O.

claims have been litigated. Dickerson incorporates herein by

reference his response in Issue (B) by reference.

The R.LC.O. issues are criminal code violations that have

never been adjudicated in any landlord/tenant dispute that

Dickerson has bee involved with in Kansas state courts.

It is simple, in Dickersons’ Complaint page 20 #115

forward sets forth the fact that the clerk under 18 U.S.C. 1346

deprived Dickerson of the intangible right to good and honest

government. Page 21 #118 sets forth the criminal violation.

Page 21#119 sets forth the criminal violation of 18 U.S.C.

1341 (mail fraud) and 18 U.S.C. 1346.

Brown cannot cite anywhere in the state court proceedings

where this was adjudicated, because “IT WAS NEVER” ;

Brown has failed in her motion to cite the record with

specificity of her support of her claims, and she has not

placed an affidavit before this Court as to her assertion

because she cannot. Brown has no record attached to support

her claim. WHERE IS THE GARNISHMENTS?

For there reasons and dickersons’ attached affidavit he

asks this Court to deny the Clerk’s Motion to Dismiss.

Respectfully submitted,

~s/ Durand Dickerson”

APPENDIX-K

UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

Durand Dickerson

JUDGMENT IN A CIVIL CASE —

Plaintiff

V. CASE NUMBER: 03-2337-JWL

G. Ronald Bates, Jr.; Charlene

Brown; Paul Leavitt; Deborah

Leavitt; Crow, Clothier & Bates

a Kansas Corporation.

Defendants

[X] Decision by Court. This action came before the Court.

The issues have been considered and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

pursuant to the Memorandum and Order filed on October 22,

2003, that the plaintiff shall take nothing, that the action is

dismissed on the merits, and that the defendants shall recover

from plaintiff their costs of action herein.

October 22, 2003 RALPH L. DeLOACH

Date Clerk

S/SHARON SCHEVERER

(By) Deputy Clerk

APPENDIX-L

NOTICE OF APPEAL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DURAND DICKERSON WS. Mayiag aceny

Plaintiff OS |

O3NOY 20 AM IO: 54

“USACH

a

a | eKs

vs. CASE NO. 03-2337-JWL

G. RONALD BATES JR.; CHARLENE

BROWN; PAUL LEAVITT; DEBORAH

LEAVITT; CROW, CLOTHIER & BATES

a |.ansas Corporation;

Defendants

NOTI PE

COME NOW, Durand Dickerson, plaintiff, and files this

Notice of Appeal from the United States District Court,

District of Kansas dismissal of this case filed on October 22,

2000, to the United States Court of Appeals for the tenth

i

Durand Dickerson

APPENDIX-M

03-3341

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DURAND DICKERSON

Plaintiff/Appellant

V.

G. RONALD BATES JR., CHARLENE BROWN;

PAUL LEAVITT; DEBORAH LEAVITT;

CROW, CLOTHIER & BATES; a Kansas

Corporation

Defendants/Appellee

ON APPEAL FROM THE UNITED STATES

DISTRICT COURTFOR THE DISTRICT OF

KANSAS, CASE NO. 03-2337 JWL

APPELLANT’S BRIEF

DURAND DICKERSON

P.O. BOX 572

LEAVENWORTH, KANSAS 6604

(913) 351-2919

be ee ee ae en oe ae) Pe ee a a

OPP = ye Te 1 aoe

aa eee eal sa eal re teowe

TABLE OF CONTENTS

MRR SN teins tsi ec lscdiccrsUinaciccntaincaciarasse i

SIAM PT as isitsvchnsecsdscssisscasicesniaiecs li, 1ii

STATUES AND MISCELLANEOUS ........cccccccssscoseceseoce. IV

JURISDICTIONAL STATEMENT. .........cccccccssscscsssececeseee |

A. BASIS FOR DISTRICT COURT JURISDICTION...1

B. BASIS FOR APPELLATE COURT JURISDICTION

C. FILING DATE TO ESTABLISHING TIMELINESS

ssa iho gO ]

STATEMENT OF ISSUES PRESENTED FOR REVIEW ..2

STATEMENT OF THE CASE. .u.0.....cccccscescessesssssscsesceseece 2

Pe MME SON WIN Th asicscseinsssescoreinntsiisscesstusaneacceace 3

SUMMARY OF ARGUMENTS ....0....cccccsecsssssessssecescesessees 4

ARGUMENTS

1. INEXTRICABLY INTERTWINED.........ccccccccceeeec 5

tow SR A Fi PAY ai cscsiscencccssontasninscones 9

3. SHOULD MICHAEL CROW HAVE BEEN

SE TIE sciirsstbainpulisesicbisdtincastaniiasbeiniscchatn 9

SI ides siiiticietetta ciated boiinnighciasieuinse vances 11

CERTIFICATE SOF TT isin inkitnisoniticscsiasiedcsiiionne 12

CERTIFICATE OF COMPLIANCE ........:secsssesscssssseestecs ts. Se

THERE ARE NO PRIOR OR RELATED APPEALS

i

TABLE OF TABLE OF AUTHORITIES

Page

Barnett v. State of Colorado 03-1225 (10" Cir.

RONG DU, FID scancisnissiniratnnienideviiesiaecebeat eee eas 8

Bisbee v. McCarty 00-1115 (10" Cir. February 2, 2001)..... 8

Cole v. Ruidoso Municipal School, 43 F3d_1373, 1384 (io

CE I csssisssacrsccsscnatecalicebesahaciceeecguele na ama 9

“~~~ Continental Casualty v. Hempel 97-2136 (10" Cir. February

TMI csissetisnsisrnssicisncpeibnnientiieas cnstecacne aan ana 8

Dale v. Moore 121 F3d 624, 626 (11™ Cir. | | Sa 7

District of Columbia Court of Appeals v. Feldman 460 US

IIIS esicnisiticsivtinitadentaens SeuuAnadaniacasuie eee one 5

Doe v. Pringle 550 F2d 596, 597 (10™ Cir. 1976)........0.00-- 5

Ellis v. CAC Financial Corp. 00-6170 (10% Cir. March 26,

MES: scisicensicterininideintinehinaiatnalanlan vibicccauiiiaan a eames 8

English v. Meacham 01-4137 (10" Cir. Nov. 29, 2001) ...... 8

Harpin v. Oakley Customs Homes Inc. 99-1557 (10" Cir.

SII © TOs coissticnicinhetitenbsahaligilasinasiastnieisitleeieaieaeneeae cana. 8

Johnson v. De Grandy 512 US 997 (1994)......ccccccccccssseeeeee 7

Johnson v. Riddle 305 F3d 1107 (10 Cir. 2002)............0++-. 8

Johnson v. Rodrigues (Orozco) 226 F3d 1103 (10" Cir.

Bi issiiseastetiscecinibsaicincs snleseibiemsaipeicialiei tate ee 5,7, 8

Jordan v. Brazil 00-3024 (10" Cir. October 6, 2000)........... 8

Kalina v. Fletcher 522 US 178 (1997)......:.ccccccccccssssssssccseceeee 9

Kenmen Engineering v. City of Union 314 F3d 468, 476 (10 |

— HE II cssccicsaniscine-cinsessisacacisncsndaeinaasaiaseieldaa aint mune 6, 8

Kiowa Indians Tribe of Oklahoma v. Hoover 150 F3d 1163,

SEF TE IE CII visttiitnricciranti 6, 8

Lecates v. Barker 00-4026 (10" Cir. Nov. 16, 2000).......... 8

- Lemonds v. St Louis County 222 F3d 488, 494 (8" Cir.

PI science iad ieta cca ee 6

McNally v. United States 483 US 350 (1987).......c:.sessecoeesees 9

11 |

ll a

Penzoil Co. v. Texaco Inc. 481 US | : SSS 6,11

Pittsburg County Rural Water y. C. ity of McAlester 02-7080

(10" Cir. October 17, 2003) ithaca snedasndncanecaans 8

Read v. Klein 99-5058 (10

Statues and Miscellaneous

RWW Si ass Siva sussnsesrensidsnnitadcsaniiensineaintentanneaachalaidasaeniaeaanaaal l

18 U.S.C. ee siaiccaainieniiiasiniadinineiaaiiaiois 3

Re SP Aics, BAW R vicissicsuvanssniialbbinntinsbesacnatanantaiaadnnichiiindaansiai 1,3

Ue CE Tacx: Bie lonnsicacesicconsnsitsiassesasenenniesieelueiiaptnieidlilateaat iad i,2

SP Ai eiles E a ee inresissnniircinnincajaeceeaananmiabiataidicnidamenini ha

Fe Slee ns: RAD casascccindvinniendannabeiannuaabiastnniabishainsieiniambiaes Ls

Fe Fees, 0d eee icineiloniccnivenicisbipeiiecatans baitsibisiaiadaneeinicdaalnael i.»9

Ser ais Se I icssctsicsnenirig ciccdalatcnaieebaiida ts ]

ics MAI e scisiiceseidaccltcieabeanctsniie ha miciennanlicactiibiaia 1

po BE ati F | Ene aCe Ro eo TORE EEE ROOT j

i Ee Se ee csnncaiieeiiiniinicnicas liaise ]

a Neel Ae ec tiicisin aiiseneteaasaheibinidcdepenbidecibainnbdiceaceeccigibimeincetsetaae 3

ies ae TO UNE NI ccicscesejisnsbancinnsininsblidihaindniomiinihaoniaicdiunniis |

eed ac ME I Ns acbcicica esnacacuineanaincasinsiits inci veclanaiaelen=n |

F.R.A.P. 4(@)(1)(A).......-nsservsssersvsssesssrssnsenssecansesecnccaneessnscoees l

Laurence H. Tribe, American Constitutional Law 594N. 59

(3 Edition 2000) ...............ss.sss00 7

ABA Model Code of Professional Responsi

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