Petition for Writ of Certiorari — Acton v. City of Eaton

Supreme Court brief2005

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LIST OF PARTIES

The Petitioner, Stephanie S. Acton, appears as Pro Se,

3045 US 35 West, Eaton, Ohio 45320, (937)-456-3731.

The Respondents City of Eaton; Leslie Renner, City

Clerk; Dave Daily, City Manager; Police Chief Phillip

Romeo; John Petry, City Attorney; Pat Taylor, Mayor and

Treasurer of PC Youth Foundation, appears by Erin B.

Moore of Green & Green, 800 Performance Place, 109 North

Main Street, Dayton, Ohio 45402-1290, (937)-224-3333.

The Respondents, Preble County; Christopfer B.

Washington, PC Clerk; Rebecca Ferguson, PC Prosecutor;

and PC Sheriff Tom Hayes, appears by Christopher W.

Carrigg, Charity S. Rob, Neil F. Freund, and Daniel F. Getty

of Freund, Freeze & Amald, 1800 One Dayton Centre, 1

South Main Street, Dayton, Ohio 45402-2017, (937)-222-

2424.

The Respondent, Honorable Wilfred Dues, Judge of

PC Court of Common Pleas and Founder of PC Youth

Foundation, appears by Ralph E. Burnham and Hope A.

Smith of Montgomery, Rennie & Jonson, 36 East Seventh

Street, Suite 2100, Cincinnati, Ohio 45202, (513)-241-4722.

The Respondent. Parker-Hannifin Corporation:

Wayne Pinkstaff, Human Resource Manager; and Jenny

Haddux, Insurance Specialist, appears by Bruce G. Hearey

and Allison McCallum of Spieth, Bell, McCurdy & Newell

Co., L.P.A., 927 Euclid Avenue, Suite 2000, Cleveland, Ohio

44115, (216)-696-4700.

Condolences to the family of PC Sheriff Tom Hayes as he has

deceased since Petitioner’s filing of her complaint on April 4,

2003, in The United States District Court for the Southern

District of Ohio Western Division. PC Prosecutor, Rebecca

Ferguson has recently retired. Eaton City Attorney, John Petry

has also retired. Pat Taylor no longer functions as mayor, nor sits

on city council.

Xil

LIST OF PARTIES CONTINUED \

The Respondents, Samaritan Behavioral Health, Inc.

and Lori Marcellino, Psy D., appears by John F. Haviland of

Bieser, Greer & Landis LLP, 400 National City Center, 6

North Main Street, Dayton, Ohio 45402, (937)-223-3277.

The Respondents, Preble County Youth Foundation;

Founder, Wilfred Dues; Treasurer, Pat Taylor, appears by

Grey W. Bennett, Bennett Law Building, 200 West Main

Street, Eaton, 0hi045320, (937)-456-4100.

The Respondents, Harold Allen Ferguson, DO. And

Mark Steven Vosler, DO., appears by Mark L. Schumacher

and Vaseem S. Hadi of Freund, Freeze & Arnold, One

Dayton Centre, Suite 1800, Dayton, Ohio 45402-2017, (937)-

222-2424.

The Respondent, Preble County Medical Center,

appears by Robert F. Cowdrey of Statman, Harris, Siegel &

Eyrich, LLC, 110 North Main Street, Suite 1520, Dayton,

~ Ohio 45402, (937)- 222-1090.

xiii

TABLE OF CONTENTS

COVER PAGE

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX A: Sixth Circuit Court of Appeals,

At Cincinnati, Ohio; Honorable

Martha Craig Daughtrey, Honorable

Deborah Cook, Honorable Jerome Farris;

Case No. 04-3095; Denial of Rehearing;

Entered December 7, 2004

APPENDIX B: Sixth Circuit Court of Appeals,

At Cincinnati, Ohio; Honorable

Deborah Cook, Honorable Jerome Farris;

Case No. 04-3095; Denial of Rehearing;

Filed February 4, 2005

XIV

(i)

(ii - xi)

(xii, xiii)

(Xiv-xv1)

31-36

37-40

APPENDIX C: US District Court the Southern

District Western Division at Dayton, Ohio;

Honorable Michael R. Merz;

Case No. 3-03-0116; Docket 87,

- Dismissal and Summary Judgment,

Entered on November 28, 2003 41-58

APPENDIX D: US District Court the Southern District

Western Division at Dayton, Ohio;

Honorable Michael R. Merz; 3-03-0116;

Grant Extension of Time entered

October 9, 2003, docket 81 59-61

APPENDIX E: American Bar Association’s

Modei Code of Judicial Conduct

(in part) 62-65

APPENDIX F: American Bar Association’s

Model Rules of Professional Conduct

(in part) 66

APPENDIX G: Federal Rules of Civil Procedure:

V. Depositions and discovery> Rule 34

Production of Documents and Things and

Entry Upon Land for Inspection

and Other Purposes (in part) 67-68

APPENDIX H: Federal Rules of Civil Procedure:

V. Depositions and discovery> Rule 37

Failure to make or Co-operate in

Discovery; Sanctions (in part) 69-70

APPENDIX I: Ohio Revised Code:

Section 5122:

Hospitalization of Mentally Il! (in part) 71-76

APPENDIX J: Ohio Revised Code

Section 4113.

Miscellaneous Labor Provisions (in part) 77-79

XV1

No.

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHANIE S. ACTON,

*Petitioner

vs. -

CITY OF EATON: LESLIE RENNER, DAVE DAILY,

PHILLIP ROMEO, JOHN PETRY; PAT TAYLOR, City Mayor

and Treasurer of P.C. Youth Foundation;

PREBLE COUNTY: CHRISTOPHER B. WASHINGTON;

PC. Prosecutor, REBECCA FERGUSON; P.C. Sheriff TOM

HAYES;

HONORABLE WILFRED G. DUES,

Judge of P.C. Court of Common Pleas and

Founder of P.C. Youth Foundation;

PARKER-HANNIFIN CORPORATION: WAYNE PINKSTAFF,

JENNY HADDUX; SAMARITAN BEHAVIORAL HEALTH,

INC., LORI MARCELLINO, Psy;

PREBLE COUNTY YOUTH FOUNDATION;

PREBLE COUNTY MEDICAL CENTER:

HAROLD ALLEN FERGUSON, DO.,

MARK STEVEN VOSLER, DO. and P.C. Health Commissioner.

; Respondents,

On Petition for Writ of Certiorari to the United States

Court of Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Stephanie S. Acton, Pro Se, Petitioner herein, prays

that a Writ of Certiorari be granted by this esteemed court, as

Ms. Acton presents issues for reviewing the order of denial

by the Sixth Circuit Court of Appeals, wherein that court

]

upheld the Dismissal and Summary Judgment ordered on

November 28, 2004 by Honorable Michael R. Merz of the

United States District Court for the Southern District of Ohio

Western Division, as it pertains to case number 03-00116

styled Stephanie S. Acton vs. City of Eaton, et al.

OPINIONS BELOW

The Order entered December 7, 2004, in the Sixth

Circuit Court of Appeals, Cincinnati, Ohio, in the case styled

Stephanie S. Acton v. City of Eaton, et al., case number 04-

3095, may be found in the Appendix to this Petition,

Appendix A, at pages 31-36.

The opinion of the Sixth Circuit Court of Appeals,

Cincinnati, Ohio, filed February 4, 2005, in the case styled

Stephanie S. Acton v. City of Eaton, et al., case number 04-

3095, may be found in the Appendix to this Petition,

Appendix B, at pages 37-40.

The Dismissal and Summary Judgment ordered by

Honorable Michael R:--Merz of the United States District

Court for the Southern District Western Division, filed as

docket 87 on November 28, 2003, may be found in the

Appendix to this Petition, Appendix C, at pages 41-58.

The granted extension of time so ordered by

Honorable Michael Merz of the United States District Court

for the Southern District Western Division, filed as docket 81

on October 9, 2003, may be found in the Appendix to this

Petition, Appendix D, at pages 59-61.

JURISDICTION

Stephanie S. Acton, Petitioner, Pro Se, commenced a

civil action in the United States District Court for the

Southern District of Ohio Western Division. Case number

03-00116 was filed on April 4, 2003. Ms. Acton is

proceeding with this lawsuit under Title 42 of the United

States Codes, section 1983 and related sections there to, and

Ms. Acton alleges a violation of rights under the First,

Fourth, and Fourteenth Amendments to the Constitution and

Ohio state claims. Further, Ms. Acton is seeking damages

and equitable relief under Title 42 U.S.C., section 1983 and

Ohio state law. On November 28, 2003, Judge Michael R.

Merz entered decision and order granting Summary

Judgment and Dismissal of Ms. Acton’s case. Ms Acton

timely filed a Petition for Rehearing in the United States

Court of Appeals for the Sixth Circuit on December 21,

2003, case number 04-3095. An Order to deny Petitioner a

rehearing was filed on February 4, 2005. The U.S. Court of

Appeals for the Sixth Circuit was the highest U.S. Court in

which a decision could be had in this case. The jurisdiction of

this Court is invoked under Title 28, Part IV, Chapter 81,

Section 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following provisions of the

Constitution of the United States: the First Amendment,

which provides:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances”;

and the Fourth Amendment, which provides, in pertinent

part:

“The right of people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, = no

warrants shall issue, but upon probable cause,

and the Fifth Amendment, which provides, in pertinent pert:

“ |. . mor be deprived of life, liberty, or property,

without due process of law; .. .”; 7

and the Sixth Amendment, which provides, in pertinent part:

“ ... and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense”;

and the Fourteenth Amendment, Section 1, which provides,

in pertinent part:

“ ... mor shall any State deprive any person of life

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws”;

and the following provision of the United States Code: 42

U.S.C. 1983, which provides, in pertinent part:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable”;

and the following portions of Canon 3 of the Model Code of

Judicial Conduct as sanctified by the American Bar

Association: 3A, 3B, 3B(1), 3B(2), 3B(5), 3B(6), 3B(7), 3D,

3D(1), 3D(2), 3E, 3E(1), 3E(1)(a), set out in the Appendix to

this Petition as Appendix E, pages 62-65;

and the following portions of the Model Rules of

Professional Conduct: Rule 3.6(a) and Rule 3.8(f), set out in

the Appendix to this Petition as Appendix F, page 66;

and the following portions of Ohio Revised Code Section

4113.52: (A); (B); (C); (D), set out in the Appendix to this

Petition as Appendix J, pages 77-79 (in part);

and the following portions of Ohio Revised Code Section

5122.11: set out in the Appendix to this petition as Appendix

I, pages 71-76 (in part);

and the following portions of Federal Rules of Civil

Procedure, Rule 34; set out in the Appendix to this petition as

Appendix G, pages 67-68 (in part);

and the following portions of Federal Rules of Civil

Procedure, Rule 37; set out in the Appendix to this petition as

Appendix H, pages 69-70 (in part).

STATEMENT OF THE CASE

Stephanie S. Acton lives in mostly rural Preble

County, Ohio, population around 43,000, about two miles

west of the county seat, Eaton. In the mid 1990’s, Ms. Acton

was employed in Eaton at Defendant Parker-Hannifin

Corporation. She was employed by Defendant City of Eaton

as a volunteer certified Emergency Medical Technician. Ms.

Acton has a genuine desire to help people in need.

Unbeknownst to Ms. Acton, also in the mid 1990's,

Wilfred Dues was also a resident of Preble County and

functioned as a judge. Unbeknownst to Ms. Acton, Dues had

established a foundation that he named Defendant Preble

County Youth Foundation, Inc., a foundation wherein he

functions as president. Presumably one would believe that he

has a genuine heart for the youth of this community.

In 1997, while operating industrial machinery known

as “chuckers” at the Eaton Parker-Hannifin, Ms. Acton was

subjected to breathing in contaminated expelled compressed

air (industrial violations covered in Ohio Revised Code,

Section 3704, refer to Appendix J page 78).

Ms. Acton became sick and sought treatment from

Defendant Dr. Mark Vosler for her first and only time in her

life. Her regular physician was out of town. Ms. Acton’s

symptoms apparently stemmed from an industrial air quality

issue addressed in ORC 3704, regulated by the Occupational

Safety and Health Administration (OSHA), Ms. Acton

documented about her injury on a Defendant Parker-Hannifin

Corporation insurance form specifically used to reimburse

Ms. Acton for missed wages. Then Ms. Acton submitted it to

Dr. Mark Vosler’s nursing assistant/receptionist for

processing.

Meanwhile, unbeknownst to Ms. Acton, Defendant

Judge “Bill” Dues had been meeting with officials of

Defendant City of Eaton, including Defendant Dave Daily

and Rick Daily, both formally of Daily and Hake Realtor,

Inc., as well as officials of Defendant Preble County,

including the Board of Commissioners. Defendant Wilfred

Dues would occasionally give report at public meetings.

Unbeknownst to Ms. Acton, Defendant Judge “Bill”

Dues was putting forth extensive effort to pull together a

multi-million-dollar-long-term-local-tax-revenue-increasing-

money-making-business-plan/deal that also included

Defendant Preble County; Defendant City of Eaton;

Defendant real estate business, Preble County Medical

Center; Defendant Dr. Allen Ferguson; and Dr. Mark Vosler,

as well as the Dayton, Ohio, Chapter of the Y.M.C.A.; land

contributor, John and Eleanor Hake, formally of Daily and

Hake Realters, Inc.; Kettering Medical Center Network, and

Defendant Parker-Hannifin Corporation among others.

Meanwhile on July 19,1997, after only signing and

dating the physician’s portion of the insurance form, rather

than completing the documentation and properly processing

that insurance form, Defendant Dr. Mark Vosler chose to

give it back to representatives of self insured Defendant

Parker-Hannifin Corporation.

Having served over 20 years as Preble County

Medical Commissioner, surely Defendant Dr. Mark Vosler

would be in the know of OSHA regulations and state laws

related to OSHA regulations. Dr. Mark Vosler made a

calculated choice to conspire with Parker-Hannifin

Corporation, entered into complicity with Parker, and

committed insurance fraud by not involving himself with

OSHA violations that could be detrimental to his/their

personal financial future as it related to Defendant Judge

“Bill” Dues multi-million-dollar-long-term-local-tax-

revenue-increasing-business-plan/deal.

Subsequently, on July 25, 1997, Defendant Jenny

Haddux, Parker-Hannifin Insurance Specialist, and Bill

Fackson, department manager, allowed Ms. Acton to view

that particular form dated July 19, 1997 and proceeded to |

threaten Ms. Acton, insisting that she submit yet another

form to Defendant Dr. Mark Vosler, one that would not

potentially prompt an O.S.H.A. investigation.

Ms. Acton was extremely intimidated, so she

complied with their illegal demand.

Defendant Dr. Mark Vosler not only signed and dated

the fraudulent form as July 28, 2001, but he also completed

the physician’s portion of the form before resubmitting it to

- Defendant Parker-Hannifin’s Insurance Specialist, Defendant

Jenny Haddux who then processed the fraudulent form.

If not for the illegal actions of insurance fraud,

conspiracy to commit insurance fraud, complicity and

conspiracy to cover-up the insurance fraud, both

* independently and jointly with other defendants, by

Defendant Jenny Haddux an agent of Defendant Parker-

Hannifin Corporation, Ms. Acton would not have suffered

injury provable and commencing on or about March 8, 2001,

and continuing to this day because of her/Parker’s illegal

actions.

But for the illegal action of choosing to participate in

industrial-insurance fraud, conspiring to commit insurance

fraud, complicity and conspiring to cover-up insurance fraud,

rendering void Defendant Dr. Mark Vosler’s claim of

immunity as an official of the county, thereby rendering him

accountable for any civil complaints and subsequent financial

responsibility for Ms. Acton’s suffered injury, provable and

commencing on or about March 8, 2001, and continuing to

this day because of his illegal actions.

Further, unbeknownst to Ms. Acton, Defendant Dr.

Mark Vosler not only had a vested interest in real estate

business, Defendant Preble County Medical Center, but for

20 years he has functioned as Preble County Health

Commissioner, he would clearly have been involved with the

business meetings of the county. Clearly, he would have

known about the stipulations contained within the Enterprise

Zone tax shelter contracted by Defendant Parker-Hannifin

Corporation, wherein Parker agrees to be “a good citizen”

while residing in Defendant Preble County. Self-insured

industries that intentionally violate OSHA regulations and

submit fraudulent insurance forms to themselves by way of

threatening extortion are not very good community citizens,

now are they? :

Further, Defendant Dr. Mark Vosler became married

to Peggy Hake, thereby marrying into the family of John and

Eleanor Hake who were previous commissioners for

Defendant Preble County, who were formally of Daily and

Hake Realtor, Inc., but they also provided the initial 3 acres

of land for Defendant Judge “Bill” Dues multi-million-

dollar-business plan/deal, a plan of which Defendant Dr.

Mark Vosler and his wife are also a party.

About a month later, Ms. Acton was horrified to hear

that a young man had received mutilating injury to his head

as it was smashed by a hydraulic press at another Defendant

Parker-Hannifin Corporation shop in Defendant Preble

County. The hearsay was that there was no safety stops on

the machine, a violation regulated by OSHA. Not using

safety precautions and safety equipment was a common

Defendant Parker-Hannifin practice that saved operating

time, thus increasing the numbers as it pertained to

production efficacy. This method of crunching numbers,

although unsafe for employees, looks good on paper for the

stockholders and benefits management and _ blue-collar

workers wherein bonuses and profit sharing are concerned.

OSHA has it on record where Defendant Parker-

Hannifin has been fined for this type of dangerous machining

practice, the lack of safety stops and “lock-out-tag-out”.

Because Ms. Acton was distraught, having

participated in something illegal, Ms. Acton reported the

9 a

fraud to O.S.H.A. They said that she would-need to report it

to the prosecuting attorney; Ms. Acton reported the fraud to

the Department of Insurance for the State of Ohio. They said

that she would have to report it to the local prosecuting

attorney; Ms. Acton spoke to a representative of Workers’

Compensation. They told her to report it to the local

prosecutor; Ms. Acton talked to a few union representatives.

They told her that she would need to report it to the local

prosecuting attorney. (Here’s a hoot! By phone conversation,

Ms. Acton reported it to former Ohio Representative Gene

Krebs, formally a Defendant Preble County commissioner.

He said to report it to state agencies). Refer to Appendix_J,

page 77-78.

Because Ms. Acton had always been totally

uninterested in politics, Ms. Acton had to inquire as to

exactly who was the Preble County Prosecutor and the City

of Eaton Attorney. Further, she spent some time in the local

library reviewing through some of the Ohio Revised Code.

Ms. Acton discovered ORC Section 4113.52

pertaining to employees reporting violations of state and

federal law; refer to Appendix J, pages 77-79.

Ms. Acton not only reported the circumstances of the

insurance fraud to Defendant Jeff Beier, Plant Manager of

Defendant Parker-Hannifin and Vicki Volkerding, secretary

to Defendant Wayne Pinkstaff, but Ms. Acton also reported

the fraud to Defendant Preble County Prosecutor Rebecca

Ferguson, as well as, Defendant Eaton City Attorney, John

Petry, just as written in ORC.

Unbeknownst to Ms. Acton, Defendant Judge “Bill”

Dues’ multi-million-dollar-long-term-local-tax-revenue-

increasing-money-making-business-planning/dealing was

coming along marvelously. Defendant Jeff Beier of

Defendant Parker-Hannifin would become vice-president of

Defendant “Bill” Dues’ Defendant Preble County Youth

Foundation.

Quite some time had elapsed and Ms. Acton received

no written communications, hence if not for the action of

calculated disinterest, conspiracy to act disinterested,

complicity and conspiracy to cover-up insurance fraud,

independently and jointly, by Defendant Parker-Hannifin

Corporation, Defendant Jeff Beier, Defendant Wayne

Pinkstaff, Defendant Rebecca Ferguson and Defendant John

Petry, and conspiring to be disinterested in violations of ORC

4113.52(A){1)(b) and (A)(2) and (A)(3), as it appears in

Appendix J, on pages 77-79, Ms. Acton would not have

suffered injury, provable and commencing on or about March

8, 2001.

However, in the meantime, Ms. Acton went out of her

way to discover and talk to other employees of Defendant

Parker-Hannifin who were also instructed as to how to fill

out insurance forms with respect to avoiding Workers’ Comp

claims and/or OSHA involvement. Ms. Acton went as far as

to submit advertisement on the local cable t.v. network. Ms.

Acton did receive response, but they “don’t want to get

involved” voluntarily. They fear harassment from

management and losing their job, their very livelihood.

In 1998, during an OSHA investigation requested by

Ms. Acton, at the Eaton shop, Ms. Acton was transferred

from Defendant Parker-Hannifin’s Eaton shop to their

Lewisburg shop, also in Defendant Preble County. Refer to

Appendix J, page 79.

- In 1999, yet another industrial maiming resulted from

an incident at Defendant Parker-Hannifin Corporation. A

man was required by management to clean plating tanks

using the unsafe production increasing, number crunching

method. He slipped into a drum of nasty corrosive plating

chemicals that resulted in the cooking of his flesh to the point

of it “pooling around his ankles”, a quote from Caro] Mann, a

fellow Eaton EMT who was a member of the crew that

responded to that 911 call.

Ms. Acton became overwhelmed with grief and

feelings of guilt. “My God,” she thought, “I have a heart to

help people, yet in some indirect way, I had contributed to

Parker-Hannifin avoiding O.S.H.A.”. The irony was that Ms

Acton, volunteering as an EMT for Eaton, responded to the

911 call for help from Parker employees, yet submitted a

fraudulent insurance form, indirectly giving rise for the

potential of them getting hurt in the first place!

By this time, Ms. Acton’s “nerves” were worn very

thin, hence she was-then-treated by her family physician,

Defendant “Doc” Allen Ferguson. After Ms. Acton confided

in detail to him about the fraudulent insurance form and how

it involved Defendant Dr. Mark Vosler and Defendant

Parker-Hannifin. Ms. Acton told him that the Defendants

Preble County Prosecutor Rebecca Ferguson, the City

Attorney John Petry, and Parker-Hannifin management did

absolutely nothing about it following Ms. Acton’s

submission of her complaint. Ms. Acton told “Doc” about the

one too many preventable “accidents” at Parker.

Defendant Dr. Allen Ferguson prescribed medication

to treat depression and anxiety and ordered that she not work

for a period of time as written on a slip of paper and given to

Defendant Jenny MHaddux, Parker-Hannifin Insurance

Specialist. Defendant Parker-Hannifin fired Ms. Acton for

the reason of “no call, no show”, while on “Doc’s” medical

leave of work duties in September 1999. (ORC 4113.52 in

Appendix J, page 79.

Ms. Acton was totally oblivious of Defendant Judge

“Bill” Dues’ continuing multi-million-dollar-long-term-local-

tax-revenue-increasing-money-making-business-

planning/dealings as the founder of Defendant Preble County

Youth Foundation, moreover, Ms. Acton was completely

unaware of who this “Bill” Dues was in the first place! Her

only knowledge of the business politics of Eaton or Preble

County was that she volunteered as an EMT

Ms. Acton worked as a crewmember for the 2000

Census. It was then when Ms. Acton shared her story with

another census crewmember, Betty Shelton, a life long

resident of Preble County. Betty said, “Stephanie, don’t you

know that your former doctor, old man Harold Ferguson and

Preble County Prosecutor “Becky” Ferguson are brother and

sister? That makes your current “Doc” Allen her nephew.”

After the census job ran out, Ms Acton was hired by

D & D Driving School, owned by Sharon R. Postigo, 3125

Wilmington Pike, Kettering, Ohio, 45421, 937-294-7206.

Ms. Acton was trained and became certified by the State of

Ohio as a driving instructor in August 2000.

Moreover, now that Ms. Acton was aware that her:

long time family physician Defendant “Doc” Allen Ferguson

was intertwined in this mess to a degree, Ms. Acton got back

to her desire of trying to “right a wrong”. Her greatest fear

and concern was that some one would eventually die at

Parker-Hannifin simply because there was clearly an agenda,

one that was well hidden, that one too many local officials

and their relatives appear to be a part of!

Ms. Acton spent some time at the courthouse pulling

records, asking questions, and requesting copies of records.

Ms. Acton noted eyebrows raising, whispering, and heads

shaking. Apparently, to request copies of and to review

public documents, especially when “officials” are zeroed in

on, is not the norm and is not appreciated in Preble County.

Once again, Ms. Acton contacted Defendant City

Attorney, John Petry, and Defendant Preble County

Prosecutor, Rebecca Ferguson, this time by certified written

correspondence so as to document her efforts. At this point,

Ms. Acton knew that the chances of them doing the right

thing were slim to none. However, giving them yet another

opportunity to do the right thing seemed to Ms. Acton to

somehow have merit.

Ms. Acton received no response, hence, Ms, Acton

suffered injury, provable and commencing on or about March

8, 2001, due to the act of disinterest and the illegal acts of

conspiracy and complicity to cover-up insurance fraud, by

Defendant Preble County, agent Defendant PC Prosecutor

Rebecca Ferguson, Defendant City of Eaton, and agent

“Defendant City Attorney John Petry, imate ¢ and

jointly with other defendants.

By late 2000 and early 2001, Ms. Acton contacted

Ohio Workers’ Compensation and reminded a representative

of her past conversations with them. The representative did,

indeed recall the circumstances and suggested, “Since you

have not submitted a claim to Workers’ Comp for the

incident in July 1997, why not submit one now?” Ms. Acton

was no longer employed with Defendant Parker-Hannifin,

however the representative said that it wouldn’t matter.

“Workers Comp will probably deny your claim, but it will

give you opportunity to get it on record. You can appeal to

the Ohio Industrial Commission.”

By this time Ms. Acton was fed up with living in this

community, not because the community isn’t a great place to

live and raise kids, but because of the apparent corrupt

business practices of the officials who seemingly control

Defendant Preble County rather than serve Preble County

residents.

In December 2000, on the weekends, Ms. Acton

began attending Southern State Community College, 1850

Davids Drive, Wilmington, Ohio, 45177, 937-382-6645, to

acquire the training and experience of driving “big rigs”. This

would give Ms. Acton an outlet to leave the area, yet come

back intermittently to be with her family, friends, and attend

her home church.

Ms. Acton’s main instructor was Ed Mullins, who

now functions as Training Manager. He formerly worked for

‘Schneider Truck Leasing as a training specialist who assisted

in the design of Schneider’s safety protocols.

Meanwhile, also occurring in early 2001,

unbeknownst to Ms. Acton, Defendant Judge “Bull” Dues’

multi-million-dollar-long-term-local-tax-revenue-increasing-

money-making-business-planning/dealings were getting

closer to becoming reality.

In February 2001, Ms. Acton filed her claim with

Workers’ Comp as it pertained to her injury in July of 1997.

By the end of February, Workers’ Comp sided with Parker

and her claim was denied, of course. However, Ms. Acton’s

intent was the appeal for a hearing before the Ohio Industrial

Commission, which she immediately filed, once again

putting the Defendant Parker-Hannifin issue on yet another

public record.

The Industrial Commission sent notice to Ms. Acton

and Defendant Parker-Hannifin announcing the hearing that

would be at the beginning of April 2001.

Defendant City of Eaton hired a new police chief

named Defendant Phillip Romeo at the beginning of 2001.

Ms. Acton thought that she would give this new police chief

an opportunity to do the right thing and truly investigate. Ms.

Acton went to the police station and admitted to her part in

insurance fraud of a federal degree; she even submitted

proof. Ms. Acton desired to be charged in some way, not

because she was “crazy”, but because Ms. Acton wanted to

get this illegal mess documented in a courtroom. Ms. Acton

not only admitted to taking part in insurance fraud, but she

had documents that verified the existence of two insurance

forms, thus proving the fraud that transpired involving

Defendant Dr. Mark Vosler, Defendant Parker-Hannifin, and

victim, Ms. Acton.

Ms Acton had the proof in the form of copies of the

two insurance forms because she had previously gone to

Defendant Dr. Mark Vosler’s office and requested copies of

her entire file. Having been treated by him only once, there

wouldn’t be much in it, but thank God, the file also contained

copies of both insurance forms.

Violating what are now known as HIPPA regulations,

Dr. Vosler’s medical receptionist did not check Ms. Acton’s

ID, nor did she have Ms. Acton sign an authorization to

release the record. However, Ms. Acton walked out of his

office with a copy of that record in hand. Ms. Acton began to

wonder if anyone in Preble County or Eaton respects state

and federal laws!

In February 2001, Ms. Acton was a student on the

weekends and a driving instructor through the week, giving

little time for her volunteer EMT position. Ms. Acton

informed Eaton Emergency Squad Captain Marsha

Stonecash, that she would have to be taken off of scheduling

for a period of time.

Defendant Police Chief Romeo’s response to Ms.

~ Acton’s complaint/admission to guilt was to get into Ms.

Acton’s personal face/space and smugly inform Ms. Acton

that he “personally investigated and there was nothing to it”.

Ms. Acton became instantly angry and said something like,

“How did you pull that off without a court order to release

my medical file to you? I sure as hell didn’t sign an

authorization to release it! I guess I°ll have to file a complaint

about that too. Should I file it with you or “Aunt Becky”?

Defendant Chief Phillip Romeo got red faced and obviously

very angry. Evidently Ms. Acton knew more about the Ohio

laws than he had anticipated. He threateningly requested that

Ms. Acton leave the City Building, so she promptly walked

out.

Ms. Acton then realized that she was employed by the

City of Eaton, which by definition is a business. So, Ms.

Acton once again followed ORC. 4113.52 (Refer to

Appendix J, pages 77-79).

Ms. Acton personally filed a complaint to the City

Manager, Defendant Dave Daily, and the Mayor, Defendant

Pat Taylor. Ms. Acton informed them that Chief Romeo

claims to have seen Ms. Acton’s medical file without a legal

authorization. Furthermore, Ms. Acton presumed a degree of

corruption within the city and county that she verbalized to

both Daily and Taylor.

Unfortunately, unbeknownst to Ms. Acton, Eaton

City Manager, Defendant Dave Daily, formerly of Daily and

Hake Realtors, Inc. and City Mayor Defendant Pat Taylor,

treasurer of Defendant Judge “Bill” Dues’ Defendant Preble

County Youth Foundation, both were very much in the loop

with the Defendant Judge “Bill” Dues multi-million-dollar-

long-term-local-tax-revenue-increasing-money-making-

business-plans/deals.

Because of the act of disinterest, the act of conspiracy

and complicity to cover-up insurance fraud, the act of

conspiracy and complicity to cover-up corruption within both

Preble County and the City of Eaton, the act of participating

in the cover-up of insurance fraud and corruption,

independently and jointly with other defendants by

Defendant Dave Daily, Ms. Acton ‘suffered injury, provable

and commencing on or about March 8, 2001, and continuing

to this date because of Dave Daily’s illegal actions.

Because Defendant Pat Taylor threatened Ms. Acton

to keep her mouth shut, or else he would “personally see to it

that the city take [you} through that courthouse that-[you’re]

so worried about”, Ms. Acton followed formal procedures for

speaking at a public city council meeting.

Because of the illegal act of threatening Ms. Acton to

keep her mouth shut, thereby inducing fear to deny Ms.

Acton’s right to the first amendment, because of the act of

disinterest, because of participating in the act to cover-up

insurance fraud, because of participating in the act to cover-

up corruption within the business of both Preble County and

City of Eaton, because of the act of conspiracy and

complicity to cover-up both insurance fraud and corruption,

by Defendant Pat Taylor, both independently and jointly with

other defendants, Ms. Acton suffered injury, provable and

commencing on or about March 8, 2001, continuing to this

day because of Pat Taylor’s illegal actions.

Once again following ORC. 4113.52, Ms. Acton then

went to her immediate Eaton EMS supervisor, Marsha

Stonecash, and told her the whole story. Ms. Acton further

informed Chief Marsha Stonecash that she intended to

officially resign on February 20th, 2001, during the monthly

public meeting of Eaton City Council.

Defendant Mayor Pat Taylor allowed only 5 minutes

for Ms. Acton to speak, Ms. Acton complied and condensed

the story. Ms. Acton publicly announced that she was

threatened and that she would submit a complaint with

Defendant Preble County Sheriff fom Hayes, which she did.

Ms. Acton truly expected Dr. Mark Vosler or Parker-

Hannifin or someone to file a complaint of slander or libel as

a result of Ms. Acton vocalizing that she had documents, but

that ramification is not what happened.

What did happen completely blindsided Ms. Acton,

as well as the numerous pertinent persons in Ms. Acton’s

life, all of whom, if given the opportunity by this court, will

by subpoena or willful testimony, testify as to the sound and

stable mental stability of Ms. Acton as they each one

witnessed at that time in February-March of 2001.

As an employee of D & D Driving School, Ms. Acton

was responsible for the lives of many youth of Preble and

Montgomery County’s, hence owner, Sharon Postigo had a

vested interest in being constantly aware of the mental status

of Ms. Acton. Sharon Postigo was never given opportunity to

testify on Ms. Acton’s behalf because Defendant Judge

“Bill” with-a-multi-million-dollar-plan Dues, never afforded

Ms. Acton the due process of ORC 5122.12 as it appears in

Appendix I, on pages 74-75.

As a commercial driving student of Southern State

~ Community College, who not only drove a training semi with

cargo weighing thousands of pounds, but she drove it over

Ohio highways where other motorists could have potentially

been hurt or killed, if indeed, Ms. Acton was truly

“homicidal, suicidal, or delusional”. Training Manager, Ed

Mullins, had a vested interest in being constantly aware of

the mental status of Ms. Acton, yet he was never afforded the ©

opportunity to testify on Ms. Acton’s behalf because

Defendant Judge “Bill” with-a-multi-million-dollar-plan

Dues never allowed Ms. Acton the liberty of due process

contained in ORC 5122.12. Refer to Appendix I,pages 74-75.

Ms. Acton has attended Christ Cathedral of 51 Best

Street, Dayton, Ohio 45401, 937-223-8505, for several years.

Dr. Leon Stutzman is Ms. Acton’s pastor. He has a vested

interest in Ms. Acton’s mental status, yet he was never given

opportunity to testify on Ms. Acton’s behalf because

Defendant Judge “Bill” with-a-multi-million-dollar-plan

Dues never afforded Ms. Acton the due process of ORC

5122.12. Refer to Appendix I, pages 74-75.

As an EMT employed by the City of Eaton, Captain

Marsha Stonecash had a vested interest in Ms. Acton’s

mental status, yet Mrs. Stonecash was never given

opportunity to testify on Ms. Acton’s behalf because

Defendant Judge “Bill” with-a-multi-million-dollar-plan

Dues never afforded Ms. Acton the due process of ORC

5122.12. Refer to Appendix I, pages 74-75.

Ms. Acton’s family physician, Defendant “Doc”

Ferguson professionally, ethically, and morally had a vested

interest in Ms. Acton’s mental status, and according to his

lawyer, he “didn’t want to get involved”, especially during

Ms. Acton’s illegal detention. (No wonder! Gee, I’d hate to

have to be honest and testify for the benefit of Ms. Acton

when she unknowingly is in pursuit of keeping me(“Doc”)

from my millions that “Bill” Dues will make for me and my

associates!)

If not for the act of blatant disinterest, the act of

conspiring and complicity to cover-up the mental stableness

of Ms. Acton, participating in the act of covering-up Ms.

Acton’s mental stableness, by Defendant Dr. Allen Ferguson,

independently and jointly with other defendants, Ms. Acton

suffered injury, provable and commencing on or about March

8, 2001, and continuing to this day due to his illegal actions.

Ms. Acton’s close friends and family had/has a vested

interest in Ms. Acton’s mental status, yet they were never

given opportunity to testify on Ms. Acton’s behalf because

Judge “Bill” with-a-multi-million-dollar-plan Dues never

afforded Ms. Acton the due process of ORC 5122.12. Refer

to Appendix I, pages 74-75.

Apparently Defendant Eaton’s new Defendant Police

Chief Phillip Romeo, who Ms. Acton publicly announced

was corrupt and violated ORC and Federal confidentiality

laws, went to Defendant Judge “Bill” with-a-big-plan Dues,

or maybe Dues went to the chief, regardless, Defendant

Romeo submitted an affidavit of mostly lies, falsely alleging

that Ms. Acton was “homicidal, suicidal, delusional, and

possessed strong religious beliefs”, and therefore a danger to

herself and the community. Ms. Acton had/has a strong

relationship with God of the Bible, however, Ms. Acton was

not homicidal, suicidal, or delusional.

As previously mentioned, Defendant Romeo’s choice

to conspire with all other Defendants, to enter into complicity

and to submit a false affidavit to protect Defendant Judge

“Bill” with-a-big-million-dollar-plan Dues, effectively

forfeited his immunity as a police officer and disgraced his

military uniform as well, thereby forfeiting his/their claim to

protection by the Soldier’s and Sailor’s Act.

Actually, Ms. Acton believes that Defendant Judge

“Bill” with-a-multi-million-do!lar-plan Dues called a meeting

of all the other Defendants, in one form or another, and they

all entered into complicity and contributed to his new

emergency plan of shutting Ms. Acton’s mouth, and

defaming her for the purpose of discrediting her testimony as

it pertains to the now needed protection of Defendant Judge

“Bill” and-all-others-with-the-multi-million-dollar Dues’

plan.

Further, Defendant Judge “Bill’ with-a-new-

emergency-plan Dues has many years of expertise in the

legal system as it pertains to forensic hospitals for the

criminally insane. Defendant Judge “Bill” with-a-plan Dues

presumed that Ms. Acton would suffer a degree of mental

and emotional stress. Moreover, he was fully aware that the

odds of Ms. Acton being physically assaulted, raped, or

killed were greatly increased while detained at TVPS’

Forensic Hospital on co-ed ward 53 wherein housed the

criminally insane.

The main assault is that to secure his huge multi-

million-dollar-long-term-local-tax-revenue-increasing-

money-making-business-plan/deal, and to protect his fellow

Defendant business associates from Ms. Acton’s truthful

allegations, Defendant Judge “Bill” now-I-got-a-new-

emergency-plan Dues made a calculated decision to illegally

manipulate ORC and abused the power and authority of his

judicial robe, thereby forfeiting his immunity as a judge.

After all, who would dare to question his authority or

integrity, he wears a judicial robe! (Refer to parts of Canon 3,

Appendix E, pages 62-65.)

As previously noted, neither Ms. Acton nor her

immediate family, friends, pastor, instructor, or bosses, nor

Ms. Acton’s choice of legal representative were given notice

of any hearings pertaining to Ms. Acton, a direct and

calculated denial of due process by Defendant Judge Dues,

notice that is provided under ORC 5112.12.

Why did Dues skip this part of the ORC? He

intentionally skipped that part of Ms. Acton’s due process

because he knew Ms. Acton was not “crazy” and would, no

doubt prove it. Besides, he didn’t want any court records

containing the truth of the matter at hand now. He has money

to make: he can’t risk doing things legally at this point!

To create a basis to attack Ms. Acton, Defendant |

Judge “Bill” Dues and other Defendants arranged for

documentation from Defendant Parker-Hannifin and all of

the top officials of Defendant Eaton and Defendant Preble

County, including a fax that amounted to a contribution of

hearsay from Defendant Preble County Prosecutor Rebecca

Ferguson.

As. previously mentioned, Defendant Ms. Ferguson

made a calculated choice to conspire with the cover-up of

Defendant Judge Dues’ plan, Defendant Rebecca Ferguson

made a calculated choice to conspire with Defendant Parker-

Hannifin to keep Ms. Acton from attending fhe scheduled

hearing before the Ohio Industrial Commission. Defendant

Ms. Ferguson conspired with Defendant members of

Defendant Preble County Medical Center to aid in the

protection of her family’s future multi-million dollar

investment.

To further assault and cause injury to Ms. Acton,

Defendant Rebecca Ferguson’s long history of expertise with

issues of mental illnesses, forensic hospitals, and the legal

system, all afforded Ms. Ferguson the knowledge that to

illegally detain Ms. Acton, with a sound mind, and to

illegally lock Ms. Acton behind secured doors with the

criminally insane, would potentially cause Ms. Acton much

emotional distress and could very well induce serious mental

disorder. Further, Defendant Rebecca Ferguson’s experiences

as an expert also gave her the knowledge that Ms. Acton

~ could very well have been physically assaulted, raped, or

even killed.

If employees of hers, or anyone else in the courthouse

truly had cause to believe Ms. Acton to be “crazy” as “Aunt

Becky” claimed in her memorandum, why did they not

personally give affidavit or deposition? Answer: Because no

one had reason to believe Ms. Acton to be of unsound mind,

after all, because they worked in the courthouse they more _

than chance, knew about the big Dues’ plan and “didn’t want

to get involved”.

Ms. Acton would like to point out at this time that

Honorable Ferris of the Sixth Circuit Court in Cincinnati,

Ohio, made comment pertaining to Defendant Rebecca

Ferguson’s memorandum, wherein he states that Ms. Acton

displayed “ABERRANT BEHAVIOR”. (Refer to Appendix

A, pages 31-36. He apparently came to that false conclusion

while making his decision based upon the clearly undeserved

merit that Ms. Ferguson is/was a prosecutor, combined with

his obvious preconceived notion that Ms. Acton -is/was

“crazy”, just as Defendant Rebecca Ferguson alleges within

her hearsay memorandum. Ms. Acton strongly objects to

Honorable Ferris’ presumption.

Defendant City Attorney John Petry, also a member

of this elaborate conspiracy, actually entered into complicity

and held a meeting in his office wherein Defendant Dave

Daily and Defendant Police Chief Romeo were in attendance.

Further, Defendant Wayne Pinkstaff clearly requested to

keep abreast of the results of that particular meeting,

wherein, the subject matter was pertaining to Defendant

Parker-Hannifin Corporation and Ms. Acton’s apparent

agenda.

Defendant Judge “Bill” with-an-emergency-plan

Dues included proof of this meeting among the other

documents he used to put Ms. Acton away, on ward 53 of

TVPS wherein the criminally insane are housed!

Furthermore, to add more insult to injury, Defendant

Judge “Bill” Dues involved Defendant Preble County’s

Board of Mental Health and arranged for a psychologist,

Deiendant Lori Marcellino, who had never even so much as

met Ms. Acton, let alone personally evaluate Ms. Acton, to

give false affidavit including sworn testimony wherein she

echoed Defendant Police Chief Romeo’s lies and

fabrications, requesting Ms. Acton to be hospitalized at

Defendant Twin Valley Psychiatric Systems at Dayton in

Defendant Montgomery County.

Further, Defendant Judge “Bill” with-an-emergency-

plan-to-protect-his/our-multi-million-dollar-money-making-

tax-revenue-increasing-business-plan/deal Dues only

considered testimony from psychologist, Lori Marcellino,

when ORC 5122.11 on page 73 of Appendix I also requires a

Medical Doctor opinion to legally hospitalize someone for

involuntary evaluation.

Because she is expert, Defendant Lori Marcellino was

fully aware of the potential for mental suffering, emotional

stress, the inducing of Adjustment Disorder, not to mention

the increased possibility of physical injury, rape, or even

potential death, that Ms. Acton could receive resulting from

this malicious fabrication to iivoluntarily hospitalize Ms.

Acton in a state forensic hospital for the criminally insane.

If not for the acts of conspiracy and complicity to

cover-up insurance fraud, the acts of conspiracy and

complicity to cover-up corruption within Preble County and

the City of Eaton, the acts of covering-up insurance fraud and

corruption, the act to maliciously support the untruths that

Ms. Acton was criminally insane, the acts of conspiracy and

complicity to support the malicious untruth that Ms. Acton

was criminally insane, the conspiracy, the act of entering into

complicity, and the act to prevent Ms. Acton from appearing

at the hearing before the Ohio Industrial Commission in

April 2001, the conspiracy and: the act of entering into

complicity to illegally hospitalize Ms. Acton within a

forensic hospital for the criminally insane, to act in such a

way as to illegally hospitalize Ms. Acton in a forensic

hospital for the criminally insane, the conspiracy and the act

of entering into complicity to illegally place Ms. Acton in

physical and mental harm’s way, the act to place Ms. Acton

in physical and mental harm’s way, Ms. Acton did indeed

suffer injury, provable and commencing on or about March

8, 2001, by acts both independent and jointly with other

defendants, acts committed by Defendant Chief Phillip

Romeo, Defendant Dave Daily, Defendant John Petry,

Defendant City of Eaton, Defendant Preble County,

Defendant Sheriff Tom Hayes, Defendant Prosecutor

Rebecca Ferguson, Defendant Parker-Hannifin Corporation,

Defendant Wayne Pinkstaff, Defendant Jenny Haddux,

Defendant Samaritan Behavioral Health, Defendant Dr. Lori

Marcellino, and last be not least Defendant Judge Wilfred

Dues with a huge plan to protect.

Ms. Acton was illegally detained on March 13, 2001.

Ms. Acton had to reschedule her March 14th nieeting in

Columbus with a representative of the Ohio Ethics

Commission, as well as her hearing before the Industrial

Commission against Defendant Parker-Hannifin Corporation

at the beginning of April, both while detained in a state

hospital for the criminally insane.

To add further assault and injury, while detained

within the jurisdiction of Defendant Montgomery County,

Ms. Acton did not receive completed hearing from her date

of detention, March 13, 2001, until April 5, 2001. Ms. Acton

was effectively illegally incarcerated for three and a half

weeks, because of the untrue and illegally documented

witness testimony of fictitious symptoms, as well as expert

diagnosis stemming from those illegal and untrue

documented fictitiously witnessed symptoms, symptoms that

would make it appear that Ms. Acton was criminally insane.

For Ms. Acton to be detained for three and a half

weeks without a completed hearing by Defendant

Montgomery County’s Defendant Judge George Gounaris, is

yet another denial of legitimate due processes of ORC

5122.14] on pages 76-77 of Appendix I.

Are these denials of legitimate due process, by both

Preble County jurisdiction and Montgomery County

Jurisdiction, mentioned thus far, used to deny only Ms.

Acton her Constitutional rights, or are these denials of

Constitutional rights the norm for those who are allegedly

criminally insane and in presumed need of involuntary

hospitalization for evaluation?

If not for the blatant acts and conspiracies of those

Defendants residing in Preble County as mentioned thus far,

conspired and entered into complicity to independently and

- jointly, illegally act in such a way by each one of the Preble

County residing defendants addressed thus far, Ms. Acton

would not have been injured and therefore would not have

suffered, provable and commencing on or about March 8,

2001, and continuing to this day.

With no assistance from any agent of Defendant

Montgomery County; without any assistance from any agent

of Defendant Twin Valley Psychiatric System of Dayton,

Ohio, in Montgomery County, Ms. Acton was finally able to

secure professional legal representation, on or about April 2,

2001, who requested the immediate completion of Ms.

Acton’s hearing, further threatening Judge Gounaris with the

filing of a Writ of Habeas Corpus in the Federal Court.

Ms. Acton’s hearing was then immediately

completed. With no substantial proof of mental disorder

warranting hospitalization, Judge Gounaris dismissed the

case and then he expunged the case.

Now fearing to stay in the community of Preble

County, Ms. Acton completed her driving training, obtained

a Commercial Driver’s License, secured a job with Schneider

National Trucking, and effectively hid for nearly two years

on the highways of this great country in an 80,000 pound

| 26

bright orange semi, occasionally hauling freight through

Eaton, stopping to see her family, friends, and attend her

home church.

Ms. Acton and Parker-Hannifin did have a hearing

before the Industrial Commission. The claim was denied,

However, Ms. Acton could then request an appeal hearing in

the Court of Common Pleas in Preble County. Oh, what a

hoot that would have been. No thanks! Ms. Acton was truly

afraid to act on her right to appeal, afraid of what else Prebie

County would put her or her family through.

This Court has access to the complaint that Ms. Acton

filed April 4, 2003. But what this court needs to be aware of

is that Defendant Judge “Bill” Dues’ long-term-money

making-business-dream is now a thriving reality. As a matter

of fact, in the recent March 22, 2005, issue of the Palladium-

Item newspaper, Eaton City Manager, and former agent for

Daily and Hake Realtors, Inc., Dave Daily, gave comments

concerning the business of Eaton.

Apparently, Eaton plans to annex 54 more acres of

Eleanor Hake owned land from Preble County into the City

of Eaton. Real estate business, Preble County Medical

Center, and others of course, are planning to build a hospital

at the site of the newly built, Judge Dues’ planned Y.M.C.A.

Dave Daily further stated, “But that’s a lot of land to not put

much on. Their long term plan is to do something bigger!”

Ms. Acton is presently employed at Trinity Missions

of New Paris, Ohio, 7739 West U.S. 40, 937-437-2311.

Administrator, Randy Blough, personally knows Eaton EMS

Captain Marsha Stonecash, hence, he spoke with her

pertaining to the potential hiring of Ms. Acton. Captain

Stonecash gave a positive referral concerning Ms. Acton,

who was then fingerprinted and employed on March 8, 2004.

And what about Parker-Hannifin? On November 3,

2004, the morning after the elections, a Greenville, Ohio

resident, Steve Nisonger, age 41, was smashed, severed in

half, and dead at Defendant Eaton Parker-Hannifin

Corporation. He was a solo truck driver and was smashed at

the back of his own trailer. He was between it and the

shipping/receiving docks. Possessing a commercial driver’s

license, Ms. Acton presumes the only way he could be

smashed behind his own tractor-trailer is with some human

OSHA violating help, because he surely couldn’t have

smashed himself, given the mechanics of hydraulic and air

brakes.

According to the local paper Defendant Chief Phillip

Romeo and Defendant Prosecutor Rebecca Ferguson secured

the scene at Defendant Eaton’s Parker-Hannifin until OSHA

investigators came to the scene and began their investigation.

(The Honor of this court may contact OSHA at 513-841-

4132, 800-454-0404, or www.osha.gov, and enquire as to the

case number 308367713 pertaining to this death.)

Ms. Acton’s current physician is Dr Shafik Ahmad,

MD. of Family Physicians of Huber Heights, Ohio, 5212

Brandt Pike, Suite C, 937-235-6331. He has been treating

with Ms. Acton since April 2001 soon after Ms. Acton’s

release from TVPS in Dayton. Her current diagnosis is

hypothyroidism; Adult ADD (314.00); Bi-Polar, Type 2,

Hypo-manic-depressive (296.42); and Adjustment Disorder

(309.9), some of which are influenced by both environmental

stressors as well as genetics.

However, Adjustment Disorder (309.9) is the

development of clinically significant emotional or behavioral

symptoms in response to an identifiable psychosocial stressor

or stressors.

Hence, Ms. Acton clearly had these diagnosis to one

degree or another, provable and commencing on or March 8,

2001, however not “homicidal, suicidal, or delusional”. Ms.

Acton did absolutely possess a strong relationship with God

at that time, however, “strong religious beliefs” are not

considered a legitimate symptom of mental disorder.

Dr. Shafik Ahmad prescribes 112 meg. Synthroid,

150 mg. Wellbutrin XL, 80 mg. Strattera, 400 mg. Seroquel

and a low dosage of Lovastatin for cholesterol. Ms. Acton

consults with Dr. Ahmad on a regular basis and stays current

with blood analysis.

_ Ms. Acton is not currently homicidal, suicidal, and is

not currently delusional. Ms. Acton does currently have a

strong relationship with God of the Bible.

Ms. Acton can prove that she was not homicid,

suicidal, and was not delusional on or about March 8, 2001.

Ms. Acton did possess a strong relationship with God, both

then and now.

REASONS FOR GRANTING THE WRIT

In conclusion, Ms. Acton was clearly the victim of

several conspiracies that were intertwined and acted out by

involved Defendants, both independent and jointly with one

another. All designed and carried out to- protect Defendant

Judge Dues’ money-making plan, in which all Defendants

would prosper, either monetarily, or by public recognition, or

by promotion, or a combination there of, by the blatant

intentional demise of Ms. Acton; financially, emotionally,

physically, and geographically.

Ms. Acton clearly suffered as a result of an

outrageously manipulated legal system as it pertains to the

alleged mentally ill. The Constitution, ordaining due process,

was designed to prevent what happened to Ms. Acton, yet in

Preble County, and continuing in Montgomery County Ms.

Acton’s rights were blatantly denied.

The Constitutional provision of due process was

completely ignored by Judge Dues because it interfered with

: 29

“their long term plan”, as well as by Judge Gounaris who

clearly, because of obvious habit, and because he presumed

Ms. Acton to be criminally insane and presumably not

knowing or caring or even being aware of her rights.

Clearly Ms. Acton still has a heart to help people in

general, but specifically the alleged mentally ill, but more

clear is that Judge Dues’ presumed heart for the youth of this

community is over-shadowed by his/their greed for power,

prestige and his/their long-time, long-term planrod

“paycheck”.

(Aren’t officials held to a longer statute of limitations

when they intentionally conduct themselves illegally?)

CONCLUSION

For the foregoing reasons, the Writ for

Certiorari should be granted.

Respectfully submitted,

tad

(‘bh L Pro Se

Goes

Stephanie S. Acton

3045 US. 35 West

Eaton, Ohio 45320

937-456-3731

30 =

APPENDIX A -

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEPHANIE S. ACTON,

Plaintiff-Appellant,

v. ORDER

CITY OF EATON; PREBLE COUNTY;

REBECCA FERGUSON, Preble County

Prosecutor, TOM HAYES, Director;

WILFRED G. DUES, Preble County Court ‘:

of Common Pleas; PREBLE COUNTY

MEDICAL CENTER; MARK VOSLER;

ALLEN FERGUSON; PARKER-HANNIFIN

CORPORATION; WAYNE PINKSTAFF,

Human Resources Manager; JENNY

HADDUxX, Insurance Specialist;

SAMARITAN BEHAVIORAL HEALTH

INC., LORI L. MARCELLINO; PREBLE

COUNTY YOUTH FOUNDATION INC.;

CHRISTOPHER B. WASHINGTON; TOM

HAYES; LESLIE RENNER; PHILLIP ~

ROMEO; DAVE DAILY; JOHN PETRY;

PAT TAYLOR,

Defendant-Appellees.

Before: DAUGHTREY, COOK, and FARRIS,

Circuit Judges.

Stephanie Acton, an Ohio citizen proceeding pro se,

appeals a district court judgment dismissing her civil rights

complaint filed pursuant to 42 U.S.C. 1983. Her appeal has

No. 04-3095

been referred to a panel of this court pursuant to Rule

34(j)(1), Rules of the Sixth Circuit. Upon examination, the

panel unanimously agrees that oral argument is not needed.

Fed. R. App. P. 34(a).

Seeking monetary relief, Acton filed a complaint

against twenty-two defendants raising claims under 1983 and

_ asserting supplemental claims under Ohio law, each related

to her involuntary detention and subsequent psychological

evaluation. In response to the defendants’ various motions to

dismiss and motions for summary judgment, the district court

dismissed each of Acton’s federal claims against all of the

defendants. The district court dismissed with prejudice the

claims against Judge Wilfred Dues, Preble County Clerk of

Courts Christopher Washington, and Preble County

Prosecutor Rebecca Ferguson on the basis of absolute

immunity. The district court dismissed with prejudice the

claims against Tom Hayes, Leslie Renner, Phillip Romeo,

Dave Daily, John Petry, Pat Taylor, Samaritan Behavioral

Health, Lori Marcellino, Mark Vosler, (Harold) Allen

Ferguson, and Preble County Youth Foundation on the

grounds that Acton’s claims were barred by the statute of

limitations. The district court_dismissed without prejudice

Acton’s claims against Parker-Hannifin Corporation (PHC),

Wayne Pinkstaff, and Jenny Haddux for failing to state a

claim upon which relief can be granted. The district court

granted Preble County Medical Center’s unopposed motion

for summary judgment and dismissed with prejudice the

claim against the City of Eaton. Acton filed a timely appeal.

Whether a district court properly dismissed a suit

pursuant to Fed. R. Civ. P. 12(b)(6) is a question of law

subject to de novo review. Gahafer v. Ford Motor Co., 328

F.3d 859,861 (6 Cir. 2003). The court must construe the _

“complaint in the light most favorable to the plaintiff, accept

all the factual allegations as true, and determine whether the

plaintiff undoubtedly can prove no set of facts in support of

No. 04-3095

her claims that would entitle her to relief. Powell v. Jacor

Communications Corporate, 320 F.3d 599, 601-02 (6" Cir.

2003). This court reviews an order granting summary

judgment de novo. Toms v. Taft, 338 F.3d 519, 524 (6" Cir.

2003). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c).

Initially, we note that Acton does not argue that the

district court erred by dismissing her claims against PHC,

Wayne Pinkstaff, Jenny Haddux, and Preble County Medical

Center, where the district court’s judgment was not based

upon the grounds of either immunity or the statute of

limitations. Likewise, Acton does not argue that the district

court erred when it dismissed Acton’s claim against

Christopher Washington on the basis of absolute immunity.

Finally, Acton does not argue that the district court abused its

discretion by declining to exercise supplemental jurisdiction

over the state law claims. Issues raised in the district court

but not on appeal are considered abandoned and not

reviewable on appeal. Enertech Elec.m Inc. V. Mahoning

County Comm'rs, 85 F.3d 257, 259 (6" Cir. 1996).

On appeal, Acton argues: (1) that Tom Hayes,

Rebecca Ferguson, Phillip Romeo, and Judge Dues were not

entitled to immunity; (2) that her claims were not barred by

the statute of limitations; (3) that the district_court cut short

the sixty days she had been granted to ask for records from

the defendants by dismissing her case, and (4) that the district

court should not have dismissed the claims against the City

of Eaton and the related defendants on the basis of the

Soldiers and Sailors Civil Relief Act.

No. 04-3095

Because the district court did not rely upon immunity

grounds in dismissing Acton’s claims against Hayes and

Romeo, this court need only address the district court’s

holding on immunity in relation to Judge Dues and Rebecca

Ferguson. The district court properly concluded that Judge

Dues is entitled to judicial immunity. A judge performing

judicial functions is absolutely immune from suit seeking

monetary damages. Mireles v. Waco, 502 US. 9, 9-10

(1991). A judge will not be immune from suit where: (1) the

judge acts in a non-judicial capacity; or (2) the judge acts in

the complete absence of all jurisdiction. Id. At 11-12. A

judge acts.in the complete absence of all jurisdiction only if a

matter was clearly outside the court’s subject matter

jurisdiction. King v. Love, 766 F.2d 962, 965 (6" Cir. 1985).

All of the alleged acts by Judge Dues are judicial functions

exercised under proper jurisdictional authority, and thus,

judge dues is entitled to absolute judicial immunity.

The district court also properly concluded that

Rebecca Ferguson is entitled to absolute immunity to the

extent that Acton bases her claim upon Ferguson’s refusal to

prosecute the alleged instance of fraud. A prosecutor is

afforded absolute immunity for the decision not to prosecute.

Harrington v. Almy, 977 F.2d 37,41 (1" Cir. 1992).

Acton argues that Ferguson is not entitled to imminity

for the memorandum that she wrote to Chief Romeo

describing Acton’s aberrant behavior. Rather, the court

determined that Acton had failed to produce any evidence

contradicting Ferguson’s affidavit, which stated that she took

no part in the decision to seek Acton’s detainment. The

district court did not err in granting summary judgment to

Rebecca Ferguson on this issue because Ferguson’s

memorandum, by itself, could not establish liability under

1983. See Paul v. Davis, 424 U.S. 693, 711-12 (1976).

No. 04-3095

The district court did not err in determining that a number of

Acton’s claims were barred by the statute of limitations. State

statutes of limitations and tolling principles apply to

determine the timeliness of claims asserted under

1983. Wilson v. Garcia, 47] U.S. 261, 268-69 (1985). For

civil rights suits filed in Ohio under 1983, the statute of

limitations is two years. Ohio Rev. Code Ann. 2305.10;

Browning v. Pendleton, 869,F.2d 989, 992 (6" Cir. 1989) (en

banc). Acton’s claims accrued, at the very latest, on March

13, 2001, the date on which she was detained by court order.

See Collyer v. Darling, 98 F.3d 211, 220 (6° Cir. 1996).

Acton did not file her complaint until April 4, 2003, twenty-

two days after the two-year statute of limitations had expired.

Acton argues that the statute of limitations should be

tolled pursuant to Ohio Rev. Code Ann. 2305.16. Because

Acton argues only that she was confined, not that she was of

unsound mind, the tolling provision is inapposite. See Ohio

Rev. Code Ann. 2305.16; Fisher v. Ohio Univ., 589 N.E.2d

13, 16 (Ohio 1992). Therefore, the district court properly

determined that Acton’s claims were barred by the statute of

limitations.

For her third issue, Acton argues that the district court

cut short her opportunity for discovery. We review a district

court’s decisions concerning discovery matters for abuse of

discretion. Lanier v. Bryant, 332 F.3d 999, 1006 (6 Cir.

2003). Acton has not demonstrated that the district court’s

actions deprived her of information that would disclose

material facts. See id. (“Nebulous assertions that more

discovery time would have produced evidence to defeat

summary judgment will be unavailing.”). Therefore, the

district court did not abuse its discretion.

Finally, Acton argues that the district court

improperly dismissed the claims against the City of Eaton

and related defendants under the Soldiers and Sailors Civil

No. 04-3095

Relief Act in dismissing these claims. Instead the court found

the request for this alternative basis for relief moot. This

argument lacks merit.

Accordingly, we affirm the district court’s judgment.

Rule 34(j)(2)( C ), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed February 4, 2005]

LEONARD GREEN,

Clerk

Circuit Court No. 04-3095

STEPHANIE S. ACTON, PRO SE

Plaintiff-Appellant

VS.

CITY OF EATON; PREBLE COUNTY;

REBECCA FERGUSON, Preble County

Prosecutor; TOM HAYES, Director;

WILFRED G. DUES, Preble County Court of

Common Pleas; PREBLE COUNTY

MEDICAL CENTER; MARK VOSLER;

ALLEN FERGSON; PARKER-HANNIFIN

CORPORATION; WAYNE PINKSTAFF,

Human Resources Manager; JENNY HADDUX,

Insurance Specialist;

SAMARITAN BEHAVIORAL HEALTH, INC.

LORI L. MARCELLINO; PREBLE COUNTY

YOUTH FOUNDATION, INC.;

: CHRISTOPHER B. WASHINGTON; TOM

HAYES; LESLIE RENNER; PHILLIP ROMEO;

DAVE DAILY; JOHN PETRY; PAT TAYLOR

Defendarits-Appellees.

No. 04-3095

ORDER

Plaintiff-Appellant, Stephanie Acton, has filed a

petition for rehearing of his court’s order of December 7,

2004, affirming the district court’s judgment dismissing her

civil rights suit.

Upon careful consideration, this panel concludes that

it did not misapprehend or overlook any point of law or fact

when it issued its order. Fed. R. App. P. 40(a).

The petition for rehearing is thus DENIED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 East Fifth Street, Room 532

Potter Stewart U.S. Courthouse

Cincinnati, Ohio 45202-3988

Stephanie S. Acton, Pro Se

3045 US Route 35, West

Eaton, Ohio 45320

Erin B. Moore

Green & Green

110 N. Main Street

Suite 950 Fifth Third Center

Dayton, Ohio 45402-1769

No. 04-3095

Attorneys Continued

Neil F. Freund, Freeze & Arnold

1 S. Main Street |

Suite 1800 One Dayton Centre

Dayton, Ohio 45402-2017

Christopher W. Carrigg

Freund, Freeze & Arnold

1 S. Main Street

Suite 1800 One Dayton Centre

Dayton, Ohio 45402-2017

Ralph E. Burnham

Montgomery, Rennie & Jonson

36 E. Seventh Street

Suite 2100 Society Center

Cincinnati, Ohio 45202

Robert F Cowdery

Statman, Harris, Siegel & Eyrich

110 N. Main Street |

Suite 1520 Fifth Third Center

Dayton, Ohio 45402

Mark L. Schumacher

Freund, Freeze & Amold

65 E. State Street

Suite 800 Columbus, Ohio 43215

No. 04-3095

Attorneys Continued

Allison McCallum

Spieth, Bell, McCurdy, & Newell

925 Euclid Avenue

Suite 2000 Huntington Building —-

Cleveland, Ohio 44115

John F. Haviland

Bieser, Greer & Landis

6 N. Main Street

Suite 400 National City Center

Dayton, Ohio 45402-1908:

Grey Bennett

200 W. Main Street

Eaton, Ohio 45320

RE: 04-3095

Acton vs. Eaton

District Court No. 03-00116

Enclosed is a copy of an order which was entered

today in the above styled case.

Leonard Green, Clerk

Ms.) Michelle M. Davis

Case Manager

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Case No. C-3- 03-116

STEPHANIE S. ACTON

Plaintiff, Magistrate Judge

VS. Michael R. Merz

THE CITY OF EATON, OHIO, et al

DECISION AND ORDER

This case is before the Court on the following

Motions:

1. Motion of Defendants Parker-Hannifin Corp., Wayne

Pinkstaff, and Jenny Haddux to dismiss or for a more

definite statement (Doc. No. 51);

2. Plaintiffs Motion to Amend (Doc. No. 60);

Defendant Rebecca Ferguson’s Motions for Summary

Judgment (Doc. Nos. 61 & 63);

4. Defendant Preble County Medical Center’s Motion

for Summary Judgment (Doc. No. 64);

5. Defendant City of Eaton’s Motion for a Final

Appealable Order (Doc. No. 73);

6. Defendant Preble County Clerk of Court Christopher

~ Washington’s Motion to Dismiss (Doc. No. 72);

7. Defendant Preble County Sheriff Tom Hayes’ Motion

to Dismiss (Doc. No. 73);

Case No. C-3-03-116.

8. Defendants Samaritan Behavioral Health, Inc, and

Lori Marcellino’s Motion for Summary Judgment

(Doc. No. 73); and

9. Defendants Mark Vosler and Harold Ferguson’s

Motion for Summary Judgment (Doc. No. 76).

Despite notice of the requirements of Fed. R. Civ. P. 56

and of her obligation to respond to these Motions, Plaintiff

has only responded to the Parker-Hannifin Motion to Dismiss

(Doc. No. 59) and Defendant Rebecca Ferguson’s Motion for

Summary Judgment (Doc. No. 71).

The parties have unanimously consented to plenary

magistrate judge jurisdiction under 28 U.S.C. 636(c) and the

case has been referred on that basis (Doc. No. 52).

Motion to Dismiss Standard

The Motions to Dismiss (Doc. Nos. 51, 72, and 73)

were made under Fed. R. Civ. P. 12(b)(6) whose purpose is

to allow a defendant to test whether, as a matter of law, the

plaintiff is entitled to legal relief even if everything alleged in

the complaint is true. Mayor v. Mylod, 988 F. 2d 635, 638

(6" Cir. 1993), citing, Nishiyama v. Dickson County

Tennessee, 814 F.2d 277, 279 (6" Cir. 1987). Put another

way, “The purpose of a motion under Rule 12(b)(6) is to test

the formal sufficiency of the statement of the claim for relief;

it is not procedure for resolving a contest about the facts or

merits of the case.” Wright & Miller, Federal Practice and

Procedure: Civil 2d 1356 at 294 (1990).

The test for dismissal under Fed. R. Civ. P. 12(b)(6)

is a Stringent one:

Case No. C-3-03-116

[A] complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.

Hartford Fire Ins. Co v. California, 509 US 764, 811, 113 S.

Ct. 2891, 125 L. Ed. 2d 612 (1993), quoting Conley v.

Gibson, 355 US 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80

(1957); Neitzke v. Williams, 490 US 319, 109 S. Ct. 1827,

104 L. Ed 338 (1989); Hishon v. King & Spalding, 467 US

69, 104 S. Ct. 229, 81 L. Ed. 2d 59(1984); Monette v.

Electronic Data Systems, Inc., 90 F. 3d 1173, 1189 (6 cir.

(1996). For purposes of the motion to dismiss, the complaint

must be construed in the light most favorable to the plaintiff

and its allegations taken as true. Scheuer v. Rhodes, 416 US.

232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Westlake v.

Lucas, 537 F. 2d 857 (6" Cir. (1976); Craighead v. E.F.

Hutton & Co., 899 F. 2d 485 (6" Cir. (1990). To survive a

motion to dusmiss under Fed, R. Civ. P. 12(b)(6), “a...

complaint must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery

under some viable legal theory.” Scheid v. Fanny Farmer

Candy Shops, Inc., 859 F. 2d 434 (6" Cir (1988); followed

Allard v. Weitzman (In re DeLorean Motor Co.), 991 F. 2d

1236 (6" Cir 1990); Columbia Natural Resources, Inc. v.

Tatum, 58 F. 3d 1101 (6™ Cir 1995). The Court “need not

accept as true legal conclusions or unwarranted factual

inferences.” Morgan vy. Church’s Fried Chicken, 829 F. 2d

10, 12 (6 Cir. 1987). Bare assertions of legal conclusions

are not sufficient. Lillard v. Shelby County Bd. Of Educ., 76

F. 3d 716, 6" Cir. 1996); Sogevalor S. A. v. Penn Central

_Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991). It is only

well-pleaded facts which are construed liberally in favor of

the party opposing the motion to dismiss. Id., citing Scheuer

v. Rhodes, 416 US. 232, 236, 94 S. Ct 1683, 40 L. Ed. 2d 90

(1974); see also Wright & Miller, Federal Practice And

Procedure: Civil 2d 1357 at 311-318 (1990).

ae SUMMARY JUDGMENT STANDARD

Other Defendants have filed motions for summary

judgment. Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and-admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and the moving party is

— entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.

On a motion for summary Judgment, the movant has the

burden of showing that there exists no genuine issue of

material fact, and the evidence, together with all inferences

that can reasonably be drawn therefrom, must be read in the

light most favorable to the party opposing the motion..

Adickes v.\S. H. Kress & Co., 398 US. 144, 157-59 (1970).

Nevertheless, “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 US 242, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986) (emphasis in original).

Summary judgment procedure is properly regarded not as a

disfavored procedural shortcut, but rather as an integral part

of the Federal Rules as a whole, which are designed to

“secure the just, speedy aid inexpensive determination of

every action.” Celotex Carp. v. Catrett, 477 US. 317, 327

(1986). - v3

Read together, Liberty Lobby and Celotex stand for

the proposition that a party may move for summary judgment

asserting that the opposing party will not be able to produce

sufficient evidence at trial to withstand a directed verdict

motion (now known as a motion for judgment as a matter of

Case No. C-3-03-116

law. Fed R. Civ. P. 50). Street v. Bradford & Co., 886 F. 2d

1472, 1478 (6™ Cir. 1989). If, after sufficient time for

discovery, the opposing party is unable to demonstrate that

he or she can do so under the Liberty Lobby criteria,

summary judgment is appropriate. Id. The opposing party

must “do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita

Electric Industrial Co., Ltd v. Zenith Radio Corp., 475 US.

574, 586 (1986).. “If the evidence is merely colorable, or is

not significantly probative, summary judgment may be

granted.” Liberty Lobby, 477 US. At 249-50, 106 S. Ct. at

2510-11 (citations omitted). “The mere possibility of a

factual dispute is not enough.” Mitchell v. Toledo Hosp., 964

F. 2d 577, 582 (6" Cir. 1992)(quoting Gregg v. Allen-

Bradley Co., 801 F. 2d 859, 863 (6° Cir. 1986). Therefore a

court must make a preliminary assessment of the evidence, in

order to decide whether the plaintiff's evidence concerns a

material issue and is more than de minimis. Hartsel v. Keys,

87 F. 3d 795(6" Cir. 1996). “On summary judgment,”

moreover, “the inferences to be drawn from the underlying

facts... must be viewed in the light most favorable to the

party opposing the motion.” United States v. Diebold, Inc.,

369 US. 654,655,82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962).

Thus, “the judge’s function is not himself to weigh the

evidence and determine the truth of matter but to determine

whether there is a genuine issue for trial,” Liberty Lobby, 477

US at 249, 106 S. Ct. at 2510.

(The moving party always bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any,” which it believes demonstrate the

absence of a genuine issue of material fact.)

Case No. C-3-03-116

Celotex, 477 US at 323; see also, Boretti v. Wiscomb, 930 F.

2d 1150,1156 (6" Cir. 1991) (citation omitted): If the moving

party meets this burden, the nonmoving party must go

beyond the pleadings to show that there is a genuine issue for

trial. Matsushita, 475 US at 587; Martin v. Ohio Turnpike

Comm’n., 968 F. 2d 606, (6™ Cir.,1992), cert. Denied, 506

US.1054,113 S. Ct. 979, 122 L.Ed. 2d 133 (1993).

In ruling on a motion for summary judgment (in other

words, determining whether there is a genuine issue of

material fact), “[a] district court is not . . . obligated to wade

through and search the entire record for some specific facts

that might support the nonmoving party’s claim.” Jnterroyal

Corp. v. Sponseller, 889 F. 2d 108,111 (6" Cir. 1989), cert.

Denied, 494 US 1091 (1990). Thus, in determining whether a

genuine issue of material facts exists on a particular issue, a

court is entitled to rely only upon those portions of the

verified pleadings, depositions, answers to interrogatories,

and admissions on file, together with any affidavits |

submitted, specifically called to is attention by the parties.

The facts set forth in this Decision are admitted or

established by eviderice competent under Fed. R. Civ. P.

56(e) and not controverted by opposing competent evidence.

Allegations of the Complaint

Plaintiff brought this action pro se against twenty-two

Defendants (Complaint, Doc. No.1). She purports to bring

the claim under 42 U.S.C. 1983 and. to assert supplemental

claims under Ohio law (Complaint, 1). She claims that

Defendants acted intentionally, maliciously, or with

deliberate indifference to her rights (Id., 4) and that they

acted under color of state law (Id., 8).

= 46 ‘

Allegations of the Complaint

Plaintiff alleges that on February 7, 2001, she met

with Eaton City Manager Dave Daily to inform him of

corruption in a particular (unnamed) department of the City

(Id., 9). Later that day she went to the private photography

business of Eaton Mayor Pat Taylor both to get a photograph

restored and to inform him of the same things (Id.). Although

Mayor Taylor said he could not get his own personal issues

dealt with by the Preble County Court system, he threatened

to have the City take Ms. Acton through the same system

(Id., 14).

At a public meeting of the Preble City Council on

February 20, 2001, she made a statement admitting to her

own participation in an alleged insurance fraud involving

Defendant Parker-Hannifin and Preble County Health

Commissioner Mark Vosler (Id., 17) and other public

officials who allegedly failed to investigate the fraud.

On March 8,- 2001, two employees of Samaritan

Counseling Alternatives appeared at her home and advised

her that Sheriff Tom Hayes, Eaton Police Chief Romeo, and

Wilfred Dues were concerned about her mental health. She

alleges that the three of them conspired “for the purpose of

creating the perception that I was ill with mental disorder, or

combination there of [sic] to the degree of being homicidal,

suicidal, delusional, and possessing strong religious beliefs.”

(Id.,27). Instead of accepting a counseling appointment at

Samaritan Counseling Alternatives, she made an appointment

at a Christian mental health agency, Christos Counseling, in

Vandalia, Ohio (in Montgomery as opposed to Preble

County).

Allegations of the Complaint

On March 13, 2001, Judge Dues, the Probate Judge of

Preble County, issued an order for Plaintiff's detention at

Twin Valley Psychiatric in Dayton (Id. 30). She was taken

into custody with Chief Romeo personally participating (Id.

39). At an on-site hearing with Montgomery County Probate

Judge George Gounaris, she requested to have that evaluation

done on referral by Defendant Dr. Allen Ferguson, but he

declined to become involved (Id. 57-60. Dr. Lori Marcellino,

a psychiatrist with Samaritan Counseling Services, is accused

of rendering an opinion on Plaintiff's mental health of which

Judge Dues used to justify the confinement, but without Dr.

Marcellino ever evaluating Plaintiff. (Id. 63). At the second

hearing on April 5, 2001, Judge Gounaris ordered the case

dismissed (Id. 82).

The complaint questions at length the documents

assertedly reviewed by Judge Dues before issuing the

temporary detention order (Id., 95-113). She then quotes at

length from a newspaper article in the Register-Herald of

March 19, 2003, about the new Preble County Medical

Center (Id.,114-119). In 120 through 128, she alleges that

two different forms signed by Defendant Dr. Mark Vosler

were submitted by Parker-Hannifin with respect to a

Workers’ Compensation claim.

Having set forth the factual basis of her claims,

Plaintiff proceeds to plead three separate causes of action.

The first is a 1983 claim solely against Judge Dues (Id.,129-

1340. The second solely against Dr. Lori Marcellino, also

under 1983, for making the allegedly false affidavit on the

basis of which Judge Dues detained Ms. Acton. In the third

cause of action, Plaintiff alleges that the Defendants

conspired to deprive Plaintiff of her due process rights and to

cause her to suffer cruel and unusual punishment (Id., 140).

She alleges this claim seeks relief under 42 U.S.C. 1983 for

violations of the First and Fourth Amendments (Id. 141). In

143-145, the Defendants defamed her. She seeks $12 million

Allegations of the Complaint

in compensatory damages and another $12 million in

punitive damages (Id., 147).

The Pending Motions

1:Parker-Hannifin Corp. Motion to Dismiss (Doc. No. 51).

Parker-Hannifin, Wayne Pinkstaff, and Jenny Haddux

move to dismiss on the grounds that they are not state actors.

Only persons acting under the color of state law can be liable

under 42 U.S.C. 1983.

However, Plaintiff does allege that these three

Defendants conspired with state actors to deprive her of her

constitutional rights. A civil conspiracy is a combination of

two or more persons acting in concert to commit an unlawful

act, or to commit a lawful act by unlawful means, the

principal element of which is agreement among the parties.

Hampton v. Hanrahan, 600 F. 2d 600, 620-21 97" Cir.

1979). rev’d in part on other grounds, 446 US. 754, 100 S.

Ct. 1987, 64 L. Ed.2d 670 (1980). Liability attaches for a

civil conspiracy when a plaintiff can prove that two or more—

defendants agreed to injure another by unlawful action and

committed an overt act in furtherance of the conspiracy.

Michigan Paytel Joint Venture v. City of Detroit, 287 F. 3d

527,541 (6" Cir. 2002). :

The difficulty with Plaintiff's Complaint is that it

makes very general conspiracy allegation: all the Defendants

are alleged to have conspired together to deprive her of her

rights. Conspiracy claims must be pled with some degree of

specificity; vague and conclusory allegations unsupported by

material facts will not be sufficient to state a claim under 42

U. S. C. 1983. Gutierrez v. Lynch, 826 F. 2d 1534, 1538 (6"

Cir. 1987), citing Jaco v. Bloechle, 739 F. 2d 239, 245 (6"

Cir. 1984); Polur v. Raffe, 912 F. 2d 52, 56 (2d Cir. 1990);

The Pending Motions

Applegate V. Top Associates, Inc., 425 F. 2d 92 (2d Cir.

1970). The only connection alleged between these three

Defendants is that the certificates of which Plaintiff

complains were both signed by Dr. Mark Vosler as a

physician and he is alleged to have various connections with

the other Defendants who are alleged to be “connected” with

one another.

In response to this Motion to Dismiss, Plaintiff does

not provide any specific allegations of conspiracy by any of

these Defendants with any of the state actors. Instead, she

refers to various pages from hundreds of pages of documents

she submitted to the Court on July 29, 2003. The pages she

references do not show anything about a conspiracy among

the Defendants.

As to these three Defendants, the Complaint fails to

state a claim upon which relief can be granted and will be

dismissed without prejudice on that basis. The alternative

motion for definite statement is denied.

2.Rebecca Ferguson’s Motion for Summary Judgment

(Doc. Nos. 61 and 63).

Because Defendant Ferguson’s Amended Motion for

Summary Judgment (Doc. 63), replaces her original Motion

(Doc. No. 61). The original Motion is DENIED AS MOOT.

Defendant Ferguson seeks summary judgment on two

basis: that she did not conspire with anyone to have Plaintiff

detained for mental status evaluation and that she is entitled

to immunity for her decision not to prosecute Parker-

_ Hannifin for what Plaintiff alleges is insurance fraud.

With respect to Ms. Ferguson’s reporting to Chief

Romeo facts observed by her staff which might lead a

The Pending Motions —

reasonable person to question Plaintiff's mental stability,

this reporting of observations does not give rise to any

liability. Ms. Ferguson avers by Affidavit that she took no

part in the decision to seek detainment and Plaintiff has

produced no contrary testimony. The sole basis for finding

her liable, then, would be reporting the observed facts. Such

reports do not give rise to liability under 42 U.S.C. 1983 in

the absence of some proof that they are part of an unlawful

conspiracy. Paul v. Davis, 424 US. 693, 96 S. Ct. 1155, 47

L. Ed.2d 405 (1976). ~

Acts undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or for trial, and which

occur in the course of his role as an advocate for the State,

are entitled to the protections of absolute immunity. /mbler

v. Pachtman, 424 US. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128

(1976); Burns v. Reed, 500 US. 478,111 S. Ct 1934, 114 L.

Ed. 2d 547 (1991); Buckley v. Fitzsimmons, 509 US. 259,

113 S. Ct. 2606, 125 L.Ed. 2d 209 (1993). This absolute

immunity does not extend to investigatory activity, advising

police, or personnel matters. Burns. It does apply to

presenting allegedly false or defamatory testimony or

making false or defamatory statements in judicial

proceedings. Burns. Absolute immunity applies to

professional evaluation of evidence assembled by the

police. Buckley.

In this case, Plaintiff appears to allege Ms. Ferguson

violated Plaintiff's constitutional rights by not prosecuting

Parker-Hannifin. If the decision to prosecute someone is

protected by absolute immunity, a fortiori the decision not to

bring criminal charges is likewise protected.

Therefore, Defendant Ferguson’s Motion for

Summary Judgment (Doc. No. 63) is GRANTED.

The Pending Motions

3.Preble County Medical Center’s Motion for Summary

Judgment (Doc. No. 64).

Preble County Medical Center’s Motion for Summary

Judgment establishes that it is a real estate partnership

which, until 1998, owned a building in which several of the

indivisual Defendants practiced medicine, but that it never

employed any of them. Plaintiff offers no contrary evidence.

Upon that state of facts, Preble County Medical

Center’s Motion for Summary Judgment is GRANTED.

4.Christopher Washington’s Motion to Dismiss (Doc.

No. 72).

Defendant Christopher Washington is the Preble

County Clerk of Courts. Although he is a named Defendant,

there are no allegations against Mr. Washington in the

Complaint and Plaintiff has not responed to the Motion.

Presumably he was sued because it was his duty to

journalize whatever orders Judge Dues may have entered in

this matter. As such, he is absolutely immune from any

liability, Foster v. Walsh, 864 F. 2d 416 (6 nCir 1988);

Denman v. Leedy, 479 2d 1097 (6™ Cir. 1973). Defendant

Washington’s Motion to Dismiss is GRANTED. Because

the basis is his immunity, the dismissal will be with

prejudice.

5.Sheriff Tom Hayes’ Motion to Dismiss (Doc. No. 73).

Preble County Sheriff Hayes moves to dismiss on

grounds the Complaint does not state a claim for relief

against him. As noted above, the only claim which involves

all the Defendants is the third cause of action for

conspiracy. The allegations are as general and conclusory as

The Pending Motions

to Sheriff Hayes as they are as to the three Parker-Hannifin

Defendants.

Sheriff Hayes also seeks dismissal on statute of

limitations grounds since the Complaint in this case was not

filed for more than two years after it accrued. The ststute of

limitations under Ohio law fir actions brought puruant to 42

U.S.C. 1983 is two years. Ohio Revised Code 2305.10.

Browning v. Pendleton, 869 F. 2d 989 (6 Cir. 1989)(en

banc).

Plaintiff claims the statute was toiled during the

period she was confined at Twin Valley, March 13-Apmil5,

2001. This Court believes she misinterpreted Ohio Revised

Code 2305.16. She was confined there for an evaluation of

her mental status and never found to have been of unsound

mind. In fact, as one of the Defendants pointed out, if

Plaintiff could obtain the benefit of 2305.16 by claiming to

have been of unsound mind, she would thereby be admitting

that there was some basis for having her detained for

evaluation, whereas her theory throughout seems to be that

the mental illness claims were trumped up in retaliation for

her whistle-blowing activities.

Sheriff Hayes’ Motion to Dismiss is GRANTED.

Because the 1983 claim is barred by the statute of limitations,

the, the Complaint will be dismissed as to Sheriff Hayes with

prejudice

6.Defendants Samaritan Behavioral Health and Lori

Marcellino’s Motion for Sum:aary Judgment (Doc. No.

75).

Defendants Samaritan Behavioral Health., and Dr.

Lori Marcellino seek summary judgment on the basis of the

statute of limitations. Since any causes of actions against

The Pending Motions

them accrued at the same time as the claims against Sheriff

Hayes, they are entitled to judgment on the same basis.

7.Defendants Mark Vosler and Harold Ferguson’s

Motion for Summary Judgment (Doc. No. 76).

Defendants Mark Vosler and Harold Ferguson also

seek dismissal on the basis of the statute of limitations.

Since any causes of action against them accrued at the same

time as the claims against Sheriff Hayes, they are entitled to

judgment on the same basis.

8.Plaintiff’s Motion to Amend (Doc. No. 60).

Plaintiff has moved to amend the Complaint, but the

proposed amended complaint merely adds dozens of new

Defendants without adding any allegations against the

existing Defendants which would permit the case to survive

a motion to dismiss or for summary judgment. The Motion

to Amend is DENIED.

Defendant Preble County Youth Foundation, Inc., has

filed answer) Doc. No. 25) raising, interalia, the defenses that

the Complaint does not state a claim against it and that any

1983 claims would be barred by the statute of limitations.

While this Defendant has not moved to dismiss of for

summary judgment, it is entitled to summary judgment on

the basis of the statute of limitations which the Court hereby

GRANTS, sue sponte.

Because this Decision and Order will result in a final

judgment, the City of Eaton’s Motion under Rule 54 (Doc.

No. 69) is MOOT.

_ The Pending Motions

All three causes of action pled by Plaintiff

purportedly under 42 U.S.C.1983 and all such claims are

being dismissed with prejudice. However, Plaintiff did advert

to supplemental jurisdiction and has claimed defamation,

albeit not in a separate claim for relief. Generally, if federal

claims are dismissed before trial, the state claims should be

dismissed as well. Landefeld v. Marion General Hospital,

Inc., 994 F. 2d 1178, 1182 (6" Cir. 1993); Taylor v. First of

America Bank-Wayne, 973 F. 2d 1284 (6" Cir. 1992);

Wolotsky v. Huhn, 960 F. 2d 1331, 1338 (6™ Cir. 1992). Any

state law claims made by Plaintiff shall be dismissed without

prejudice under 28 U.S.C. 1367.

Conclusion

The Clerk shall enter judgment against the Plaintiff

and in favor of the Defendants, dismissing the Complaint

without prejudice as to Defendants Twin Valley

Psychiatric/Behavioral Healthcare, Parker-Hannifin, Wayne

Pinkstaff, and Jenny Haddux and with prejudice as to

Defendants Wilfred Dues, George Gounaris, Dan Foley,

Michael Holz, City of Eaton, Leslie Renner, Phillip Romeo,

Dave Daily, John Petry, Pat Talor, Rebecca Ferguson, Preble

County Medical Center, Christopher Washington, Tom

Hayes, Samaritan Behavioral Health, Inc., Lori Marcellino,

Mark Vosler, Harold Allen Ferguson, and Preble County

Youth Foundation, Inc.

November 28, 2003.

S/Michael R. Merz

United States Magistrate Judge

ORDERS ON MOTIONS

U.S. DISTRICT COURT [Live]

LIVE- U.S. District Court, Southern District of Ohio

Notice of Electronic Filing

The following transactions was received: from mm1l, on

11/28/2003 at 1:41 PM ES; from ghl, entered at 2:49 PM

EST and filed on 11/28/2003

Case Name: Acton v. City of Eaton, Ohio et al

Case Number: 3:03-cv-116

Filer:

Document Number: 87

Docket Text:

Notation ORDER finding as moot [86] Motion for Judgment

as a Matter of Law, by Judge Michael R. Merz on

11/28/2003. (mm1); ORDER granting [51] Motion to

Dismiss, denying [51] Motion for More Definite Statement,

denying [60} Motion to Amend/Correct, denying as moot

- [61] Motion for Summary Judgment, denying as moot [63]

Motion for Summary Judgment, granting [64] Motion for

Summary Judgment, finding as moot [69] Motion for Order

to, granting [72] Motion to Dismiss, granting [73] Motion to

Dismiss, granting [75] Motion for Summary Judgment,

granting [76] Motion for Summary Judgment. Signed by

Judge Michael R. Merz on 11/28/2003. (gh1,)

The following document(s) are associated with this

transaction:

Document description: Main Document

Original filename: n/a

ORDERS ON MOTIONS

Electronic document Stamp:

{STAMPdcecfStamp_ID1040326259[Date=1 1/28/2003][File

Number=859350][1£823c28361a9792 1 cdfd2c985ac67f7bf8c

dc743c480bcb3f5 144984 fc57adSafbl8b1 832833 lcace8d947e

34d4c4£3 db6ef5£6c87744625324acc7£84051]]

3:03-cv-116 Notice will be electronically mailed to:

Gray W Bennett graybennett@wol.rr.com,

Christopher William Carrigg ccarrigg@ffalaw.com

Mark Robert Chilson mchilson@yandalaw.com

Karen Morrison Clark kemclark@infinet.com,

Robert Forrest Cowdrey rfcowdrey@shsedayton.com,

Neil Frank Freund adetmer@ffalaw.com

Daniel F Getty dgetty@ffalaw.com,

Vaseen S Hadi vhadi@ffalaw.com

John Francis Haviland

jfh@bgllaw.com,DAL@BGLLAW.COM,

Sruce G. Hearey _ bhearey@spiethbel!.com

John Fredrick Krumholtz krumholtzj@mcohio.org

Allison McCallum

amccallum@spiethbell.com,: mstaton@spiethbell.com

Mark L. Schumacher mschumac@ffalaw.com

ORDERS ON MOTIONS

3:03-cv-116 Notice will not be electronically mailed to:

Stephanie S. Acton

3045 US Route 35 West

Eaton, Ohio 45320

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STEPHANIE S.ACTON Case No. C-3-03-116

Plaintiff Magistrate Judge

Michael R. Merz

Vs.

THE CITY OF EATON, OHIO, et al.,

Defendants.

ORDER GRANTING PLAINTIFF’S REQUEST FOR

EXTENSION OF TIME 7

This case is before the Court on Plaintiff's Request of

Extension of Time (Doc. No. 80) which appears to seek

additional time for Defendants to produce medical or other

records to Mark Schumacher in response to his requests for

those documents under authorizations for release signed by

Plaintiff. Assuming that is indeed the relief requested by

Plaintiff, it is GRANTED. This extension does not affect any

of the pending motions to dismiss or for summary judgment

as Plaintiff has not requested additional time to respond to

those motions.

October 9, 2003

S/ Michael R. Merz

United States Magistrate Judge

ORDERS ON MOTIONS

U. S. District Court [Live]

LIVE- U. S. District Court, Southern District of Ohio

Notice of Electronic Filing

The following transaction was received from ghl, entered on

10/9/2003 at 5:00 PM EDT and filed on 10/9/2003

Case Name: Acton v. City of Eaton. Ohio. Et al

Case Number: 3:03-cv-116

Filer:

Document Number: 81

Docket Text: ORDER granting [80] Motion for Extension of

Time to File Response/Reply. Signed by Judge Michael R.

Merz on 10/09/03. (gh1)

The following document(s) are associated with this

transaction:

_ Document description: Main Document

Original filename: n/a

Electronic document Stamp:

[STAMP dcecfStamp_ ID=1040326259[Date=10/9/2003]

[FileNumber=3963 1-0]

[066b88dbbb589 1 dS2cbcS0663 88 fcabl899a84c694ebcb3e65

£429 1488673999 1821 44afc89e62afS5ED5S8425BD86229E777

1478BBC66F9FDA14493E3A774EBS5]]

3:03-CV-116 Notice will be electronically mailed to:

Christopher William Carrigg ccarrigg@ffalaw.com

Mark Robert Chilson mchilson@yandalaw.com

ORDERS ON MOTIONS CONTINUED

Karen Morrison Clark kemclark@infinet.com

Robert Forrest Cowdrey rfcowdrey@shsedayton.com

Neil Frank Freund - adetmer@ffalaw.com

Daniel F Getty dgetty@ffalaw.com

Vaseen S Hadi vhadi@ffalaw.com

John Francis Haviland jfh@Begllaw.com

Bruce G Heary bhearey@spiethbell.com

John Frederick Krumholtz krumholtzji@mcohio.org

Allison McCallum amccallum@spiethbell.com,

mstaton@spiethbell.com

Mark L. Schumacher mschumac@ ffalaw.com

3:03-cv-116 Notice will not be electronically mailed to:

Stephanie Acton

3045 US Route 35 West

Eaton, Ohio 45320 *

Gray W Bennett

Bennett & Bennett

200 West Main Street

Eaton, Ohio 45320

APPENDIX E

AMERICAN BAR ASSOCIATION

MOLEL CODE OF JUDICIAL CONDUCT

Canon 3

(in part )

A JUDGE SHALL PERFORM THE DUTIES OF

JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

A. Judicial Duties in General. The judicial duties of a

judge take precedence over all the judge’s other

activities, The judge’s judicial duties include all the

duties of the judge’s office prescribed by law. In the

performance of these duties, the following standards

apply.

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters

assigned to the judge except those in which

disqualification is required.

(2) A judge shall be faithful to the law and

maintain professional competence in it.A

judge shall not be swayed by partisan

interests, public clamor or fear of criticism.

Canon 3 Continued

B. Adjudicative Responsibilities

(5) A judge shall perform judicial

duties without bias or prejudice. A

judge shall not, in the performance of

judicial duties, by words or conduct

manifest bias or prejudice, including

but not limited to bias or prejudice

based upon race, sex, religion, national

origin, disability, age, sexual

orientation or socioeconomic status,

and shall not permit staff, court

officials and others subject to the

judge’s direction and control to do so.

Commentary: “. .. A judge must be alert to avoid behavior

that may be perceived as prejudicial.”

(6) A judge shall require lawyers in

proceedings before the judge to refrain

from manifesting, by words or

conduci, bias or prejudice based upon

race, sex, religion, national origin,

disability, age, sexual orientation or

socio-economic status, against parties,

witnesses, counsel or others. This

Section 3B(6) goes not preclude

legitimate advocacy when race, sex,

religion, national origin, disability,

age, sexual orientation socioeconomic

status, or other similar factors, are

issues in the proceeding.

Canon 3 Continued

(7) A judge shall accord to every

person who has a legal interest in a

proceeding, or that person’s lawyer,

the right to be heard according to

law...

D. Disciplinary Responsibilities.

(1) A judge who receives information

indicating a substantial likelihood that

another judge has committed a violation

of this Code should take appropriate »

action. A judge having knowledge that

another judge has committed a violation

of this Code that raises a substantial

question as to the other judge’s fitness

for office shall inform the appropriate

authority.

(2) A judge who receives information

indicating a substantial likelihood

that a lawyer has committed a

violation of the Rules of Professional

Conduct [substitute correct title if

the applicable rules of lawyer

conduct have a different title] should

take appropriate action. A judge

having knowledge that a lawyer has

committed a violation of the Rules of

Professional Conduct [substitute

correct title if the applicable rules of

lawyer conduct have a different title]

that raises a substantial question as

to the lawyer’s honesty,

Canon 3 Continued

E. Disqualification

trustworthiness or fitness as a

lawyer in other respects shall

inform the appropriate

authority.

(1) A judge shall disqualify himself or

herself in a proceeding in which the

judge’s impartiality might reasonably be

questioned, including but not limited to

instances where:

(a) the judge has a personal bias

or prejudice concerning a party

or a party’s lawyer, or personal

knowledge of disputed

evidentiary facts concerning

the proceeding;

APPENDIX F

MODEL RULES OF PROFESSIONAL CONDUCT

(in part )

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated

in the investigation or litigation of a matter shall

not make an extrajudicial statement that the

lawyer knows or reasonable should know will be

disseminated by means of public communication

and will have a _ substantial likelihood of

materially prejudicing an adjudicative proceeding

in the matter.

Rule 3.8 Special Responsibilities of a Prosecutor

(f) “.. ., refrain from making extrajudicial comments

that have a substantial likelihood of. heightening

public condemnation of the accused and exercise

reasonable care to prevent investigators, law

enforcement personnel, employees or other persons

assisting or associated with the prosecutor in a

criminal case from making an extrajudicial statement

that the prosecutor would be prohibited from making

under Rule 3.6 or this Rule.

APPENDIX G

Federal Rules of Civil Procedure

V. Depositions and Discovery> Rule 34

Rule 34. Production of Documents and Things and

Enrty upon Land for Inspection and Other Purposes

(a) Scope.

Any party may serve on any other party a request (1)

to produce and permit the party making the request,

or someone acting on the requestor’s behalf, to

inspect and copy, any designated documents

(including writings, drawings, graphs, charts,

photographs, phone records, and other data

compilation.

(b) Procedure.

The request shall set forth, either by individual item

or by category, the items to be inspected, and describe

each with reasonable particularitSy. The request shall

specify a reasonable time, place, manner of making

the inspection and performing the related acts.

Without leave of court or written stipulation, a

request may not be served before the time.specified in

Rule 26(d).tions from which information can be

obtained, translated, if necessary, by the respondent

through detection devices into reasonably usable

form), or to inspect and copy, test, or sample any

tangible things which constitute or contain matters

within the scope of Rule 26(b) and which are in the

possession, custody or control of the party upon

whom the request is served; or (2) to permit enrty

upon whom the request is served for the purpose of

inspection and measuring, surveying, photographing,

testing, or sampling the property or any designed

object or operation thereon, within the scope of Rule

26 (b).

The party upon whom the request is served shall

serve a written response within 30 days after the

service of the request. A shorter or longer time may

be directed by the court or, in the absence of such an

order, agreed to in writing by the parties, subject to

Rule 29. The response shall state, with respect to each

item or category, that inspection and related activities

will be permitted as requested, unless the request is

objected to, in which event the reasons for the

objection shall be specified and inspection permitted

of the remaining parts. The party submitting the

request may move for an order under Rule 37.

APPENDIX H

Federal Rules of Civil Procedure

V. Depositions and Discovery> Rule 37.

Rule 37 Failure to Make or Cooperate in Discovery;

Sanctions.

(a) Motion for Order Compelling Disclosure or

Discovery.

A party, upon reasonable notice to other parties and

all persons affected thereby, may apply for an order

compelling disclosure or discovery as follows:

(1) Appropriate Court.

An application for an order to a partSy shall

be made to the court in which the action is

pending. An application for an order to a

person whom is not a party shall be made to

the court in the district where the discovery is

being, or is to be, taken.

(2) Motion.

(a) If a party fails to make a disclosure

required by Rule 26 (a), any other

party may move to compel disclosure

and for appropriate sanctions. The

motion must include a certificate that

the movant has in good faith conferred

or attempted to confer with the party

not making the disclosure in an effort

to secure the disclosure without court

action.

(b) If a deponent fails to answer a question

propounded or submitted under Rules

30 or 31, or a corporation or other

entity fails to make a designation

under Rule 30(b)(6) or 31(a), or a

party fails to answer an interrogatory

submitted under Rule 33, or if a party,

in response to a request for inspection

submitted under Rule 34, fails to

respond that inspection. will be

permitted as requested or fails to

permit inspection as requested, the

discovering party may move for an

order compelling answer, or a

designation, or an order compelling

inspection in accordance with the

request. The motion must include a

certification that the movant has in

good faith conferred or attempted to

confer with the person or party failing

to make the discovery in an effort to

secure information or material without

court action. When taking a deposition

on oral examination, the proponent of

the question may complete or adjourn

the examination before applying for an

order.u

Section

5122.11

5122.12

5122.13

5122.14

5122.14]

5122.15

5122.16

5122.17

5122.18

3122.19

APPENDIX I

OHIO REVISED CODE

CHAPTER 5122

Hospitalization of Mentally Ill

Judicial Hospitalization

Judicial hospitalization; affidavit; temporary

detention order.

Notice of hearing

Investigation by court

Pre-hearing medical examination

Hearing to determine if person is mentally ill

subject to hospitalization; continuance;

discharge; interim order; waiver of hearing.

Full hearing; ninety-day order; disposition of

respondent

Hospitalization to federal facility

Temporary detention

Notice of hospitalization

Medical examination after admission

5122.11 Judicial hospitalization; affidavit; temporary

detention order

Proceedings for the hospitalization—of a person

pursuant to sections 5122.11 to 5122.15 of the ORC shall be

commenced by the filing of an affidavit in the manner and

form prescribed by the department of mental health, by any

person or persons with the court, either on reliable

information or actual knowledge, whichever is determined to

be proper by the court. This section does not apply to the

hospitalization of a person pursuant to section 2945.39,

2945.40, 2945.401, or 2945.402 of the ORC.

The affidavit shall contain an allegation setting forth

the specific category or categories under division (B) of

section 5122.01 of the ORC upon which the jurisdiction of

the court is based and a statement of alleged facts sufficient

to indicate probable cause to believe that the person is a

mentally ill person subject to hospitalization by court order.

The affidavit may require that the affidavit be accompanied,

by a certificate of a psychiatrist, or a certificate signed by a

licensed clinical psychologist and a certificate signed by a

licensed physician stating that the person who issued the

certificate has examined the person and is of the opinion that

the person is a mentally ill person subject to hospitalization

by court order, or shall be accompanied by a written

statement by the applicant, under oath, that the person has

refused to submit to an examination by a psychiatrist, or by a

licensed clinical psychologist and a licensed physician.

Upon receipt of the affidavit, if a judge of he court or

a referee who is an attorney at law appointed by the court has

probable cause to believe that the person named in the

affidavit is a mentally ill person subject to hospitalization by

court order, the judge or referee may issue a temporary order

of detention ordering any health or police officer or sheriff to

take into custody and transport the person to a hospital or

other place designated in section 5122.17 of the ORC, or may

set the matter for further hearing.

5122.11 Continued (in part)

The person may be observed and treated until the

hearing provided for in section 5122.141 of the ORC. If no

such hearing is held, the person may be observed and treated

until the hearing provided for in section 5122.15 of the ORC.

Constitutional issues

1. In an involuntary civil commitment proceeding

undertaken pursuant to ORC 5122.15, the due process clause

of the US Constitution Amendment 14, requires that

individuals subject to such proceedings be advised of their

right to be represented by counsel retained by them, or if they

are unable to afford counsel that counsel will be appointed

for them at public expense; if such individuals are incapable,

at the time, of understanding their right to counsel in such

proceedings, the probate court shall appoint counsel to

represent each indigent person who is alleged to be mentally

ill; such right to be represented by counsel must be made

available at the earliest stage of the proceedings

commensurate with the individual’s need for a timely

preparation of a defense or advancement of an argument for

alternative modes of treatment, preferably upon the filing of

an affidavit in probate court under ORC 5122.11. In re Fisher

(Ohio 1974) 39 Ohio St.2d 71, 313 N.E.2d 851, 68 O.0.2d

43.

5122.12 Notice of hearing (in part)

After receipt of the affidavit required by section

5122.11 of the ORC, the court shall cause written notice by

mail or otherwise of any hearing as the court directs to be

given to the following persons:

(A) The Respondent;

(B) The respondent’s legal guardian,

if any, the respondent’s spouse,

if any, and the respondent’s

parents, if the respondent is a

minor, if these persons’

addresses are known to the court

or can be obtained through

exercise of reasonable diligence;

affidavit;

(D) Any one person designated by

the respondent; but if the

respondent. does not make a

selection, the notice shall be sent

to the adult next of kin other

than the person who filed the

affidavit if that person’s address

is known to the court or can be

obtained through exercise of

reasonable diligence;

(E) The respondent’s counsel;

(F) The director, chief clinical

officer, or the respective

designee of the hospital, board,

agency, or facility to which the

person has been committed;

(G) The board of alcohol, drug

addiction, and mental health

services serving the respondent’s

county of residence or an agency

the board designates.

Any person entitled to notice under this section, with

exception of the respondent, may waive the notice.

A copy of the affidavit and the temporary order of

detention shall be served with the notice to the parties and to

the respondent’s counsel, if counsel has been appointed or

5122.14 Pre-hearing medical examination (in part)

Immediately after the acceptance of an affidavit

required under section 5122.11 of the ORC, the court may

appoint a psychiatrist, or a licensed clinical psychologist and

a licensed physician to examine the respondent, and at the

first hearing held pursuant to 5122.141 of the ORC, such a

psychiatrist, or licensed psychologist and licensed physician,

shall report to the court his findings as to the mental

condition of respondent, and his need for custody, care, or

treatment in a mental hospital. The court may accept as

evidence the written report of a psychiatrist, or the written

report of a licensed clinical psychologist and a licensed

physician, designated by the board of alcohol, drug addiction,

and mental health services as the report and findings referred

to in this section.

The examination, if possible, shall be held at a

hospital or other medical facility, at the home of the

respondent, or at any suitable place least likely to have a

harmful effect on the respondent’s health.

The court shall prior to a hearing under section

5122.141 or 5122.15 of the ORC release a copy of the report

to the respondent’s counsel.

5122.141 Hearing to determine if a person is

mentally ill subject to hospitalization; continuance;

discharge; interim order; waiver of hearing

(A) A respondent who is involuntarily placed in a

hospital or other place as designated in section

5122.10 or 5122.17 of the ORC, or with respect to

whom proceedings have been instituted under section

5122.11 of the ORC, shall be afforded a hearing to

determine whether or not the respondent is a mentally

ill person subject to hospitalization by court order.

The hearing shall be conducted pursuant to section

5122.15 of the ORC.

(B) The hearing shall be conducted within five court days

from the day on which the respondent is detained or

an affidavit is filed, whichever occurs first, in a

physical setting not likely to have a harmful effect on

the respondent, and may be conducted in a hospital in

or out of the county. On the motion of the

respondent, his counsel, the chief clinical office, or

on its own motion, and for good cause shown, the

court may order a continuance of the hearing. The -

continuance may be for no more than ten days from

the day on which the respondent is detained or on

which an affidavit is filed, whichever occurs first.

Failure to conduct the hearing within this time shall

affect an immediate discharge of the respondent. If

the proceedings are not reinstituted within thirty

days, all records of the proceedings shall be

expunged.

mentally ill person subject to hospitalization by court

order, it shall order his immediate discharge, and

shall expunge all record of the proceedings during

this period.

APPENDIX J

Miscellaneous Labor Provisions

(in part)

Section 4113.52 Employee to report violations of state

or federal law: retaliatory conduct

prohibited.

(A)(1)(a) if an employee becomes aware in the course of

his employment of a violation of any state or federal

statute or any ordinance or regulation of a political

subdivision that his employer has authority to correct,

and the employee reasonably believes that the violation

either is a criminal offense that is likely to cause an

imminent risk of physical harm to persons or a hazard to

public health or safety or is a felony, the employee orally

shall notify his supervisor or other responsible officer of

his employer of the violation and subsequently shall file

with that supervisor or officer a written report that

provides sufficient detail to identify and describe the

violation. If the employer does not correct the violation or

make a reasonable and good faith effort to correct the

violation within twenty-four hours after the oral

notification or the receipt of the report, whichever is

earlier, the employee may file a written report that

provides sufficient detail to identify and describe the

violation with the prosecuting authority of the county or

municipal corporation where the violation occurred, with

a peace officer, with the inspector general if the violation

is within his jurisdiction, or with any other appropriate

public official or agency that has regulatory authority

over the employer and the industry, trade, or business in

which he is engaged.

(b) If an employee makes a report under division

(A)(1)(a) of this section, the employer, within twenty-

four hours after the oral notification was made or the

report was received or by the close of business on the

next regular business day following the day on which the

oral notification was made or the report was received,

whichever is later, shall notify the employee, in writing,

of any effort of the employer to correct the alleged

violation or hazard or of the absence of the alleged

violation nor hazard.

(3) If an employee becomes aware in the

course of his employment of a violation of

Chapter 3704., 3734.,6109., or 6111. of

the Revised Code that is a criminal

offense, the employee directly may notify,

either orally or in writing, any appropriate

public official or agency that has

regulatory authority over the employer and

the industry, trade, or business in which he

is engaged.

(B) Except as otherwise provided in division (C) of this

section, no employer shall take any disciplinary action

against an employee for making any report authorized by

division (A)(1) or (2) of this section, or as a result of the

employee’s having made any inquiry or taken any other

action to ensure the accuracy of any information reported

under either such division. No employer shall take any

disciplinary or retaliatory action against an employee for

making any report authorized by division (A)(3) if this

section if the employee made a reasonable and good faith

effort to determine the accuracy of any information so

reported, or as a result of the employee’s having made any

inquiry or taken any other action to ensure the accuracy of

any information reported under that division. For the

purposes of this division, disciplinary or retaliatory action by

the employer includes, without limitation, doing any of the

following:

(1) Removing or suspending the employee from

employment;

(2) Withholding from employee salary increases or

employee benefits to which the employee is

otherwise entitled; |

(3) Transferring or reassigning the employee;

(4) Denying the employee a _ promotion _ that

otherwise would have been received;

(5) Reducing the employee in pay or position

(D) An employee shal] make a reasonable and good faith »

effort to determine the accuracy of any information reported

under division (A)(1) or (2) of this section. If the employee

who makes a report under either division fails to make such

an effort, he may be subject to disciplinary action by his

employer, including suspension or removal, for reporting

information without a reasonable basis to do so under

division (A)(1) or (2) of this section.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.