Prologue — Uberoi v. City of Boulder

2

bianca ae

O: .. No. __ =

oak SA es CLERIC

IN THE SUPREME COURT OF THE UNITED STATES

Mahinder S. Uberoi, petitioner,

v.

City of Boulder, et al., respondents.

Mahinder S. Uberoi, petitioner,

v.

Henry F . Anton, et al., respondents.

PETITION FOR THE WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAHINDER S. UBEROI, pro se

819 Sixth Street

Boulder, CO 80302

303-442-2879

Questions Presented

J. Whether District Judge John L. Kane was

disqualified for several independent reasons stated below?

(a) The respondents Anton et al. are the Regents and

officials of the University of Colorado. Petitioner sued them

for their employment discrimination against him because of

his Asian Indian origin. In 1996 Judge Kane successfully

applied to teach a course at the University. He was paid

$5000.00. His request to teach again was denied but he

continued to seek such employment even when petitioner's

suit against the Regents and the officials of the University

came before him. For instance, on April 22, 2003 he

submitted an 8-page application to teach a course at the

University. On September 8, 2003 he dismissed petitioner's

case against the Regents and officials of the University

incorrectly claiming that the petitioner had disobeyed his

orders. On December 16, 2003 he was appointed to teach the

course for pay of $3273.00. 28 U.S.C. § 455 (a) requires that

a judge shall recuse himself if “his impartiality might be

reasonably questioned.”

(b) In 1988 Judge Kane took disability retirement

under 28 U.S.C. § 372 (a), having been diagnosed as

suffering from sleep apnea which is characterized by a

cessation of breathing during sleep, which he claimed was

caused by the stress of his judicial duties. After some two

years, as a Senior District Judge, he was assigned limited

judicial duties.

His health was further declining when on July 2,

2002 petitioner's case against the University was assigned to

him. And he developed breast cancer. Finally, he announced

that he will not hold any hearings from August 25, 2003 to

December 31, 2003. And he will work in his chambers or at

home. He had no or severely diminished physical and mental

ability to perform his judicial duties when on September 8,

2003 he wrongly dismissed petitioner's case against the

Regents and officials of the University.

ii

(c) The November 22-28, 2001 issue of the weekly

newspaper WESTWORD features Judge Kane. It is entitled

KANE MUTINY. It states that Judge Kane held an informal

“hearing” in his chambers at the U.S. Courthouse to

denounce the federal drug laws because they are unjust and

persons convicted of drug abuse can avoid time if they are

related to a prominent politician. The paper quotes Judge

Kane:

“Then there is Arizona Senator John McCain's wife,

Cindy McCain, who admits to stealing Percocet and Vicodin

from a charity. Even though illegal use of the pills -

classified by the government as schedule 2 drugs which puts

them in the same class as opium - carries a penalty of one

year in prison, McCain is allowed to enter a treatment

program, instead. This is a kind of crap, the hypocrisy of the

whole thing...A couple [of judges] have said that | am

fomenting disrespect of the law. Most say that that ‘] can't

give the appearance of being biased.””

Judge Kane is unable to administer the law without

regard to his extreme personal views and bias.

2. Whether the Tenth Circuit's refusal to order the

disqualification of District Judge Kane is in conflict with the

decisions of every other circuit in identical or similar

circumstances?

3. Whether the Tenth Circuit's allowance of District

Judge Kane to resolve petitioner's motion to disqualify Judge

Kane is in Conflict with the Fifth Circuit Practice that a

motion to disqualify a District Judge is heard by a District

Judge from another District?

4. Whether the Court of Appeals’ statement that in

1989 petitioner was enjoined from appearing pro se in the

federal district of Colorado because he had filed pro se

numerous frivolous and vexatious suits in the district is

ill

refuted by the record which shows that petitioner had filed

only two cases?

In the one case the Court ordered petitioner to engage

-in discovery for nearly four years, even though the

defendants had not answered the complaint because they

were resting on their motion to dismiss. The court resolved

the motion nearly four years after it was filed. Then, the

defendants answered the complaint, but before that the court

set a date for discovery cut off. The court dismissed the case

for petitioner's failure to meet the deadline. The court

claimed that petitioner had more than sufficient time to

complete discovery, nearly four years before the answer was

filed and seven weeks after the answer was filed.

The other case was dismissed on defendants’

fraudulent motion that it had become moot. It later proved

not to be moot.

5. Whether the Tenth Circuit Court of Appeals’

statement that petitioner recently filed a frivolous suit in the

U.S. District Court for the District of Columbia is refuted by

its own follow up statement that the Appellate Court

affirmed the dismissal of the complaint for failure to state a

claim?

The Tenth Circuit also stated that petitioner also filed

an unsuccessful petition for writ of mandamus with the same

federal district which he never did.

6. Whether the 1989 invalid and expired injunction

-prohibiting petitioner from appearing pro se should have

been vacated or modified because of the changed

circumstances, such as the fact that he had paid the attorney

fees assessed against him which was the main reason for the

injunction?

7. Whether the district court orders dismissing

petitioner's two civil rights cases for his failure to retain an

attorney to represent him in the two cases should have been

iV

amended or modified on petitioner's motion that in several

documented attempts he was unable to retain an attorney

within the few business days allowed by the court?

8. Whether the clerk of the U.S. Court of Appeals for

the Tenth Circuit acted without jurisdiction in the

consolidated cases when he refused to transmit to the en banc

court petitioner's motion for leave to file a one day late

petition for rehearing and rehearing en banc, instead he

transmitted the motion only to the 3-judge appellate panel

which without jurisdiction denied the motion and thus

prevented the full court from exercising its en banc power

under 28 U.S.C. § 46 (c) to resolve the motion?

9. Whether the courts of the Tenth Circuit have

denied petitioner a fair opportunity to litigate his civil rights

cases such as by three times ordering petitioner to file a pre-

trial order when the defendants in the case had not even

answered the complaint because they were resting on their

motion to dismiss the case which the court had not resolved?

List of the parties in the two cases that were

consolidated in the United States Court of Appeals for the

Tenth Circuit. Petitioner seeks review of the judgments of the

Court of Appeals in the two consolidated cases.

MAHINDER S. UBEROI,

Petitioner,

v.

CITY OF BOULDER; K. YOKOMIZO-BURTON; DON

SPICELY; GRETCHEN KING,

Respondents.

MAHINDER S. UBEROI,

Petitioner,

Vv.

HENRY F. ANTON; MAUREEN JOHNSON EDIGER;

SUSAN C. KIRK; TOM LUCERO; JIM MARTIN;

NORWOOD L. ROBB; JERRY G. RUTLEDGE; ROBERT

SIEVERS; PETER STEINHAUER; JOHN BUECHNER;

RICHARD BYYNY; PHILLIP DISTEFANO; ROSS

COROTIS; MICHAEL LIGHTNER; WILLIAM M.

MARINE; THOMAS J. NAPIERKOWSKI; ROBERT L.

LORCH; ROBLEY D. RHINE,

Respondents.

vi

TABLE OF CONTENTS

TD EERE Fer ey perp See DERS. i

Fe IO vith acicsctsconacihacvatentesdicinaesiieaned Vili

SUN IN cab cn nxtnich euhcucrncsedondstcisenkaatensauatancen 2

I. sais spnting inka cajnbnnscinabavckéerkbeurbideadeatins weaed

IG IIE saints isd Kats dtestaisndivesedimonsiomaminan 3

I OE NOD ns isiisedis iden ca danivdadycicasccanbasuupacys 5

Reasons for Granting the Writ ..................:cceeeeeeeeeeeees 7

I. District Judge Kane was required to recuse himself

for several independent reasons....................:sc0sseceeeees 7

Judge Kane’s 1996 part-time employment with

defendants regents and his continued interest in such

II bids ini dd adit Bon piinincknindiconcketcadenia 7

Judge Kane’s 2003 successful application for part-

time employment with defendants regents ............ 8

Judge Kane was in ill health and unfit for his judicial

Ria. Biscecttstcca ai oixiaccimeeel 8

Judge Kane’s Mutiny against our constitutional

Ris iaiss inesiavdsusencandsstdssiccnbautedaseatvannenes 9

II. Tenth Circuit’s refusal to order District Judge Kane

disqualified is in conflict with the decisions of every

other circuit in similar or identical circumstances...10

Tenth Circuit’s opinion aiso conflicts with opinion of

district courts in other Circuits.................ceeeeeeen 11

iI. Tenth Circuit’s allowance of District Judge Kane to

resolve petitioner's motion to disqualify Judge Kane

is in conflict with the Fifth Circuit practice that a

motion to disqualify a District Judge is heard by a

District Judge from another District................... 12

IV. In resolving petitioner’s motion to vacate or modify

the injunction the courts below did not consider the

change in the circumstances and the law.............. 13

Vii

V. Petitioner’s Motion for Leave to file One-Day Late

Petition for Rehearing- and Rehearing En Banc

remains unresolved by the Court of Appeals......... 14

SII 2 i sinckscnckedpabcdnoiainsshe etoile 15

APPENDIX

Denial of petitioner’s Motion for Leave to file One-Day Late

Petition for Rehearing and Rehearing En Banc by a 3-judge

ONNOE CE Gee TONE II si sisccscinien sins ninapesdennasantoaes Al

Denial of Petition for Rehearing by a 3-judge panel of the

TD CON va icc as ccvsstccnccdiscicdscckncnscimoumsuie A2

Order and Judgment of 3-judge appellate panel Affirming

District Court’s Dismissal of petitioner’s two civil nights

District Court’s denial of petitioner’s 3 post-judgment

motions in his one civil rights case, (1) Motion to Randomly

_ Select a District Judge from Another District Who Shall Hold

a Hearing on Motion to Disqualify Judge Kane, (2) Motion to

Disqualify Judge John Kane from Ruling on Plaintiff's

Motion to Alter or Amend Judgment and (3) Motion to Alter

or Amend Judgment Under Rule 59......................0000. A5

District Court’s Denial of Petitioner’s 3 post-judgment

Motions in his other civil rights case..................2..2.+++-A6

District Court’s Dismissal of petitioner’s one civil rights

viii

Tenth Circuit's Denial of Petition for Rehearing of the

IE III bcc dev eccdccbccccodcchsccnsesecessetoqnene Al0

District Court’s Order that petitioner’s civil right complaint,

filed pro se, will be dismissed unless within 30 days he

i UNI ain. on crate btssncesasiesiidunsbaipen de All

District Court’s Order that petitioner’s other civil right

complaint, filed pro se, will be dismissed unless within 30

E.G TOTALS GR GIGTEIGY oc ccc cccicccsccccccccscccccossoossn Al2

Order and Judgment of 3-judge panel of the Tenth Circuit on

Be EY GION oe cccticcccccccccstcccecccsccsececcses Al3

District Court’s Order Staying petitioner’s one civil rights

case, pending final resolution of petitioner’s interlocutory

PSERE BY TE TORE CIBOUIR. 2.20. cccccccccccvccccccceccesccoese Al9

District Court’s Order Staying petitioner’s other civil rights

District Court’s Order Refusing to Vacate or Modify

Injunction prohibiting petitioner from appearing pro se in his

RRR E RESTS LINO CE SEPT Te A2l

District Court’s Order Refusing to Vacate or Modify

Injunction prohibiting petitioner from appearing pro se in his

in cnc ck dubccnecaueucseccccsessactacea A22

TABLE OF AUTHORITIES

Harper v. Young, 64 F.3d 563 :

Poe A, 0 POD SO DORON. ccovccecccccccccsccccccccecccccsccsess 14

Matter of Continental Airlines, 981 F.2d 1450

Nn os scsncecspaceabossanecossvecesagntes 10

Pepsico Inc. v. McMillen, 764 F.2d 458 (1985)............... 10

ix

Potasnick v. Port City Const. Co., 609 F.2d 1101, 1106-

FPPC si stich ech cinthiiscncatpindctidecadl 12

Procup v. Stricland, 792 F.24 1069 (11"™ Cir. 1986)......... 13

Scot v. United States, 559 A.2d 745 (D.C. App. 1989)...... 11

Smith v. Sikorsky Aircraft, 420 F. Supp. 661

Es MPs captid dis babied itunepdesesiatsstinbaebaccuie ll

State of Colo. ex rel. et al. v. Jack E. Flemming, No.89-1040

slip op. (10" Cir. October 10, 1989)...........0000ccccceeeeeeee 13

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 418

NGF hncsccticcnoveddevicicsesdinahintiabh dete piteetntger tceons +

United States v. Conforte, 624 F.2d 869, 881

Pe a ac ne de 10

United States v. Moskovits, 866 F Supp 178 1994)............. 11

Western P.R. Corp. v. Western P.R. Co., 345 U.S. 247, 261

CR iis ticiasitdencdaidineintipccpudpabinaniinmadaatdebbakiiteins site 14

Young v. Harper, 520 U.S. 143, 147 n. 1(1997)............... 14

Statues:

Be Ce OD sicketitincsacitsrecncvee 4,7, 8, 10, 11, 12

Be hs EE OO chitin cdedntniceahecsccubichbttersdddaaihaen 4,6, 14

Se hae OT OED ecdcnccdcensccadencsadunecialnapeeibesisscsiiedl 4

Fe BAe BR tative cheep tuintoccseinapnetndinhsaidietudaoensiaiin 3

BP MIG OF TIE. Sncuaqnscninncochasebsudussstbahsceddddesbeansiadem 2

i PEED cicpuinckdadttecickpadinagdsasdimsbatienceeuanl 2

Re RD cidcen insnnatinsizncnteqcicecuidvetm bein 2

BP A ee eidiniccinsitntabirceddscccindicbeb heeded 2

Be a ci ciciperstiniaiecatthion Nellis siinsielh siesaris cae i te cea 2

ee hes OF Sic ichsastnincatecsdcacedsacdeanibeataaonan 2

Ee Sie Et Oins) Ssecakeensivaaseckdchaatentanimaicisteataiatied 2

Ee nn BE i enntea tiik esi tana tekpwiccncentiigamiinbescokantin 2

G8 UFeis OF a teildncndhncsdabhendcqsdttpuidetasecen Raaieas siete 2

SOE I Cr cdatsitetiederncedatetaisccetsbantccgalstaaen 2

U.S. Constitution Amendment IV......................2..22..000 2

U.S. Constitution Amendment V.......................2..ceeeeeee 2

Rules:

ABA Code of Jud. Conduct. Cannon 3, subd. C(I)............ 1!

Te re Pree Perper rer eer eT ry 3, 6

Standard References:

Almanac of Federal Judiciary............cccccceccccccsecccceeees 8

I Sse 2 et piedousauedaukelssauuw 4

ND AE MN i ina dicbh dns budaedwensnasedwoutes 5

ns a os cs csedaeicdomadcnaabation 5

Acts:

ee We ND WAGE sg inca ca cadincocacichoavenancavdden 2,5

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2004

Mahinder S. Uberoi, petitioner,

v.

City of Boulder, et al., respondents.

Mahinder S. Uberoi, petitioner,

Vv

Henry F. Anton, et al., respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

The petitioner, Mahinder S. Uberoi, respectfully

prays that a writ of certiorari issue to:

(a) review the judgment of the United States Court of

~ Appeals for the Tenth Circuit. on the interlocutory appeal

entered in the above proceedings on May 1, 2003, rehearing

denied on August 27, 2003 and

(b) review the final judgment of the Court of Appeals

entered in the above proceedings on October 18, 2004

rehearing denied on December 17, 2004.