Petition for Writ of Certiorari — Brandt v. King County District Court

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98 1 6'4 JUN | 1998

No. SFFICE 06 mae curs

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

WILLIAM H. BRANDT-——PETITIONER

VS.

KING COUNTY DISTRICT COURT

SHORELINE DIVISION—RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO

THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

William H. Brandt, pro se

19024 — 32™ Ave. NE

Seattle, WA 98155

Phone: (206) 363-8399

WY

QUESTIONS PRESENTED

Does a judge have immunity from

civil suit for tampering with court records

when the motive of the judge is to aid

one party against another party?

Does “claim preclusion” apply here?

Brandt seeks review of the unpublished

memorandum in the Ninth Circuit case No. 97-35745

filed May 20, 1998 under your Rule 10 © pursuant to

28 USC s1254 (1). Your authority is U.S. Constitution,

Amendment XTV and 42 USC s1983.

Brandt was sued in a state district court by a

collection agency over a disputed medical bill.

When Brandt appealed the judgment, a state judge

erased the audiotape record as a shortcut to a new trial

under state court rules. The judge’s main motive was to

cover up corruption and cronyism.

Lost was valuable testimony that incriminated a

crony’s client.

Brandt first filed in state court naming Court

Operations Manager Johnson as the Defendant but did not

accuse Johnson of anything. Brandt merely wanted

Johnson to respond to questions, and Johnson’s title

suggested that she was an appropriate respondent. When

Johnson’s answers pointed the blame to a judge, Brandt

tried to amend the title but was dismissed.

Brandt filed suit in federal court, but the District

Court dismissed Brandt as paranoid. The Ninth Circuit

said that Brandt did not refute “claim preclusion.”

The real question here is the limit to judicial

immunity. Brandt argues that such immunity serves

society only when it applies to judicial decisions made in

good faith. Immunity should not shield intentional

wrongdoing.

The record was erased not primarily to render a

better judgment but to “fix” a case for the judge’s friends.

But even well-intentioned tampering with court records

presents a serious hazard to society. This practice should

be permanently proscribed.

Wbb—k Bb

WILLIAM H. BRANDT

U.S. District Court

Western District of Washington at Seattle

No. C97-593WD

REPORT AND RECOMMENDATION

I. INTRODUCTION

On April 14, 1997, Plaintiff filed his complaint

in this Court, alleging that the Defendant, King County

District Court, Shoreline Division, tampered with and

destroyed the record of a civil trial held on February 20,

1996. (Doc.#1). Fiaintiff seeks $50,000 in damages.

Plaintiff concedes in his complaint that he originally

filed an action in state court involving the same

allegations against the Court Operations Manager,

Patricia Johnson, but the action was dismissed with

prejudice. (Doc. #1:2). The Court also notes that

Plaintiff has filed another action in federal court, related

to his current action, which is pending. (See 97-cv-795).

On May 12, 1997, Defendant filed a motion for

summary judgment. (Doc.s #6-#7). On May 14, 1997,

Defendant filed a motion and amended motion for a

protective order. (Docs. #10; #11; #13; #14). On May

19, 1997, Plaintiff filed responses to Defendant’s

motions (Docs. #17; #18) and also filed a cross-motion

to compel. (Doc. #19). On June 5, 1997, Defendant

filed a reply in support of summary judgment. (#20).

The Court, having read the motions, the briefs in

support and in opposition, and having reviewed the

remaining record, recommends that Defendant’s motion

for summary judgment be GRANTED, that

Defendants’s motion for a protective order and

Plaintiff’ s motion to compel be DENIED as moot, and

that this case be dismissed with prejudice.

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Il. BACKGROUND

In its motion for summary judgment, Defendant

argues that Plaintiff's claims are barred by principles of

res judicata because Plaintiff apparently litigated the

same issues raised in this case in state court. The facts,

which have not been disputed by Plaintiff through

affidavits or other responsive documents, were

summarized by Defendant as follows:

This case arises out of two separate lawsuits filed

in state court. The first case, West Coast Adjustors v.

Gee & Brandt, DC No. CV 95-001415; Sup. Ct. No. 96-

2-10209-1 SEA (“West Coast Adjustors”), was filed in

the Shoreline Division of King County District Court in

1995, and the trial court’s decision is on appeal in King

County Superior Court. The second case, William H.

Brandt v. Patricia M. Johnson, Sup. Ct. No. 96-2-27689-

8 SEA (“Brandt v. Johnson”), was filed in King County

Superior Court in December 1996. The case was

dismissed with prejudice on summary judgment on

April 11, 1997.

West Coast Adjustors v. Gee and Brandt

In West Coast Adjustors, an orthopedic services

group performed medical services for a Ms. Sylvia Gee.

A fee dispute arose between Ms. Gee and the orthopedic

group. The group’s claim for fees was assigned to the

plaintiff in the case, West Coast Adjustors. West Coast

Adjustors then initiated the action at issue against Gee

and Plaintiff Brandt.

A bench trial was held on February 20, 1996.

The triai court judge found Gee and Brandt liable and

dismissed their counterclaim. Gee and Brandt appealed.

In prosecuting their appeal, Gee and Brandt discovered

that the audiotapes from the trial were not available,

apparently due to a malfunction in the recording

equipment. As a result, the appeals court dismissed the

judgment against them and remanded for a new trial. |

On October 15, 1996, a second trial was held and

again judgment was entered against Gee and Brandt...

Unlike the first trial, however, the judgment was for

$933.14, or approximately $500 lower than the first

judgment.... The judgment also dismissed for a second

time Gee and Brandt’s State Consumer Protection Act

counterclaim.... The next day Gee and Brandt filed a

second ...appeal..... The case is currently pending on

review in King County Superior Court....

Brandt v. Johnson

On December 16, 1996, Brandt filed in King

County Superior Court against Johnson.... According to

the four paragraph complaint, Ms. Johnson either failed

to make an electronic record from Brandt’s first district

court trial or “deliberately destroyed [the record] in

order to conceal intentional judicial error.

On April 11, 1997, the superior court judge

entered a summary judgment order dismissing Brandt’s

complaint with prejudice. The judge specifically found

as follows:

Plaintiff has not met his burden of proving that

Defendant Johnson was negligent or committed fraud

against Plaintiff. As an additional basis for dismissal,

this Court further finds that there is no evidence that the

absence of the electronic record resulted in damages

because Plaintiff was granted a second trial in the

underlying district court action....

See attached copy of Order [of dismissal] dated April

11, 1997. (Doc. #7:2-5).

In opposition to summary judgment, Plaintiff has

not disputed Defendant’s version of the facts. Instead,

Plaintiff claims that a conspiracy is abound and that

Defendant is preventing him from determining, in his

own word, “whodunit.” The upshot of Plaintiff's case in

this Court is that the tapes of the first collection trial

were fraudulently destroyed:

One doesn’t have to be a great detective to realize that

the butler probably did it perhaps at the urging of the

chauffeur. Or maybe it was vice versa. Possibly a maid

helped. In any event, they were all acting in their

capacities as servants in the judicial branch of King

County government when they harmed the guests and

offended against the master (a.k.a. society.) Doc. #18:2.

On June 16, 1997, Plaintiff offered to settle his

claims against Defendant, as long as the State of

Washington and King County agreed to fund and

organize a “Consumer Protection Project” for five

million dollars, on which Plaintiff would serve as

investment advisor and draw a salary. (Doc.#18). There

is no indication in the record that Defendant accepted

the settlement offer.

il. DISCUSSION

The purpose of summary judgment is to avoid

unnecessary trials when there is no dispute as to the

material facts before the court. Zweig v. Hearst Corp.,

521 F.2d 1129 (9th Cir. 1975), cert. den’d, 423 U>S>

1025 (1975). Summary judgment is appropriate if there

is no genuine issue of material fact, and the moving

party is entitled to judgment as a matter of law. Swayze

v. United States, 785 F.2d 715, 717 (9th Cir. 1986)

(citing Fed. R. Civ. P. 56©). The standard provided by

Rule 56 requires not only that there be some alleged

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factual disputes between the parties, but also that there

be genuine issues of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986). Genuine

disputes are those for which the evidence is such that “a

reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U>S> at 248. Material facts are

those which might affects the outcome of the suit under

governing law. Id. Defendant has presented affidavits,

and other probative evidence, which indicates that there

is no genuine issue for trial and that Defendant is

entitled to summary judgment as a matter of law.

Defendant argues, in part, that Plaintiff's

complaint is barred by res judicata/claim preclusion

because of the previous Washington State court decision

in Brandt v. Johnson. (Defendant also raised issue

preclusion as a defense. Because of the recommended

disposition, the Court has not addressed this defense. )

In resolving this issue, the Court applies the claim

preclusion rules of the State of Washington. Parsons

Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 525

(1986). Under the doctrine of claim preclusion, as

applied by the Washington State courts, a (1) prior

determination on the merits between (2) the same parties

or parties in privity (taking into account the “quality” of

the parties) (3) regarding the same subject matter and

cause of action precludes a second action between the

parties. Shoeman v. New York Life, 726 P.2d 1 (Wash.

1986).

Applying these principles, Plaintiff's federal

cause of action is precluded by the decision in Brandt v.

Johnson, which dismissed Plaintiff's claim regarding the

destruction of the tapes on the merits. Plaintiff had the

opportunity in the state court to fully litigate his claim

that the tapes were fraudulently destroyed. His claim of

fraud and conspiracy in the present complaint,

amounting to an alleged due process violation of the

Fourteenth Amendment to the United States

Constitution, is in substance the same ciaim Plaintiff

made in state court. (See Doc. #7, Ex. B (Plaintiff's state

court complaint) (alleging that “loss of that record

damaged his case against West Coast Adjustors and

others”); Doc. #7, Ex. D (state court order) (noting as an

“additional basis for dismissal...that there is no evidence

that the absence of the electronic record resulted in

damages”)). Moreover, as an employee of the

Defendant, Ms. Johnson and Defendant are in privity,

considering the general allegations of fraud raised by

Plaintiff. See Kuhlman v. Thomas, 897 P.2d 365, 367

(Wash. Ct. App. 1995) (noting that privity usually exists

based on an employer/employee relationship). In all

respects, therefore, Plaintiff's federal complaint is

barred because he is attempting to pursue an identical

claim, previously dismissed on the merits in state court,

in this Court. (In addition to principles of claim

preclusion, the Court notes for the record that Plaintiff

has not stated a claim against Defendant under 42 USC

$1983. Supervisory or vicarious liability is not

appropriate in a 1983 action. Moreover, Plaintiff is

alleging conspiracy by the Court; as a result, his claim

for monetary damages would be barred by judicial

immunity because recording and taking transcripts of a

court proceeding are inherently within the jurisdiction o

court personnel.

PR IE A Met Me ~ —

IV. CONCLUSION

In light of the foregoing, it appears that there

exists no genuine issue for trial and that Defendants are

entitled to judgment as a matter of law. Accordingly,

the Court recommends that Defendant’s motion for

summary judgment be GRANTED.....

Dated 20 July 1997 DAVID E. WILSON, Magistrate

Ninth Circuit No. 97-35745 MEMORANDUM

Submitted May 14, 1998

Before: Schroeder, Trott, and Fernandez, Circuit Judges

William Brandt appeals pro se from judgment

entered in favor of the defendant in this 42 USC s1983

action. The district court entered judgment upon

adopting a recommendation from the U.S. Magistrate

that Brandt’s action be barred by application of claim

preclusion. We have jurisdiction, ... and affirm.

At the district court, Brandt argued that the claim

preclusion should not apply because: (1) he had been

deprived of the opportunity to fully litigate the merits of

his action in front of a fair and neutral tribunal; and (2)

the state court action was dismissed prior to his attempt

to amend his complaint to name the District Court as a

defendant. On appeal, however, Brandt raises only one

issue-whether “judges have immunity from civil suit for

tampering with court records.” He fails to present any

facts or legal argument concerning the grounds on which

the district court granted summary judgement, claim

preclusion. Although pro se appeals are to be liberally

construed, Brandt’s argument expressed before the

district court is deemed abandoned. Wilcox v.

Commissioner, 848 F.2d 1007, 1008 n.2 (9th Cir. 1988)

(issue deemed abandoned where pro se litigant failed to

address it in brief). AFFIRMED.

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