Petition for Writ of Certiorari — Crenshaw v. Hodgson

01165 7 may -7 2002

Oo.

a *

a". OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

Zena D. Crenshaw, Petitioner,

V.

Anita M. Hodgson, et al., Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Zena D. Crenshaw, Petitioner Pro Se

Crenshaw Professional Offices

4581 Broadway Gary, IN 46409

(219) 980-2055 [fax](219) 887-8109

-

-

Question Presented For Review

1. Whether the United States Court of Appeals for the

Seventh Circuit transgressed your petitioner's right

to due process and equal protection by affirming a

district court decision against her upon essentially

determining that bias was not inevitable when the

trial judge became a central figure in the case;

selected his own successor after exonerating an

alleged accomplice and impugning the plaintiff's

personal and professional character on record; his

magistrate was linked to an apparent crime by the

plaintiff and thereafter rejected her contentions,

categorically; and the trial judge’s successor

responded to the situation by entering summary

judgment for the defendants on the plaintiff's federal

claims, rejecting al! of her discovery contentions sub

silentio.

Parties To The Proceeding

Oe et

Anita M. Hodgson

Ralph L. Cohen

Bonnie Gallivan

Ice Miller Donadio & Ryan

Joan Antokol

Hoffmann LaRoche, Inc.

Table Of Contents

Page

Question Presented .......-.--.se eee cece rete ee eeeees i

Parties To The Proceeding ........-- +++ ses+eeeeeeeees ii

Table Of Authorities .... 0.2.2.0... 6: eee ee eee ee eens Vv

Opinions Below ........ 6.0022 e cece reer ee eee sseeees 1

Jurisdiction ........ 6. eee e cece e eee e eee eeeeee 1

Statement Of The Case ........---- see e cece cece cece 2

Reasons For Granting The Writ .....-.---+--+--+++55: 17

“If we focus on fairness to the particular

litigants, . . . a careful study of Judge

(Moody’s) analysis of the merits of the

underlying litigation suggests that there is

a greater risk of unfairness in upholding

the judgment in favor of (the defendants)

than there is in allowing a new judge to

take a fresh look at the issues.” Liljeberg v.

Health Services Acquisition Corp., 486 U.S.

847 at 868 (1988) .........- 2. ee eee eee eee 20

The Honorable Harlington Wood, Jr.,

Michael S. Kanne and Ilana Diamond

Rovner resolved this case by unpublished

order, but have yet to announce the law

compelling them to condense the

underlying summary judgment response of

116 pages [with about eleven hundred

pages in exhibits] to one (1) paragraph of

operative facts, all supposedly without

weighing evidence, assessing its

truthfulness, making credibility

determinations, and/or improperly

disregarding inferences .......-.-----+---- 24

-ili-

The deliberative process at the district court

level in this case should be vacated to the

extent challenged on appeal to allow

commencement of a corresponding,

impartial trial disposition ................. 26

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Table Of Authorities

CASES .

Page

Aetna Life Insurance Co. v. Lavoie,

S5e Ua DEP COME hk a aR 4 10s eee ane sanenss 17,27

Bengdt v. U.S, 25S UG. Z2 (UFZ) ows cccccccssneenes 27

Cameron v. Frances Slocum Bank & Trust Co.,

O36 F.2d SPOGA. FP IGE) occ rcccdavcacceness 19

Crenshaw v. Dywan, et al., 34 F. Supp. 2d

Pat C4 ED. SU, Tae 6s here vet idieine wens’ 24

Kort v. Ball State University, 726 F.2d 1222

a Te poe en parr ee 22

Liljeberg v. Health Services Acquisition Corp.,

406 US. O47 ah BGR (URE) noe ccccsccecscccsess 24

Saunders v. Shaw, 244 U.S. 317 (1917) .............0.. 23

Sparkman v. McFarlin, 601 F.2d 261

hic FO BE 60h ose 20,28

Trust & Inv. Advisers, Inc. v. Hogsett, 43 F.3d 290

A TP Te cisendixuiseen eee 17,27

RULES

In the

Supreme Court of the United States

Zena D. Crenshaw, Petitioner,

V.

Anita M. Hodgson, et al., Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

Zena D. Crenshaw respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Seventh Circuit, affirming a summary

judgment of the United States District Court for the

Northern District of Indiana at Hammond, dismissing her

federal claims brought against the respondents pursuant to

42 U.S.C. §§1983 and 1985.

inions ow

The opinion of the court of appeals, including its

order on petition for rehearing, and that of the district court

are unreported and set forth, respectively, as Appendix A, B

and C.

lurisdictio

On December 20, 2001, the court of appeals entered

its judgment affirming a summary judgment by the United

States District Court for the Northern District of Indiana at

Hammond, dismissing your petitioner's federal claims

brought against the respondents pursuant to 42 U.S.C.

§§1983 and 1985. (Appendix A). She petitioned the

appellate court for rehearing with a suggestion of rehearing

en banc on January 2, 2002. That petition was denied on

February 6, 2002. (Appendix 8).

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

The jurisdiction of the district court was invoked

pursuant to 28 U.S.C. §§1331 (federal question), 1343

(deprivation under color of state law or regulation), 2201

(Federal Declaratory Judgment Act) and 1367 (pendent

jurisdiction).

Statement Of The Case

This case is for an unconstitutional abuse of process,

brought pursuant to 42 U.S.C. §§1983 and 1985 as well as

Indiana law by your petitioner, an African American, female

lawyer. (See, Pitf's !* Amd Cmplt, D.E. 48). She alleged

that the respondents conspired among themselves and with

a state judge to secure judgment against her exceeding

$14,000, and thereby retaliate for her efforts to expand

industry-wide liability for Hoffmann LaRoche, Inc.,

primarily if not exclusively because of her race and sex.

(See, Pltf's ' Amd Cmplt, D.E. 48). Your petitioner

contends that the referenced judgment was entered against

her without personal or subject matter jurisdiction due to

the lack of an underlying case and controversy premised on

Indiana Trial Rule 11. Nonetheless, the aforementioned

judge, former defendant Jeffrey J. Dywan, was dismissed by

district court judge Rudy Lozano pursuant to the doctrine of

judicial immunity. See, Crenshaw v. Dywan, et al., 34

F.Supp. 707 at 710-714 (N.D. Ind. 1999).

Less than four (4) months after Anita M. Hodgson

transferred this case from state court, your petitioner as

plaintiff moved for disqualification of Judge Lozano

pursuant to 28 U.S.C.§455(b)(1). (Pitf’s 1" Disg. Mtn., D.E.

16). The motion projects that the plaintiff will “. . .

propound discovery upon the Honorable Judge Rudy

Lozano and proceed to take his deposition . . . to produce

evidence relevant to her aforementioned claim and/or that

could reasonably lead to the discovery of admissible

evidence as to said claim.” (Pitf’s 1“ Disg. Mtn., p 2, 75,

D.E. 16). \t notes that “(o)n July 29, 1993, Judge Lozano

granted the respective defendant's motion to sanction (the

undersigned) and on March 31, 1994, imposed a monetary

judgment against her accordingly. Robert Buggs v. E.J.&E

- Railroad, Cause Number H92-0175, U.S. Dist. Court, N.D. of

IN, Hammond Div., Order of 7/29/93 and 3/31/94". (Pltf’s

1 Disg. Mtn., p 3, 97, D.E. 16). \t contends “(t)here are

apparent parallels between the sanction imposed upon (her)

by the Honorable Rudy Lozano and that levied upon her by

defendant Dywan”. (Pitf’s 1 Disq. Mtn., p3, 78 D.E. 16).

The motion concludes that “(t)he motives of each judge with

regard to the sanctions at issue will likely be or involve a

disputed evidentiary fact” and “(t)he Honorable Judge Rudy

Lozano has relevant personal knowledge, at least as to his

own motives”. (Pitf's I" Disg. Mtn., p 53, 913-14, D.E. 16).

In further defense of her first motion for

disqualification, the plaintiff elaborated:

Though it may be proper given the

constitutional rights at issue, she need not

resort to Judge Lozano’s mental impressions

for probative data. Inspiring events

involving her before his ascent to the bench

may prove relevant. See, Ash v. Chandler,

530 N.E.2d 303 (Ind. App. 3 Dist. 1988).

(Pltf’s Rply, p 2, D.E. 20). (emphasis added).

Judge Lozano subsequently determined that “(i)n her

motion for disqualification, Crenshaw does not imply that

the Court has any extrajudicial knowledge.” Crenshaw v.

Dywan et al., 34 F.Supp.2d 707 at 709 (N.D. Ind. 1999). He

adds “(b)ecause the Court will not submit to the deposition,

there is no need for the Court to recuse from this case.” /d.

at 710.

In support of propounding a subpoena duces tecum

upon Judge Lozano, your petitioner explained:

The plaintiff must prove that any

consistency between the case prompting this

litigation and alleged pattern(s) of bias

against minority attorneys is not fortuitous.

The fact finder will more likely conclude that

disposition of the precipitating case was

contrived as suggested if it significantly

parallels Buggs v. E.J.&E. Railroad, a

predecessor reportedly enhancing identical

pattern(s). Any direct or indirect link

between the presiding judges may move

these kindred cases further beyond

coincidence. The plaintiff initiated discovery

to confirm the extent to which members of

SPANGLER, JENNINGS & DOUGHERTY

served pro tempore for Room One of the

Lake Superior Court, Civil Division, while the

subject case pend before it. Relevant, mutual

influences may become apparent by such

investigation.

(Pitf's Subpna Spt, p 4, D.E. 32).

She added:

The plaintiff maintains that the circumstances :

common between her state and federal

sanctions, reasonably precipitate discovery to |

qualify the similar incidents as parallel ;

transactions. Discovery may reveal a scheme, |

personal between Judge Dywan and judge

Lozano; indicative of a practice or policy for

courts in Lake County, Indiana; directed at a

defined class; targeting the plaintiff;

generating an extrajudicial motive for

sanctioning her; and/or prompting Judge

Dywan to conspire with Anita Hodgson.

(Pitf’s Subpna Spt Rply, p 2, D.E. 36).

It was upon her subsequent motion that Judge Lozano

disqualified himself.

Former defendant Jeffrey J. Dywan, prevailed on his

motion to dismiss before Judge Lozano removed himself

from the case. See, Dywan at 714. The ruling never

acknowledges those of the plaintiff's contentions, leading

her to conclude as follows:

There was never a dispute between the

plaintiff and Hodgson’s clients for Dywan to

settle. By entering judgment against the

plaintiff in favor of Hodgson’s client, Judge

Dywan disposed of a case and controversy |

that did not exist in any substantive manner. :

“The case must be ‘of sufficient immediacy

and reality’ to warrant... relief.” Genentech,

Inc. v. Eli Lilly and Co., 998 F.2d 931 at 936

(Fed. Cir. 1993). Absent such a case and

controversy, there is not subject matter

jurisdiction for a court to exercise. See, City

of Indianapolis at 870, Ball Corporation v.

American National Can Company, 846

F.Supp. 731 (S.D. Ind. 1994) and Genentech,

Inc. v. Eli Lilly and Co., 998 F.2d 931 at 936

(Fed. Cir. 1993). Accordingly, Dywan’s

judgment between the plaintiff and

Hodgson’s client is void.

(Pitf's Brf Answrg Dywan Mtn to Dsms, p 4, D.E.

11).

Judge Lozano chastises the plaintiff:

The Court is very concerned with the

lack of legal research exhibited by Crenshaw

and what can be interpreted as an attempt to

“judge-shop.” See In the Matter of National

Union Fire Ins. Co. of Pittsburge, Pa., 839

F.2d 1226, 1229 (7 Cir. 1988) (“judges have

an obligation to litigants and their colleagues

not to remove themselves needlessly .. .

because a change of umpire. . . [may]

. facilitate judge-shopping”); Sullivan v.

Conway, 157 F.3d 1092, 1096 (7 Cir. 1998)

(noting that creating the ground on which

an attorney seeks recusal is “arrant judge-

shopping”). Furthermore, while it is unclear

whether Crenshaw chose to pursue this

matter on appeal, as an attorney, Crenshaw

should know that “[t]he proper procedure for

a party who wishes to contest the legality of a

court order enforcing a judgment is to appeal

that order and the underlying judgment.”

Henry v. Farmer City State Bank, 808 F.2d

1228, 1239 (7* Cir. 1986); Boalbey v.

Whiteside Cty. Bd. Whiteside Cty., Ill, No.

92C20040, 1992 W.L. 373038, *5 (N.D. Ill. Dec.

4, 1992). Therefore, this Court reserves the

right to issue sanctions against Crenshaw.

Dywan at 713-714. (emphasis added).

The matter was isolated for immediate appeal. It was

claimed that “(i)n order to leave Judge Dywan completely

unfettered by the threat of personal liability, this case must

be laid to rest with the entry of final judgment.” (Dywan

Mtn to Dsms Memo, p & D.E. 10).

In eventuallly disqualifying himself from this case,

Judge Lozano states:

In the first place, Judge Lozano

recalls litigating against Crenshaw in the

Ash _ case and unequivocally states that

Crenshaw’s allegations of his improper

conduct are completely false. The alleged

conversation between Judge Lozano and

Crenshaw in the recessed courtroom of Lake

Superior Court in East Chicago simply did

not occur, and, contrary to Crenshaw’s other

allegations, Judge Lozano did not act

inappropriately in any other aspect of this

case. In further support of the fact that

Crenshaw’s allegations are false, the Court

notes Crenshaw waited over twelve years

before first making them. She never brought

her allegations to the attention of the Indiana

Supreme Court Disciplinary Commission at

the time of the alleged incidents. She also

failed to raise her allegations with the Lake

Superior Court during the Ash case, either in

the form of a motion for state Rule 11

sanctions or in any other manner. To the

Court’s knowledge, Crenshaw did not even

bring her allegations to the attention of a

senior partner in her own law firm.

Furthermore, Crenshaw’s silence cannot be

attributed to the fact that she was an

inexperienced attorney too confused by Judge

Lozano’s alleged behavior to notify anyone,

as her motion appears to indicate. (Mot. at 4.)

Indeed, Crenshaw herself states that she

moved for state Rule 11 sanctions against

Judge Lozano’s co-counsel, hardly the action

of an attorney too inexperienced and

confused to respond to what she perceives to

be improper action against her. (Id. at 5.)

In addition, while Crenshaw states in

her motion that she appeared before Judge

Lozano after he took the bench in at least two

cases aside from the instant suit, the Court

notes that in neither of these cases did she

raise her current allegations against Judge

Lozano. (Id. at 6-10.) Indeed, even in the

instant case, Crenshaw did not raise her

allegations about Judge Lozano’s personal

behavior toward her in Ash from the outset

or even in her first motion to disqualify Judge

Lozano from this case. Thus, the number of

opportunities that Crenshaw had to raise her

allegations but did not further supports the

fact that the allegations are false. As a final

matter in this regard, the Court notes that

despite the false allegations that Crenshaw

has raised against Judge Lozano, Judge

Lozano has searched his conscience and finds

that he is not personally biased against

Crenshaw because of these allegations or for

any other reason.

(Lozano Disq. Order of 2/15/00, p 5-6, D.E. 78).

(emphasis added).

Based on his foregoing contentions, Judge Lozano

determined as follows:

As a final matter, the Court is

concerned with Crenshaw’s false allegations

concerning Judge Lozano’s improper conduct

toward her in the Ash case, allegations that

she has sworm to be true to the best of her

knowledge and recollection under penalty of

perjury. (Mot. at 18.) The Court also notes

that this is Crenshaw’s second motion for the

recusal of Judge Lozano, a motion that alleges

many incidents occurring years ago that

could have just as easily been included in her

first motion. (Mot. at 2-15.) As such, the

Court, in accordance with its duty under

Canon 3D(2) of the Code of Judicial Conduct

to report credible information of professional

conduct violations, is informing the Indiana

Supreme Court Disciplinary Commission of

Crenshaw’s filing of the instant motion. It

appears to the Court that the motion’s sworn

ey a ee ore Ee ee —s ere

allegations, which the Court finds to be

categorically false, were made for the

improper purpose of manipulating the

judicial proceedings in this case in violation

of Rules 3.1 and 3.3 of the Indiana Rules of

Professional Conduct, which prohibit a

lawyer from knowingly making a false

statement of material fact to a tribunal. Ind.

R. of Prof. Conduct R. 3.1, 3.3(a)(1); N.D. Ind.

L. R. 83.5(f) (stating that attorneys practicing

before this Court are governed by the Indiana

Rules of Professional Conduct); cf. Jn re Betts,

143 BR. 1016, 1020 (Bankr. N.D. Ill. 1992)

(noting that parties should not make

frivolous claims for the purpose of forcing a

judge to recuse).

(Lozano Disg. Order of 2/15/00, p 10-11, D.E. 78).

(emphasis added).

Your petitioner never prevailed on a single disputed matter

she presented to the district court thereafter.

On January 21, 2000, your petitioner filed her first

motion to compel in this case. (Pitf’s 1“ Mtn to Cmpl, D.E.

74). The motion remained pending on July 20, 2000 when

she preliminarily responded to the defendants’ motion for

summary judgment. (See, Pitf’s Ver. Rast for Extsn; Sptng

Afdvt, Brf & Ex. A’-G’, D.E. 88-91). The response includes a

26 page brief,’ essentially contending that the defendants’

motion does not comply with Federal Rule of Procedure 56.

(See, Pitt's Brf Sptng Ver. Rqst, D.E. 90). Your petitioner's

'Only the plaintiffs valediction and signature

appears on page 26.

10

subsequent reply further emphasized her contention that

“(t)he admissible evidence of record does not even

contradict those allegations of plaintiff's first amended

complaint that reasonably support an inference of

conspiracy.” (Pitf's Rply to Dfts’ Opp. / Ver. Rqst for Extsn,

Pp 2 DE. 93). The reply notes:

The defendants emphasize that this

case was filed in August of 1998. However,

most of them (i.e. all but defendant

Hodgson), would not even plead until late

November of 1999. Briefing generated by the

plaintiff's outstanding motion to compel

demonstrates that the parties disagree on

even the fundamental scope of discovery. . . .

As previously noted, resolution of the

plaintiff's motion to compel, “filed herein on

January 21, 2000. . . could eliminate some

current discovery disputes between the

parties and allow (her) to proceed with party

depositions.” . . . In the meantime, she

continues to factor the impact of numerous

proceedings on this case, some of which are

pending. ...

(Pitt's Rply to Dfts’ Opp. / Ver. Rqst for Extsn,

footnote #1, D.E. 93).

Subsequently, on August 24, 2000, the same day on which

she equated your petitioners first motion to compel with a

quest for “carte blanche discovery”, Magistrate Springmann

set the discovery deadline herein for November 1, 2000 and

required the plaintiff to answer the defendants’ motion for

summary judgment by December 4, 2000. (Springmann

Order of 8/24/00, p 3, D.E. 94). Substantial discovery

litigation ensued. ,

11 *

Your petitioner reported to the trial court that she

sent a draft of her second motion to compel with supporting

brief and exhibits to her opposing counsel, trying to

amicably resolve the discovery dispute they reflect, to no

avail. (Pitf's 2” Mtn to Cmpl, p 11, J 17 & 18, D.E. 99). A

near identical version of the papers was submitted for court

intervention on September 28, 2000. (Pltf’s 2” Mtn to Cmpl,

Sptng Brf & Exs., D.E. 99-100). The supporting brief initially

wrangled with the predicament imposed by the timing and

substance of Magistrate Springmann’s discovery orders.

(Pitt's 2% Mtn to Cmp! Sptng Brf, p 1-5, D.E. 100). \t

concludes?:

The Seventh Circuit affords Ms.

Crenshaw ”.. . the fullest opportunity to

adduce evidence in support of her claim”

which she has made for an

unconstitutional abuse of process. See,

Cohen at 827. The defendants have

allowed her the least opportunity to do so,

which resistance this Court rewarded by

waiting until August 24, 2000 to announce

?A corresponding footnote provides:

The Court cites Grimes v. Louisville

and Nashville R. Co., 583 F.Supp. 642 (1984),

to buttress its denial of so-called “cart blanche

discovery”. (See, Mtn to Cmpl Order of

8/24/00, p 5). However, the Grimes case

does not fully quote Cohen or emphasize that

both cases deny discovery when a requisite

claim for relief is not stated. See, Grimes at

650. (Pitt's 2“ Mtn to Cmp! Sptng Brt,

footnote #7, D.E. 100).

12

its departure from the following precedent:

In many cases of conspiracy

essential information can

only be produced through

discovery, and the parties

should not be thrown out of

court before being given an

opportunity through that

process to ascertain whether

the linkage they think may

exist actually does.

Sparkman v. McFarlin, 601 F. 2d 261 at 277

(C.A. 7th 1979). (citation omitted).

(emphasis added).

The plaintiff must proceed with more

certainty in this case. Unless the

defendants acquiesce, she can only pursue

discovery that will definitely establish a

critical link in her case and must explain

how it will do so before the evidence is

produced. (See, Mtn to Cmpl Order of

8/24/00). This burden translates into

about 60 days for the plaintiff to initiate an

invincible motion to compel responses to

most of the written discovery that she

propounded upon the defendants, contour

party depositions to its outcome, and

finalize discovery on more peripheral

matters that she intentionally postponed,

maneuvering to avoid related obstacles,

potentially created by perceived gaps in

her central case. In the meantime, her

deadline fast approaches for stating all the

13

genuine issues of fact to be litigated in this

convoluted case, still unfolding.

(Pltf’s 24 Mtn to Cmpl Sptng Brt, p 18-19, D.E.

100).

On October 24, 2000 Magistrate Springmann took the

matter under advisement, refusing to extend discovery as

requested and otherwise indicating she was no more

impressed with the plaintiff's second motion to compel

than she was by the plaintiff's first discovery motion.

(Springmann Order of 10/24/00, D.E. 117).

On October 30, 2000, your petitioner reported:

It is difficult to believe that Joan

Antokol resorted to blatant fraud just to

get out of this case. Nonetheless, the

pivotal question is whether she accurately

reported the role of Jane Matthews in

precipitating events. If she did not, the

Court could consider reinstating her as a

defendant. See, Neuberg v. Michael Reese

Hosp. and Medical Center, 166 F.R.D. 398

at 399-400 (D.C. N.D. Ill. 1996). If she did,

the Court should consider whether the

defendants or either of them and/or Ms.

Antokol conspired to suppress or

otherwise concealed that information

through illegal means. See, Feldberg, 862

F.2d 622 at 626 — (“... the prosecutor...

raised questions sufficient to call for a

careful inquiry in the district court. “).

(See, Pltf’s Ver Rsp of 10/30/00 p 11, D.E. 121).

14

By the time a possibility of fraud on the court became .

apparent, your petitioner was defeated in her effort to

depose defense counsel William P. Wooden and former

defendant Dywan as well as conduct a records :

deposition, targeting files of non-party Ronald E.

Elberger. She petitioned Judge Moody’ to allow the

aforementioned depositions. (See, Ver. Objs., D.E. 123).

She subsequently responded to the defendants’ motion

for summary judgment, providing an abundance of

documents and third-party, sworn statements for

support. (See, Pitf's Sum Jdgmt Rsp w Statemt of Issues,

Afdvt & Exs., D.E. 129-132).

On March 1, 2001, Magistrate Springmann ruled

on the plaintiff's second motion to compel. The Order

concludes:

The court has reviewed Plaintiff's

motion, attached exhibits A-], supporting

brief [DE 100] and reply brief [DE 115}.

The arguments presented are the same as

those raised in Plaintiff's first Motion to

Compel [DE 74]. Those arguments were

rejected by the court [DE 95]. Defendants’

brief in opposition to motion is well-taken

in all respects. The court incorporates by

reference the analysis presented by the

defense as its own, and ORDERS that the

Second Motion to Compel Discovery [DE

99] be DENIED.

*Judge Lozano concluded his disqualification order

by directing “The Clerk . . . to reassign this case to District

Judge James T. Moody.” (Lozano Disg. Order of 2/15/00 at

p11, DE. 78).

15

(Springmann Order of 3/1/01, D.E. 145).

Your petitioner subsequently reported to Judge Moody:

12. The plaintiff's first motion to compel is

two (2) pages. Its supporting brief is four

(4) pages and the corresponding reply is

three (3) pages. (DE 74&77);

13. Her second motion to compel is thirteen

(13) pages. Its supporting brief is nineteen

(19) pages and the corresponding reply is

four (4) pages. (DE 99 100&115);

14. The plaintiff's first motion to compel

hardly seems to encompass her second;

(Ver. Objs., p 3-4, 912-14, D.E. 147).

After citing negative personal undertones, ratified by

Magistrate Springmann from the defendants’ briefing,

your petitioner referenced extrajudicial motives, arguably

attributable to an apparent forgery associated with a

letter Magistrate Springmann seems to have generated

while in private practice, possibly tainting her discovery

orders as of March 2001. (Ver. Objs., D.E. 147). Without

addressing the potential impact of discovery withheld

from the plaintiff or the propriety of withholding that

discovery, Judge Moody granted summary judgment for

the defendants, dismissing the plaintiff's federal claims

with prejudice. (App. C). He made no reference to the

antics of Joan S. Antokol, nor their implications, but

chided the plaintiff for submitting “an oppressive”

summary judgment response. (See, App. C).

16

Reasons For Granting The Writ 2)

According to the U. S. Court of Appeals for the |

Seventh Circuit, “(a)lmost forty years ago, (this Court) "3

reaffirmed a simple but fundamental tenet of due process :

— “no man can be a judge in his own case and no man is

permitted to try cases where he has an interest in the

outcome.” Jrust & Inv. Advisers, Inc. v. Hogsett, 43 F. 3d

290 at 295 (C.A. 7* 1994). In this case, Judge Rudy

Lozano determined otherwise. He digressed from the

role of district court judge to that of an occurrence and

character witness as to extrajudicial matters; resumed his

role as judge; and then made post-disqualification

findings and determinations based on his own

testimonial, having insulated himself from cross-

examination through judicial ruling. Former U. S.

Supreme Court Justice Brennan reported that “while the

influence of any single participant in (the collective

deliberation) process can never be measured with

precision, experience teaches us that each member’s

involvement plays a part in shaping the court's ultimate

disposition.” Aetna Life Insurance Co. v. Lavoie, 475 U.S.

813 at 831 (1986). That outcome assumed the shape of

wholesale, district court losses for your petitioner once

Judge Lozano essentially deemed her a liar as a matter of

law.

The Seventh Circuit explains that “(a) decision

adverse to a party — even one adverse on all of the issues

raised — is not evidence of bias where that decision is

supported by the law and facts, as is the case here.” (See,

App A, p 3). Of course, your petitioner’s appellate brief

quoted the following trial-court determination, citing the

docket entry in which and the corresponding page on

which it appears: |

17

q

oy

yy

a

%

>

e.

<

_.. by alleging a conspiratorial agreement

to violate her rights, evidenced by the

request for and granting of attorney’s fees

against her when her conduct had not

previously been questioned, Crenshaw has

met her burden by ‘simply plead[ing) facts

from which a conspiracy can be

inferred."

Appellant's Brief, p 28. (emphasis added).

The brief notes that Judge Lozano’s successor “. . . does

not make clear how the law . . .” compels a different

analysis. See, Appellant's Briet, p 28. Neither does the

Seventh Circuit. (See, App A).

Without citing law or forging precedent through a

published decision, the district court explained:

Crenshaw’s lengthy response and

stack of exhibits chronicle her legal career

and saga with the Indiana Disciplinary

Commission, the Indiana Civil Rights

Commission, the Judicial Qualifications

Committee, the United States Judiciary

Committee, and various other agencies

and associations. This information is

largely irrelevant to her claims.

(App C p 8-9). (footnote omitted). (emphasis

added).

Neither the objective basis of that determination nor the

Seventh Circuit’s apparent decision to ratify it, is clear.

(See, App A).

As your petitioner indicated in her appellate of

briefing, “(r)esort to ‘the substantive law will identify |

which facts are material.’ See, Cameron v. Frances

Slocum Bank & Trust Co., 824 F.2d 570 at 574 (C.A. 7® _

1987).” Appellant's Brief, p 28. She referenced

substantive law in concluding as follows:

The plaintiff's summary judgment

response describes “. . . a radical departure

from normal judicial procedure, a

departure which, if proven, could provide

the factual basis for a reasonable inference

that the immune judge agreed (either

explicitly or implicitly) with another

defendant to violate (the plaintiff's)

constitutional rights.’ See, Sparkman at

279 and Pitf's Sum Jdgmt Rsp w Statement

of Issues, Afdvt & Exs., D.E. 129-132.

Appellant's Brief, p 28-29.

The district and circuit court essentially pronounced law |

when they respectively deemed your petitioner's |

submission inadequate to establish conspiracy pursuant

to the foregoing principle. Her supporting facts, deemed

immaterial to the kind of “radical departure” described,

should be identified if not published and/or analogized

to published law, consistent with their immateriality

being a matter of law. See, 7 CR. 53(c)(2). Otherwise

the law may be mocked and an underclass of federal

litigants forged whose cases are resolved by whim or

caprice, safely insulated from critical review by

unpublished decisions. The process has begun, at least

with your petitioner, and will advance only as far as this

Court allows.

19

“If we focus on fairness to the particular

litigants, .. . a careful study of Judge

(Moody’s) analysis of the merits of the

underlying litigation suggests that there

is a greater risk of unfairness in

upholding the judgment in favor of (the

defendants) than there is in allowing a

new judge to take a fresh look at the

issues.” Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847 at 868

(1988).

The respondents have not insisted that the state

court judgment culminating with this petition was

determined impartially. Instead, they contend that. . . if

Judge Dywan acted out of some personal bias against

Crenshaw, that suggests an independent act by Judge

Dywan and is inconsistent with any agreement (i.e.

conspiracy) among Dywan and Defendants to violate the

civil rights of Crenshaw.” (Apees’ Brf p 17). Actually,

such bias reconciles with “. . . a radical departure from

normal judicial procedure, a departure which, if proven,

could provide the factual basis for a reasonable inference

that the immune judge agreed (either explicitly or

implicitly) with another defendant to violate (the

plaintiff's) constitutional rights.” See, Sparkman v.

McFarlin, 601 F.2d 261 at 279 (C.A. 7" 1979). Yet, the

district court found “. . . Crenshaw has provided no

evidence that Judge Dywan and the defendants reached

an understanding to deprive her of her constitutional

rights, nor that the defendants were willful participants

in any joint activity with Judge Dywan . . .” (App C p

12). (emphasis added). The respondents pursued and

secured an unfounded judgment exceeding $14,000

against Ms. Crenshaw and her clients. (See, Appees’ Brf

p 8-10). Yet, the district court found “... there is no

20

evidence to support an inference that the defendants

conspired to inflict injury or harm on Crenshaw, and no

reasonable jury could conclude otherwise.” (App C p

14). (emphasis added).

On October 30, 2000, your petitioner reported:

It is difficult to believe that Joan

Antokol resorted to blatant fraud just to

get out of this case. Nonetheless, the

pivotal question is whether she accurately

reported the role of Jane Matthews in

precipitating events. If she did not, the

Court could consider reinstating her as a

defendant. See, Neuberg v. Michael Reese

Hosp._.and Medical Center, 166 F.R.D. 398

at 399-400 (D.C. N.D. Ill. 1996). If she did,

the Court should consider whether the

defendants or either of them and/or Ms.

Antokol conspired to suppress or

otherwise concealed that information

through illegal means. See, Feldberg, 862

F.2d 622 at 626 — (“... the prosecutor...

raised questions sufficient to call for a

careful inquiry in the district court.”).

(See, Pitf’s Ver Rsp of 10/30/00 p 11, D.E. 121).

The same court that referred Ms. Crenshaw for

disciplinary action, purportedly for manipulating judicial

process through deceit, ignored the foregoing, verified

report. According to the respondents:

Since Crenshaw did not ask the

court to withhold ruling on the summary

judgment and to extend the time for

21

answering Defendants’ motion for

summary judgment until the discovery

motions and objections had been ruled

upon, there was no reason for the district

court to suspend ruling on the motion for

summary judgment, after the deadlines

had expired, per the order establishing the

discovery deadline and the summary

judgment response time as December 4,

2000.

. (Apees’ Brf p 29).

Actually, the discovery motions and objections they

reference were rejected sub silentio when summary

judgment entered in their favor. See, Korf v. Ball State

University, 726 F.2d 1222 at footnote 7 (C.A. 7” 1984).

Ms. Crenshaw immediately appealed to Judge

Lozano’s successor when the prospect of bias on the part

; of Magistrate Springmann became substantial. (See, Ver.

: Objs. p 4-5, 7 18-23, D.E. 147). Again without factual

analysis and/or citation of precedent, the respondents

submitted:

Assuming, but never showing, that Judge

3 Lozano and Magistrate Judge Springmann

: harbored a bias against Crenshaw,

Crenshaw then assumes that Judge

Lozano and Magistrate Judge Springmann

somehow inflicted their bias upon Judge

Moody.

(Apees’ Brf p 21).

22

Though his disposition was not apparent prior to final

judgment, the respondents reported that“... Crenshaw

presents nothing on appeal as to Judge Moody because

Crenshaw never filed any motion to disqualify Judge

Moody based on his alleged bias, as required to raise

such an issue.” (Apees’ Brf p 21). “But when the act

complained of is the act .. . done unexpectedly at the end

of the proceeding, when the plaintiff in error no longer

had any right to add to the record, it would leave a

serious gap in the remedy for infraction of constitutional

rights if the party aggrieved in such a way could not

come here.” Saunders v. Shaw, 244 U.S. 317 at 320, 61

L.ed. 1163 at 1165 (1917).

As your petitioner's appellate brief indicates:

The Seventh Circuit “. . . (reviews) de novo

a district court’s grant of summary

judgment, viewing the record and all

reasonable inferences drawn from it in the

light most favorable to the party opposing

the motion. . . This standard is applied

with added rigor in (employment-related)

discrimination cases where intent and

credibility are crucial issues...”

Accordingly, (the Seventh Circuit) will

affirm the decision of the district court

only if, had the record before that court

been the record of a complete trial, the

defendant would have been entitled to a

directed verdict. Sarsha v. Sears, Roebuck

& Co., 3 F.3d 1035 at 1038 (C.A. 7” 1993).

Appellant's Brief, p 27-28.

Of course, any strict standard for determining whether

23

genuine issue(s) of material fact exist hardly matters

when parties are dismissed and facts are excluded by

other mechanisms‘. Yet the Seventh Circuit refused the

relief that should come “(i)f we focus on fairness to the

particular litigants, [and] a careful study of Judge

(Moody’s) analysis of the merits of the underlying

litigation [which] suggests that there is a greater risk of

unfairness in upholding the judgment in favor of (the

defendants) than there is in allowing a new judge to take

a fresh look at the issues.” See, Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847 at 868 (1988).

The Honorable Harlington Wood, Jr.,

Michael S. Kanne and Ilana Diamond

Rovner resolved this appeal by

unpublished order, but have yet to

announce the law compelling them to

condense the underlying summary

judgment response of 116 pages [with

about eleven hundred pages in exhibits]

to one (1) paragraph of operative facts,

all supposedly without weighing

evidence, assessing its truthfulness,

making credibility determinations,

and/or improperly disregarding

inferences.

Without noting that your petitioner sought

remand of her case for reconsideration upon

reassignment, the Seventh Circuit ruled that “Crenshaw

‘Judge Lozano dismissed his alleged accomplice on a

motion to dismiss while all of your petitioner’s discovery

contentions were rejected sub silentio, precluding

submission of facts possibly generated through that

discovery. See, Appellant's Brief, p 3-11.

24

has failed to identify with specificity any relevant

discovery which she was prevented from obtaining.”

(App A, p 4). Though reportedly limiting its

consideration to“. . . bare assertions that further

discovery could reveal bias on the part of the district

court judges and a conspiracy in the state court and in the

federal court as well”, the appellate court concluded “. . .

she has had ample time for discovery thus far...” (App

A, p 4). Such a limited analysis seems inadequate for a

comprehensive assessment of your petitioner’s discovery

opportunity. Also, its perfunctoriness seems to

undermine the rigors of that pivotal standard of review,

previously identified.

Seventh Circuit Rule 53(c)(2) provides:

When the decision does not satisfy the

criteria for publication . . . it will be filed as

an unpublished order. The order will

ordinarily contain reasons for the

judgment, but may not do so if the court

has announced its decision and reasons

from the bench. A statement of facts may

be omitted from the order or may not be

complete or detailed.

CR. 53(c)(2).

The Honorable Harlington Wood, Jr., Michael S. Kanne

and Ilana Diamond Rovner resolved this case by

unpublished order, but have yet to announce the law

compelling them to condense the underlying summary

judgment response of 116 pages [with about eleven

hundred pages in exhibits] to one (1) paragraph of

operative facts, all supposedly without weighing

evidence, assessing its truthfulness, making credibility

25

*

determinations, and/or improperly disregarding

inferences. Even Judge Moody concurred that “(i)n

determining whether a genuine issue of material fact

exists, a trial court must view the record and all

reasonable inferences drawn therefrom...” (App C p

10). (emphasis added). Ostensibly, the standard does

not dictate review of some portion of a record under

consideration, arguably selected through the reviewer's

whim or caprice. Yet, such a relaxed standard seems to

have been applied in this case.

The deliberative process at the district

court level in this case should be vacated

to the extent challenged on appeal to

allow commencement of a

corresponding, impartial trial

disposition.

Your petitioner contends that the deliberative

process not only produced error in this case at the district

court level, but was permeated with bias. It should be

vacated to the extent challenged on appeal to allow

commencement of a corresponding, impartial trial

disposition — relief more fundamental than the isolated

disqualification of a judge. Justice McKenna lends a

supportive rationale from another context:

The remedy by appeal is inadequate. It

comes after trial and if prejudice exists it

has worked its evil and a judgment of it in

a reviewing tribunal is precarious. It goes

there fortified by presumptions, and

nothing can be more elusive of estimate or

decision than a disposition of a mind in

which there is a personal ingredient.

26

Berger v. U.S., 255 U.S. 22 at 36 (1921).

Similarly, the Seventh Circuit determined that a

‘Petitioner is entitled to a neutral detached judge in the

first instance.’ Trust & Inv. Advisers, Inc. v. Hogsett, 43

F.3d 290 at 296 (C.A. 7* 1994).

Any preceding error was compounded by Judge

Rudy Lozano’s testimonial. Justice Brennan

posthumously suggests that it impacted “the collective

process of deliberation which shapes the court’s

perceptions of which issues must be addressed and, more

importantly, how they must be addressed.” See, Aetna

Life Insurance Co. v. Lavoie, 475 U.S. 813 at 831 (1986).

His brethren Justice Blackmun and Marshall counseled:

We should not attempt the perhaps futile

task of distilling (a judge’s) particular

contribution to determine whether the

result would have been the same had he

disqualified himself at the outset. I would

not want other appellate courts to read the

Court’s opinion today to suggest that such

an inquiry provides an appropriate

guarantee of due process.

Aetna Life at 833.

Judge Lozano postured the district court as the plaintiff's

nemesis, a role antithetical to jury trial in this case.

Judge Moody’s sentiments may not have

escalated to impermissible bias if Judge Lozano had

simply withdrawn at the first indication he was a subject

of this litigation. Moreover, if the case had been

27

pa aac ae iat ST

reassigned in accord with Local Rule 40.1 of the United

States District Court for the Northern District of Indiana,

Magistrate Springmann may not have presided, having

made potentially critical discovery rulings, when she was

linked to an apparent forgery stashed among the records

of Ash v. Chandler. See, L.R. 40.1. “In many cases of

conspiracy essential information can only be produced

through discovery, and the parties should not be thrown

out of court before being given an opportunity through

that process to ascertain whether the linkage they think

may exist actually does.’ Sparkman at 277.

Conclusion

For the foregoing reasons, your petitioner prays

that this Court exercise its power of supervision to insure

the proper functioning of the federal judiciary; address

the important federal question presented by this petition,

and resolve the referenced conflict between this case and

applicable precedent of this Court.

RESPECTFULLY SUBMITTED,

Zena D. Crenshaw, Petitioner Pro Se

Crenshaw Professional Offices

4581 Broadway Gary, IN 46409

(219) 980-2055 [fax](219) 887-8109

[Internet] crenshaw@jorsm.com

28

APPENDIX

APPENDIX A

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 28, 2001

Decided December 20, 2001

Before

. Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. MICHAELS. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 01-2045

ZENA D. CRENSHAW, ] Appeal from the

] United States

Plaintiff-Appellant, ] District Court for

] the Northern

] District of

v. : ] Indiana, Hammond

] Div.

ANITA M. HODGSON, et al, ]

] No. 98 C 522

]

Defendants-Appellees. ] James T. Moody,

] Judge

ORDER

Zena Crenshaw filed suit alleging claims under 28

U.S.C. §§1983 and 1985 and asserting a state-law abuse of

process claim against the defendants. The genesis of that

suit was a prior case, in which Crenshaw represented

Sylvia Ann Sanchez in a personal injury case against

Page |

Hoffman-LaRoche, Inc. in 1993 in Lake County Superior

Court. That Sanchez complaint stemmed from the

allergic reaction Sanchez’ daughter suffered when she

took the generic form of the drug Bactrim. The complaint

alleged that Hoffman-LaRoche was strictly liable for

failing to provide adequate warning for its drug Bactrim.

Because the complaint asserted that the generic drug

taken by Sanchez’ daughter was manufactered by

Biocraft Laboratory, and did not allege that Hoffman-

LaRoche designed, manufactured, sold, or provided

labeling for the drug, the Lake County court dismissed

the complaint for failure to state a claim. Crenshaw, on

behalf of Sanchez, then filed an amended complaint

alleging that Hoffman-LaRoche engaged in a civil

conspiracy with Biocraft to provide inadequate product

warnings. When Crenshaw refused to voluntarily

dismiss the amended complaint, Hoffman-LaRoche

moved for dismissal and attorney fees, arguing that the

amended complaint was frivolous. The court granted

that motion and awarded $14,134.00 in fees. Crenshaw

appealed the fee award, and the Indiana Court of

Appeals reversed, holding that the complaint was legally

sufficient because the facts had to be taken as true at that

stage of the proceedings, and therefore it was improper

to award attorneys’ fees.

Crenshaw subsequently initiated the present

litigation against the judge who granted the attorney fees,

the attorneys and law firm who represented Hoffman-

LaRoche in the Sanchez case, and Hoffman-LaRoche. The

complaint included claims pursuant to §§ 1983 and 1985,

as well as a state law abuse of process claim. The district

court granted the defendant’s motion for summary

judgment on the federal claims, and dismissed without

prejudice the state law claim.

Page 2

Crenshaw raises a number of challenges on

appeal, none of which have merit. She raises no direct

challenge to the legal reasoning underlying the summary

judgment decision. Instead, she asserts that Judge

Moody was biased, and that the bias was not apparent

until the decision was issued granting summary

judgment. Crenshaw never asserted any claim of bias

below, but even assuming we can consider the claim on

appeal, she has failed to raise any non-frivolous claim of

bias on appeal. Her claim essentially is that Magistrate

Springmann and Judge Lozano, who participated in prior

proceedings in this case, were biased against her, and

that their bias must have influenced Judge Moody.

Although Judge Lozano granted Crenshaw’s motion for

his disqualification, he did so based on the appearance of

bias rather than on any actual bias, and in any event there

is no evidence that Judge Lozano communicated with

Judge Moody regarding this case, or otherwise exercised

any influence over Judge Moody’s decision. Regarding

Magistrate Springmann’s alleged bias, Crenshaw again

failed to raise any such claim in the district court, and has

failed to supply any reason on appeal for this court to

hold that she was in fact biased. Crenshaw also seeks to

demonstrate bias on the part of Judge Moody by

asserting that Judge Moody failed to rule in her favor on

any issue in Crenshaw’s extensive briefing. A decision

adverse to a party - even one adverse on all of the issues

raised - is not evidence of bias where that decision is

supported by the law and facts, as is the case here. See

Gleason v. Welborn, 42 F.3d 1107, 1112 (7 Cir. 1994);

Byner v. Nezhat, 261 F.3d 1075, 1103 (11™ Cir. 2001).

There are no non-frivolous allegations of bias here.

Crenshaw also challenges the summary judgment

order by arguing that she should have been allowed to

conduct further discovery. In order to prevail on this

Page 3

claim, Crenshaw must demonstrate that the additional

discovery that she sought was likely to generate a

genuine issue of material fact. }Voods v. City of Chicago,

234 F.3d 979, 990-991 Cir. 2000). Furthermore, a

court's decision to consider a motion for summary

judgment before allowing certain discovery is reviewed

for abuse of discretion. /d. Crenshaw has failed to

identify with specificity any relevant discovery which she

was prevented from obtaining. Even considering her

generalized allegations, she has failed to demonstrate that

additional discovery is likely to generate a genuine issue

of fact. Instead, she relies on bare assertions that further

discovery could reveal bias on the part of the district

court judges and a conspiracy in the state court and in the

federal court as well. Those bare assertions, however, are

insufficient where, as here, she has had ample time for

discovery thus far, and has failed to obtain any evidence

of the alleged conspiracy. /d.; see generally Wright &

Miller, FEDERAL PRACTICE AND PROCEDURE, 10B

Fed. Prac. & Proc. Civ.3d § 2741 (2001). The district court

did not abuse its discretion in deciding the summary

judgment without allowing further discovery.

The other issues raised by Crenshaw are

unrelated to the summary judgment decision, or are not

preserved for appeal. As they would not impact the

summary judgment order that is before this court, they

are not a basis for reversal.

AFFIRMED.

Page 4

APPENDIX B

United States Court of Appeals

_ For the Seventh Circuit

Chicago, Illinois 60604

Argued November 28, 2001

Decided December 20, 2001

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 01-2045

ZENA D. CRENSHAW, ] Appeal from the

] United States

Plaintiff-A ppellant, ] District Court for

] the Northern

] District of

v. ] Indiana, Hammond

] Div.

ANITA M. HODGSON, et al., ]

] No. 98 C 522

J

Defendants-A ppellees. ] James T. Moody,

] Judge

ORDER

Plaintiff-appellant filed a petition for rehearing :

and petition for rehearing en banc on January 2, 2002. No

judge in regular active service has requested a vote on the

petition for rehearing en banc and all of the judges on the

panel have voted to deny rehearing. The petition for

Page 5

rehearing is therefore DENIED.

Page 6

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ZENA D. CRENSHAW,

Plaintiff,

ANITA M. HODGSON, et al.,

)

)

)

)

V. ) No. 2:98 CV 522

)

)

)

Defendants. )

ORDER

This matter is before the court on the defendants’

motion for summary judgment and motion to strike or

disregard. In her complaint, plaintiff Zena Crenshaw

alleges violations of 42 U.S.C. §§ 1983 and 1985 and

asserts a state-law abuse of process claim against

defendants Anita M. Hodgson, Ralph L. Cohen, Bonnie

Gallivan, Julie McMurray, the law firm of Ice, Miller,

Donadio & Ryan, and Hoffmann LaRoche, Inc.

Two preliminary matters deserve note. First,

defendants correctly note several procedural deficiencies

in Crenshaw’s response. First, Crenshaw’s response brief

is an oppressive 116 pages in length and seeks to

incorporate by reference another twenty-six pages she

filed in support of her request for an extension of time.

The 142 pages is far in excess of the twenty-five pages

permitted by local rule. See LOCAL RULE 7.1 (“Except

by permission . . . , no brief shall exceed 25 pages in

length . . .”) Leave to exceed the page limit is to “be

Page 7

granted only upon motion supported by extraordinary

and compelling reasons.” LOCAL RULE 7.1(d).

Crenshaw’s case does not present the compelling

justification contemplated by the Rule.

Second, LOCAL RULE 56.1(a) requires that the

nonmoving party:

serve and file any affidavits or other

documentary material controverting the

movant'’s position, together with a

response that shall include in its text or

appendix thereto a “Statement of Genuine

Issues” setting forth, with appropriate

citations to discovery responses, affidavits,

depositions, or other admissible evidence,

all material facts as to which it is

contended there exists a genuine issue

necessary to be litigated.

Crenshaw’s statement of genuine issues is a series of nine

questions that she (apparently) finds relevant. There is

neither mention of material facts, nor citation to

admissible evidence. “[T]he decision whether to apply

the [local] rule strictly or to overlook any transgression is

one left to [this] court’s discretion.” Little v. Cox’s

Supremarkets, 71 F.3d 637, 641 (7* Cir. 1995). In the

interest of judicial economy, the court will consider

Crenshaw’s response rather than engender further delay.

Crenshaw’s lengthy response and stack of exhibits

chronicle her legal career and saga with the Indiana

Disciplinary Commission, the Indiana Civil Rights

Commission, the Judicial Qualifications Committee, the

United States Senate Judiciary Committee, and various

Page 8

other agencies and associations.' This information is

largely irrelevant to her claims. The facts which are

relevant are as follows.

Crenshaw represented Sylvia Ann Sanchez in a

1993 Lake County Superior Court personal injury case

against Hoffman LaRoche, Inc. Sanchez’s complaint

sought to recover for injuries caused by a pharmaceutical

drug known as bactrim pediatric suspension. Curiously,

Sanchez did not claim that Hoffman LaRoche designed,

manufactured, sold, or provided labeling for the product;

and in fact, Sanchez’s complaint complained that the

drug was manufactured by Biocraft Laboratory, Inc., an

entity never joined as a party defendant to her suit.

Accordingly, on January 25, 1994, Hoffman LaRoche filed

a motion to dismiss the complaint. Judge Jeffrey Dywan

granted the motion and dismissed the complaint

pursuant to IND. T.R. 12(B)(6) for failure to state a claim.

Sanchez then filed an amended complaint alleging that

Hoffman LaRoche engaged in a “civil conspiracy” with

Biocraft to provide inadequate product warnings.

On March 30, 1994, Gallivan, an attorney

representing Hoffman LaRoche, contacted Crenshaw and

requested that she dismiss the amended complaint as

frivolous. Disagreeing, Crenshaw declined to voluntarily

dismiss the amended complaint. Hoffman LaRoche

accordingly moved to dismiss the first amended

complaint and for an award of attorney fees pursuant to

IND. CODE § 34-1-32-1, which permitted the recovery of

fees for frivolous, unreasonable, or groundless claims.

On October 19, 1994, Judge Dywan dismissed the

1Crenshaw’s brief seems to tell her story twice, much

of her first 50 pages of argument is copied verbatim later in

her brief.

Page 9

amended complaint. Sanchez unsuccessfully appealed

Judge Dywan’s decision, which was affirmed by the

Indiana Court of Appeals on December 21, 1995. On

November 27, 1997, an Indiana trial court found that

Hoffman LaRoche was entitled to an award of attorney

fees pursuant to IND. CODE § 34-1-32 -1(b)(2), and set

the matter for hearing on the specific amount, which was

later determined, on May 8, 1997, to total $14,134.00. On

August 18, 1998, the Indiana Court of Appeais reversed

that award.

The individual defendants in the present action

are Julie McMurray, an in-house attorney for Hoffman

LaRoche who never had any contact with Judge Dywan;

three attorneys —- Ralph Cohen, Bonnie Gallivan and

Anita Hodgson ---- who are outside counsel who work

with the law firm of Ice, Miller, Donadio and Ryan; and

Ice, Miller, Donadio and Ryan and Hoffman LaRoche,

who are also party defendants to the present action.

1. Standard of Review

A motion for summary judgment should

be granted when there is no genuine issue

as to any material fact and the moving

party is entitled to a judgment as a matter

of law. In determining whether a genuine

issue of material fact exists, “a trial court

must view the record and all reasonable

inferences drawn therefrom in the light

most favorable to the non-moving party.”

To defeat a motion for summary

judgment, the non-moving party cannot

rest on the mere allegations or denials

contained in his pleadings, but “must

_present sufficient evidence to show the

Page 10

existence of each element of its case on

which it will bear the burden at trial.”

- However, neither presenting a scintilla of

evidence, nor the mere existence of some

alleged factual dispute between the parties

or some metaphysical doubt as to the

material facts, is sufficient to oppose a

motion for summary judgment. The party

must supply evidence sufficient to allow a

jury to render a verdict in his favor.

Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1087-88 (7* Cir.

2000).

y 42 U.S.C. § 1983

“The purpose of § 1983 is to deter state actors, and

private individuals in collaboration with state officials,

from using a ‘badge of authority’ to deprive individuals

of rights guaranteed by the Constitution.” Fries v.

Helsper, 146 F.3d 452, 457 (7 Cir. 1998) (quoting Wyatt

v. Cole, 504 U.S. 158, 161 (1992)). Section 1983 provides:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage . . . subjects, or causes to be

subjected, any ... person... to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured ...

42 U.S.C. § 1983. In order to establish a claim pursuant to

§ 1983, “a plaintiff must demonstrate that: (1) the

defendant(s) deprived [her] of a right secured by the

Constitution or any law of the United States; and (2) the

Page 11

A i i At OTOL A i in. it, le. o

deprivation of that right resulted from the defendant(s)

acting under color of law.” Fries, 146 F.3d at 457 (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)).

Crenshaw fails to present any evidence of state action by

the defendants. “For an individual to act under color of

law, there must be evidence of a concerted effort betwen

a state actor and that individual.” Fries, 146 F.3d at 457

(citing Adickes, 398 U.S. at 152); Moore v. Marketplace

Rest., Inc., 754 F.2d 1336, 1352 (7 Cir. 1985). Because

Crenshaw seeks to establish a § 1983 liability via a

conspiracy theory, she must also demonstrate that “(1) a

state official and private individual(s) reached an

understanding to deprive the plaintiff of [her]

constitutional rights,” Fries, 146 F.3d at 457 (7® Cir. 1998)

(citing Starnes v. Capital Cities Media, Inc., 39 F.3d 1394,

1397 (7* Cir. 1994)); and “(2) those individual(s) were

“willful participant[s] in joint activity with the State or its

agents.” Fries, 146 F.3d at 457 (citing Adickes, 398 U.S.

at 152). Furthermore, while, “generally, private

individuals act under color of law when jointly acting

with a state official to deprive some person of [her]

constitutional right,” see Fries, 146 F.3d at 457 (7® Cir.

1998) (citing Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)),

“{o]f course, merely . . . being on the winning side of a

lawsuit does not make a party a co-conspirator or a joint

actor with the judge.” Fries, 146 F.3d at 457 (quoting

Dennis, 449 U.S. at 27-28). Furthermore, “mere

allegations of joint action or a conspiracy do not

demonstrate that the defendants acted under color of

state law and are not sufficient to survive a motion to

dismiss.” See Fries, 146 F.3d at 457. Because Crenshaw

has provided no evidence that Judge Dywan and the

defendants reached an understanding to deprive her of

her constitutional rights, nor that the defendants were

willful participants in any joint activity with Judge

Dwyan, Crenshaw has failed to present sufficient

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evidence from which a jury could conclude that the

defendants were acting under color of state law.

Accordingly, defendants are entitled to summary

judgment on Crenshaw’s § 1983 claim.

a 42 U.S.C. § 1985

Next, Crenshaw claims that the defendants

conspired to violate her civil rights in violation of 42

U.S.C. § 1985. In order to establish a § 1985 claim,

Crenshaw must demonstrate “(1) the existence of a

conspiracy, (2) a purpose of depriving a person or class of

persons of equal protection of the laws, (3) an act in

furtherance of conspiracy, and (4) an injury to person or

property or a deprivation of a right or privilege granted

to U.S. citizens.” Hernandez v. Joliet Police Dept., 197

F.3d 256, 263 (7* Cir. 1999) (citing Majeske v. Fraternal

Order of Police, Local Lodge No. 7, 94 F.3d 307, 311 (7*

Cir. 1996). “In order to establish the existence of a

conspiracy, the first element required in a § 1985(3) claim,

a plaintiff must demonstrate that the conspirators have

an agreement to inflict injury or harm upon her.”

Hernandez, 197 F.3d at 263 (citing Hampton v.

Hanrahan, 600 F.2d 600, 621 (7 Cir. 1979), rev’d in part

on other grounds, 446 U.S. 754 (1980)).

The conspirators must act with a single

plan, the general nature and scope of

which is known to each would-be

conspirator. The agreement may be

inferred from circumstantial evidence, but

only if there is sufficient evidence that

would permit a reasonable jury to

conclude that a meeting of the minds had

occurred and that the parties had an

understanding to achieve the conspiracy’s

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objectives.

Hernandez, 197-F.3d at 263 (internal citations omitted).

Here, there is no evidence to support an inference that

the defendants conspired to inflict injury or harm on

Crenshaw, and no reasonable jury could conclude

otherwise. Accordingly, defendants are likewise entitled

to summary judgment on Crenshaw’s § 1985 claim.

4. Abuse of Process

“[I]t is the well-established law of this circuit that

the usual practice is to dismiss without prejudice state

supplemental claims whenever all federal claims have

been dismissed prior to trial.” Groce v. Eli Lilly & Co.,

193 F.3d 496, 501 (7 Cir. 1999) (citing Khan v. State Oil

Co., 93 F.3d 1358, 1366 (7 Cir. 1996), vac. on other

grounds, 522 U.S. 3 (1997)). Crenshaw’s Indiana abuse of

process claim against the defendants is accordingly

DISMISSED.

IT IS THEREFORE ORDERED THAT defendants’

Motion for Summary Judgement (docket #85) is

GRANTED. Plaintiff Zena Crenshaw’s 42 U.S.C. § 1983

and § 1985 claims are DISMISSED WITH PREJUDICE.

Plaintiff Zena Crenshaw’s remaining state law claim is

DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED THAT defendant's

Motion to Strike or Disregard (docket #139) is DENIED

AS MOOT.

SO ORDERED,

Enter: March 26, 2001

JUDGE, UNITED STATES

DISTRICT COURT

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