# Petition for Writ of Certiorari — Crenshaw v. Hodgson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 815

## Text

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
SE chs kedcan heey unde Kodbed ch was eae ehowes 28
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SEE gb Ne edidnbun 64h sbabnn sud sdanbes kee bedans
PT 6 5a 5 Shs ew RNKO TN SDK Oh ee pened ¥olncksanbasa

-iV-

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

Page 13

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1172%3A1. Public record. Not legal advice.