Petition for Writ of Certiorari — Glover v. City of Memphis

PUBLISHER'S NOTE :

ORIGINAL PAGINATION IS NOT CONTINUOUS.

Suprems Court, Us.

FILED

99577 JUL 2 9 1999

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED

STATES

MELVIN GLOVER, PETITIONER

Vs

CITY OF MEMPHIS, ET. AL.

On Petition For Writ Of Certiorari

To The United States Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

MELVIN GLOVER

2645 SMITH RIDGE

MEMPHIS, TN 38127

(901) 357-1177

IN THE SUPREME COURT OF THE UNITED

STATES

MELVIN GLOVER, PETITIONER

V.

CITY OF MEMPHIS, ET. AL.

On Petition For Writ Of Certiorari

To The United States Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

MELVIN GLOVER

2645 SMITH RIDGE

MEMPHIS, TN 38127

(901) 357-1177

8

QUESTIONS PRESENTED FOR REVIEW

I. Was the Sixth Circuit Court of Appeal’s “standard of

review" improper, when it reviewed the District Court's

decision de novo, in stead of for an abuse of discretion?

I]. Was it proper, which the Sixth Circuit held it was so, for the

District Court, in it’s frivolous determination under 28 U.S.C.

section 1915 (e) (2) (B) (i), to sua sponte make “findings of

facts” concerning tolling the Tennessee’s statute of limitation,

section 28-3-104, and thus summarily dismissing the

Petitioner's “initial pro se pleading” without any further

factual development of the record or without an opportunity to

amend?

IT]. Was there an abuse of discretion in not allowing Petitioner

to amend complaint pursuant to Rule 15 of the Federal Rules of

Civil Procedure, although the Defendants had not been served

with summons complaint and no answer being served?

IV. Did the Court commit abuse of discretion and judicial

misconduct by sua sponte dismissing complaint prior to

issuance service of process?

V. Did the Sixth Circuit conflict with its own ruling in the

Aiken County case, infra concerming an abuse of discretion

when considering the policy of liberality as involved in pro se

pleadings?

IV

TABLE OF CONTENTS

Content Page

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Reasons for Granting the Petition....................cccsccsssscossssonesees 8

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TABLE OF AUTHORITIES

Cases: Page

Denton 1. Hernandez, 504 U.S. 25 (1992)... 8

Black vy. Warren, 134 F. 3d 732 (Sth Cir. 1998)........ 8

Eratus vy. Deland, 49 F. 3d. 673 (10th Cir. 1995)......... 9

Czupib v. Card Rak, Inc., 916 F. Supp, 687 (N.D.

TO Nisaiosanticsesnntdnenian 9

Timgler v. Marshal . 716 F. 2d 1109 (6th Cir. 1983.... 9

Holloway v. Carey, 482 F. Supp. 551 (1979)............ 10

Stephenson vy. Gaskin, 539 F2d 1066 (1976)............. 10

Aiken County v. BPS Div, of Envirotech Corp., 866

F2d 661 (1989)..... 10

Marks y. Shell Oil Co,, 830 F2d 68 (1987)............0.. 10

Statue: Page

ED Fai, CU eetaisatniin icdiesesieavnintcaiidinbcinonaes 5

28 U.S.C. section 1915 (e)(2)(B)(i).............c.ccccceseeeeee 6

Tennessee Code Annotated section 28-3-104.............. 7

Federal Rule of Civil Procedures 15(a)..................068 10

1

LIST OF PARTIES TO "ROCEEDING

{ ] All parties appear in the caption of the case on the cover

page.

[x] All parties do not appear in the caption of the on the cover

page. A list of all parties

to is the proceedings in the court whose judgment is the subject

of this petition 1s as follows:

1. Melvin Glover - Plainuff

1. Robert Logan - Defendant (Party never served due to sua

sponte dismissal)

2. City of Memphis - Defendant (Party never served due to sua

sponte dismissal)

|

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

{ } For cases from federal courts:

The opinion of the United States court of appeals appears

at Appendix page to the petition and is

{ ] report at ; Or,

[ ] has been designated for publication but is not yet

reported; or,

[x] 1s unpublished.

The opinion of the United States district court appears at

Appendix page to the petition and is

[ ] report at ‘or

[ ] has been designated for publication but is not yet

reported; or,

[x] is unpublished.

[ ] For cases from state courts:

3

The opinion of the highest state court to review the merits

appears at

Appendix___to the petition is

{ ] report at ; OF:

[ ] has been designated for publication but is not yet

reported; or,

[ ] is unpublished.

The opinion of the court

appears at

Appendix to the petition and is

[ ] reports at ; OF;

[ ] had been designated for publication but is not yet

reported; or,

[J is unpublished.

JURISDICTION

[ x ] For cases from federal courts:

The date on which the United States Courts of Appeals decided

my cases was April 30, 1999.

[ x ] No petition for rehearing was timely filed in my

cases.

4

[ ] A timely petition for rehearing was denied by the

United States Court of Appeals on the following date:

, and a copy of the order denying rehearing

appears at Appendix

{ ] Anextension of time to file the petition for a writ of

certiorari was granted to and including (date) on

(date) in Application No. A-

The jurisdiction of this Court is invoked under 28

U.S.C.section 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my

case was . Acopy of that decision appears at

Appendix

{ ] A timely petition for rehearing was thereafter denied

on the following date: , and a copy of the order

denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of t

certiorari was granted to and including (date)

on in Application No. A-

The jurisdiction of this Court is invoked under 28 U.S.C.

section 1257(a).

5

STATEMENT OF THE CASE

The Petitioner was shot in the back by Memphis Police

Officer Robert Logan and consequently paralyzed from the

waist down on February 19, 1996. On March 1, 1996, Officer

Robert Logan was terminated from the Memphis Police

Department for using deadly force, taken into custody, and

charged with aggravated assault. While still in the hospital, on

February 27, 1996, eight (8) days after the Petitioner's injury,

attorneys were retained to represent the Petitioner in a cause of

action against both Officer Robert Logan and the City of

Memphis (hereinafter “Respondent” and “Co-Respondent”).

On December 30, 1996, ten (10) and one half months after

which the attorneys were to represent the Petitioner, the

attomeys withdrew from the Petitioner's case. On October 13,

1997, the Petitioner filed his complaint with the United States

District Court for the Western District of Tennessee's,

claiming, interalia, pursuant to 42 U.S.C. section 1983: (1) that

the Respondent willfully and deliberately used unnecessary

deadly force when he discharged his service firearm shooting

the Petitioner in the back; (2) where it was found in the

Memphis daily newspaper, The Commercial Appeal. that the

Respondent had been in numerous police administrative

6

hearings for unprofessional firearm-related conduct and had

been terminated for such conduct but rehired. Therefore, the

Petitioner claims that although the City of Memphis enforced a

policy to terminate Respondent Robert Logan for his

unprofessional firearm-related conduct in the Petitioner's case,

the City of Memphis was “grossly negligent” when it did not

enforce a more rigorous policy with the defendant in earlier

unprofessional firearm-related incidents, or, is it that, it is so

“common and well settled” for the Co-Respondent’s police

officers to have patterns of unprofessional firearm-related

incidents that result in unnecessary use of deadly force as to

constitute a “custom” or usage,” fairly representing municipal

policy: and (3) where the Petitioner filed his complaint after the

statute of limitations had expired, the Respondent asserted that,

Plaintiff has not been able to encourage not one attorney to

represent him in this cause, where they continuously put

plainuff off....And not one of those attorneys informed plaintiff

that he had a mght to represent himself and a Constitutional

right to bring his cause before the court to be remedied. These

rights were yet acknowledged until plaintiff received a phone

CO...

i a a ar a

7

On October 28, 1997 the District Court summarily dismissed

the Petitioner’s complaint pursuant to 28 U.S.C. section 1915

(e)(2)(B)(i). The Court held:

In any event....this complaint is clearly barred by the statue

of limitations. While Plaintiff alleges that he was hospitalized

for six week after the shooting and the gunshot injury rendered

him a paraplegic, he freely admits that he was notified by the

attorney of the one year stature of limitations when the attorney

decided not to pursue the civil claim against Logan

(Respondent) on December 30, 1996. Plaintiff does not allege

what attempts were made in the next month and one half to

retain an attorney..... He merely alleges that he was unable to

find an attorney and unaware he could file his complaint

himself. These allegations provide no basis sufficient to toll

the statute. .

On June 6, 1998, the Petitioner appealed the District Court's

judgment. In the Petitioner's brief, he presented three (3)

issues as follow:

(1) Whether the District Court abused its discretion under its

frivolous determination when it dismissed

Appellant’s complaint under 28 U.S.C. section 1915

(e)(2)(B)(i):

(2) Whether the Interest of Justice and the Federal Principles

of Equitable Tolling, in view of the facts,circumstances, the

seriousness, and substance of Appellant’s case, require a period

8

of the Tennessee’s one year statute of limitations under

Tennessee Code Annotated section 28-3-104 to be tolled; and

(3) Whether Appellants allege actions by the Respondent

that was taken under color of state law as defined under 42

U.S.C. section!I983. In the Petitioner's conclusion, the

Petitioner asked for an opportunity to be appointed counsel and

an Opportunity to amend his complaint.

On Apni 30, 1999, the United States Sixth Circuit Court

of Appeals, thus reviewing the Petitioner's Appeal de novo

denied the Respondent’s request for an opportunity to be

appointed counsel and to amend his complaint, concluded that

the District Court properly dismissed the Petitioner's

Complaint; and affirmed the District Court’s judgment. See

Appendix. This petition for Writ of Certiorari followed.

9

REASONS FOR GRANTING THE PETITION

The Petitioner submits that there are several reasons that

should compel the United States Supreme Court to grant

certiorari in this case.

The first reason is that the Sixth Circuits “de novo™ standard

of review conflicts with the United States Supreme Court's

holding in Denton 1. Hemandez, 504 U.S. 25 (1992). and other

Circuit Courts of Appeals. See Black 1. Warren, 134 F. 3d

732 (Sth Cir. 1998) ({a]s to the dismissal pursuant to section

1915 (e) (2) (13) (i), we review a determination by a District

Court that a case is frivolous for abuse of discretion).

The other reason that should compet the compel the Court to

grant certiorari in this case is because the District Coun

departed from the accepted and usual course of judicial

proceedings. Namely, the District Court made “findings of

facts” in its frivolous determination on the Petitioner's initial

pro se pleadings without any further factual development of the

record or without giving the Petitioner an opportunity to amend

his complaint. Denton v. Hernandez, supra (the section 1915

[(e)] frivolous determination, frequently made sua sponte, even

10

before the defendant has been asked to file an answer, can not

serve as a fact finding process for the resolution of disputed

facts).

A brief illustration of the District Courts Order of

Dismissal, Appendix page, will show that the Court_ used its

frivolous determination as a fact finding process for the

resolution of disputed facts concerning tolling the statute of

limitations and dismissed the Petitioner's complaint with

prejudice where was a need for further factual development of

the record. Thus, in the District Court’s Order of Dismissal,

Appendix page while being mindful that the “statute of

limitations in Tennessee for violations of section 1983 is one

year,” id., the Court recognized that Appellant’s injury

“occurred...more than one year before the filling of his

complaint.” At first glance, the Court determined that the

Petitioner's “complaint was clearly barred by the statute of

limitation.” Id.

However, after the Court considered the Respondent’s

allegations he asserted in support of his delayed filing and

recognized that the attorney that was to represent the Petitioner

lapsed ten and one half months of the one year limitation

SM Pe SEARO ie) apes Cptanczit aercmesamete

Publisher’s Note:

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13

Holloway vy. Carey, 482 F. Supp. 551 (1979). Also, in the Fifth

Circuit case of Stephenson v, Gaskin, 539 F2d 1066 (1976), the

Court held that pro se complaints so inartfully drawn that the

court cannot clearly determine grounds for claim of false

imprisonment is not dismissed in view of liberality with which

courts are required to construe pro se pleadings.

In this case, the United States District Court took it upon

itself to sua sponte dismiss Petitioner's complaint without the

complaint being served on the Defendants. The Petitioner

argues herein that the District Courts action is not only an act

of abuse of discretion but also judicial misconduct. Any issue

of timeliness of a complaint needs to be challenged by the

Defendant, not by the Judge. When a judge raises a defense on

behalf of a party, then the judge act as a third party to the

Complaint. In this case, if the Defendant had not raised the

defense of timeliness, then the defense may have been deemed

waived by the Defendant. This in itself is judicial misconduct.

Just as the Fourth Circuit has held in the case of Aiken County

v. BPS Div. of Envirotech Corp., 866 F2d 661 (1989), that

“District Court’s sua sponte amendment of plaintiff's

complaint was abuse of discretion...” the same should apply as

when a District Court sua sponte dismiss a case and raising

14

questions of law as well as facts to support dismissal prior to

issuance of process. Such dismissal should be considered a

gross abuse of discretion.

The Petitioner also holds to his argument that the Court

should have allowed him to amend his complaint and/or show

good cause as to why his complaint “may” have been filed

untimely, prior to dismissing nis complaint. The Plaintiff 1s

entitled to one amendment “as a matter of course’’ pursuant to

Federal Rule of Civil Procedures 15(a). The Sixth Circuit

itself has held in Marks 1. Shell Oil Co,, 830 F2d 68 (1987),

that “considering policy of liberality behind Rule 15, court

which fails to even consider motion to amend, much less grant

it, has abused its discretion.”

15

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Melvin Glover

Pro Se Petitioner

Date: 4 ~as-99

MELVIN GLOVER

2645 SMITH RIDGE

MEMPHIS, TN 38127

(901) 357-1177