Opposition Brief — Hoang v. Ummel

*. FILED

No.02-156 24

AUG SO 2002

aac

OFFICE OF THE CLERK

IN THE :

Supreme Court of the United States

LIEU B. HOANG,

Petitioner,

v.

JERRY L. UMMEL, MAGISTRATE ALLEN SUPERIOR

COURT, SMALL CLAIMS DIVISION, JAMES A. HERMAN,

SHERIFF, ALLEN COUNTY SHERIFF'S DEPARTMENT,

RUSSELL P. YORK, CHIEF FORT WAYNE POLICE

DEPARTMENT, PGPM, INC., JAMESTOWN HOMES, INC.,

R. SCOTT PERRY, RANDALL L. HOSFORD AND

NATIONAL MOVING SYSTEMS, INC.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

JOINT BRIEF IN OPPOSITION TO WRIT OF

CERTIORARI FOR THE RESPONDENTS

JAMES A. HERMAN, SHERIFF OF ALLEN COUNTY

AND R. SCOTT PERRY

JOHN O. FEIGHNER THOMAS C. EWING*

Indiana Bar #6800-02 Indiana Bar #6765-02

GEORGE SISTEVARIS* HUNT SUEDHOFF

Indiana Bar #13770-02 KALAMAROS, LLP

HALLER & COLVIN, P.C. 803 S. Calhoun Street

444 East Main Street 900 Courtside Building

Fort Wayne, IN 46802 Fort Wayne, IN 46802

260-426-0444 260-423-1311

Counsel for Respondent, Counsel for Respondent,

James A. Herman, Sheriff R.ScottPerry —

Allen County Indiana

*Counsel of Record

ee

Yy a

QUESTIONS PRESENTED

Whether the Rooker-Feldman Doctrine bars Hoang

from seeking relief in federal district court on claims

which arise from a state court's judgment.

Whether Hoang’s allegation that the district court

judge was biased, which was not raised before the

district court, may form the basis for reversal of the

district court’s decision, and whether evidence of

alleged bias, presented for the first time in the court

of appeals, was sufficient to support a finding of

bias.

Whether the actions of James A. Herman, as Sheriff

of Allen County, Indiana, or of the deputies of the

Allen County Sheriff, were protected by quasi-

judicial immunity, where certain unnamed deputies

acted pursuant to an official order of a state court.

ii

RULE 29.6 DISCLOSURE STATEMENT

As to Respondent James A. Herman, Sheriff of Allen County

Indiana:

James A. Herman is the duly elected Sheriff of the

Allen County Police Department, a law enforcementagency

(established pursuant to Ind. Code § 36-2-13-1 et seq.), of the

County of Allen, State of Indiana, which county is a unit of

local government. Ind. Code § 36-2-1-1 et seq.

rer nt) 7

iii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED .......csevscesesecsvcses i

RULE 29.6 DISCLOSURE STATEMENT ............. ii

TABLES OF CASES AND OTHER AUTHORITIES ....v

CITATION TO REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE............. 1

Fe 18) 63 ay © ee ee 1

CONSTITUTIONAL PROVISIONS AND STATUTES

GA pan ey ere prs eres ree eee a 1

EPR R EEE E GF BEDE SGM on conc nawtccvensceuness 3

I. THE ROOKER-FELDMAN DOCTRINE BARS

HOANG FROM SEEKING RELIEF IN FEDERAL

DISTRICT COURT ON CLAIMS WHICH ARISE

FROM A STATE COURT’S JUDGMENT. ...... 5

Il. HOANG’S ALLEGATIONS OF BIAS AGAINST

THE DISTRICT COURT JUDGE WERE

NOT PROPERLY PRESERVED FOR ARGUMENT

EITHER TO THE DISTRICT COURT OR TO

THE COURT OF APPEALS, AND THE COURT

OF APPEALS WAS CORRECT IN FINDING

THAT THE EVIDENCE PRESENTED SHOWED

iv

Wl. HOANG’S ARGUMENT REGARDING

THE QUASI-JUDICIAL IMMUNITY OF

RESPONDENT JAMES A. HERMAN, SHERIFF OF

ALLEN COUNTY, IS WITHOUT MERIT ...... 17

TV. CONCLUSION .......ccccrcccsccsccsscccees 20

“seat tne

Vv

TABLES OF CASES AND OTHER AUTHORITIES

Page(s)

Cases

Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980) ..... 18, 19

Atlantic Coast Line R. Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281,

90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) .............. 6

Bartlett v. Stephenson, __ US. mp Leh ont, 1751,

192 L.Ed.2d 1015, __ (2002) .......ccecccceccece 8

Chick Kam Choo v. Exxon Corp., 486 U.S. 140,

108 S.Ct. 1684, 100 L.Ed.2d 127 (3958) ........ 7

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d

ok ecu: EERE eT ree eee 5, 6

Duba v. McIntyre, 501 F.2d 590 (8th Cir.1974) ........ --. 18

Garry v. Geils, 82 F.3d 1362 (7* Cir.1996) ................ 6

Henry v. Farmer City State Bank, 808 F.2d 1228

| Pepe fe oe area n aves 18

Hoang v. Jamestown Homes, Inc., 768 N.E.2d

1029 (Ind.Ct.App.2002) reh’g denied........... 8, 20

Hoang v. Ummel, 24 Fed. Appx. 613, 2001 WL

RT I ED cha adele ew es voadaudh des 1

Homola v. McNamara, 59 F.3d 647 (7" Cir.1995) .........

In re Drexel Burnham Lambert Inc., 861 F.2d

1307 (2™ Cir.1988) reh’g denied, 869 F.2d

116 (1989), cert. denied, Milken v. S.E.C.

490 U.S. 1102, 109 S.Ct. 2458, 104

Led DEE COMET 645 Wi awh cdeewseraexewns

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89

LGM ASE CRED veccncevscrectesncebasesdes

Maple Lanes, Inc. v. Messer, 186 F.3d 823

(7™ Cir.1999) cert. denied, 528 U.S. 1118,

1ZD SCL S39, 163 L.BGBS ST oc ccccsssevsoseses

Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151,

21. DASA 5 ode ic ic cicteslcee

Patmon v. Michigan Supreme Court, 224 F.3d 504

(6"Cir.2000) reh’g and suggestion for

ONO OR DANCES 3c vin s ext deeecensutandeuseens

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct.

ee ee eee rk

Taylor v. O’Grady, 888 F.2d 1189 (7™ Cir.1989) ..........

U. S. v. Nacrelli, 543 F.Supp. 798, 800 (E.D.Pa.1982) ......

U.S. v. Barrett, 111 F.3d 947 (D.C.Cir.1997) ..........

U.S. v. Bosch, 951 F.2d 1546 (9 Cir.1991), cert. denied

112 S.Ct. 2975, 504 U.S. 989, 119 L.Ed.2d 594 ....

U.S. v. Brown, 539 F.2d 467 (5 Cir.1976) ...........0005

Vii

U.S. v. Garrudo, 869 F.Supp. 1574 (S.D.Fla. 1994),

aff'd, U.S. v. Cerceda, 139 F.3d 847

(11™ Cir.1998), reh’g granted and vacated,

161 F.3d 652, and on reh’g 172 F.3d 806

(1999), cert. denied DeLa Mata v. US.,

928 U.S.985, 120S.Ct. 444, 145 L.Ed.2d

cai RT ee ee nT Tes 13

U.S. v. Hines, 696 F.2d 722 Sr AED nib ik oendne chun 15

U.S. v. Mathison, 157 F.3d 541 (8" Cir.1998) ......... 14

U.S. v. Ruzzano, 247 F.3d 688 (7* Cir.2001) .......... 13, 14

U.S. v. Troxell, 887 F.2d 830 (7 eee 14

Waits v. McGowan, 516 F.2d 203 ie 2h. 18

Vili

Statutes

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RS BI ono ians cavuescusdsseagievewiah 3,15

SO On iss inc psns ih dacs samananees 15

MU BO os ois odin dean seen 3

Rules

Rule 15.3 of the Rules of the Supreme Court of the United

GREG ons cccccvenccccvecnecccenesccesesveaseneuesses 1

CITATION TO REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE

This case was decided below by an unpublished and

unreported order of the United States District Court, Northern

District of Indiana, Fort Wayne Division, dated December 17,

2001. The full text of the order is included in the Appendix to

Petitioner's Petition for Writ of Certiorari, at pp. A-6 to A-22.

The United States Court of Appeals for the Seventh

Circuit entered its Order on the appeal on December 17, 2001,

in an unpublished opinion. The full text of that order is

included in the Appendix to Petitioners Petition for Certiorari,

at pp. A-1 to A-5. It is reported as an unpublished opinion in

Hoang v. Ummel, 24 Fed.Appx. 613, 2001 WL 1631716 (7th Cir.

2001).

BASIS FOR JURISDICTION

This Court has jurisdiction to consider opinions of the

Seventh Circuit Court of Appeals upon the filing of a writ of

certiorari pursuant to 28 U.S.C. § 1254. Petitioner’s Petition for

Writ of Certiorari was placed on the docket on August 1, 2002.

Under Rule 15.3 of the Rules of the Supreme Court of the

United States, Respondents, if they so choose to respond, must

file briefs in opposition by August 31,2002.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

In addition to the relevant constitutional provisions

and statutes which Petitioner sets forth in his Petition for

Certiorari, Pet. pp. 1-5, the Respondents submit that the

following additional statutes are involved in this matter.

2

28 U.S.C. § 2283. Stay of State court proceedings.

A court of the United States may not grant an

injunction to stay proceedings in a State court

except as expressly authorized by Act of

Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its

judgments.

Also, the full text of 28 U.S.C. § 455 (a), (b)(1) and (b)(2) are set

forth as follows:

28 U.S.C. § 455. Disqualification of justice, judge, or

magistrate judge

Any justice, judge, or magistrate judge of the

United States shall disqualify himself in any

proceeding in which his impartiality might

reasonably be questioned.

(b) He shall also disqualify himself in the

following circumstances:

(1) Where he has a personal bias or prejudice

concerning a party, or personal knowledge of

disputed evidentiary facts concerning the

proceeding;

(2) Where in private practice he served as

lawyer in the matter in controversy, or a lawyer

with whom he previously practiced law served

during such association as a lawyer concerning

the matter, or the judge or such lawyer has

been a material witness concerning it;

3

STATEMENT OF THE CASE

Petitioner seeks to invalidate an unpublished order of

the Seventh Circuit which found that the federal courts lack

jurisdiction over his 42 U.S.C. § 1983 claim against the several

Respondents. The Seventh Circuit upheld the order of the

district court and found that Petitioner was seeking review of

a state court decision, and under the Rooker-Feldman doctrine

the federal courts did not have jurisdiction over issues

inextricably intertwined with the state court case. Petitioner

presents no compelling reason for the Supreme Court to grant

certiorari on a precedent well established in this Court.

Petitioner also challenges the Seventh Circuit's decision

denying his request to have the district court judge

disqualified pursuant to 28 U.S.C. § 455(a) and (b). Petitioner

raised the issue for the first time with his appeal of the district

court's ruling. The Seventh Circuit gave due consideration to

his request and found that exceptional circumstances did not

exist to grant a recusal in this case. Although the Petitioner

alleges that there is a conflict between the circuits,

Respondents submit that the Seventh Circuit's treatment of

this issue provides a mechanism for relief under §455, and that

no genuine conflict exists. Petitioner offers no compelling

reason for the Supreme Court to grant Certiorari on this issue.

Finally, Petitioner challenges the finding of the Seventh

Circuit on the issue of the quasi-judicial immunity of law

enforcement officers who enforce valid orders of a state court.

Although this ruling is not controlling of the Seventh Circuit's

order, it also presents no compelling issues or conflicts which

require review.

4

ARGUMENT OF THE RESPONDENTS

ee

THE ROOKER-FELDMAN DOCTRINE BARS HOANG

- FROM SEEKING RELIEF IN FEDERAL DISTRICT COURT

ON CLAIMS WHICH ARISE FROM A STATE COURT’S

JUDGMENT.

The district court and the Court of Appeals in the

instant case each found that Rooker-Feldman barred Hoang

from having his claim considered in the federal courts.

Pet.App. A-4, A-17. See District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed.

362 (1923). “If the constitutional claims presented to a United

States District Court are inextricably intertwined with the state

court's denial in a judicial proceeding of a particular plaintiff's

application for admission to the state bar, then the District

Court is in essence being called upon to review the state court

decision. This the District Court may not do.” Feldman 460 U.S.

at 483 n.16, 103 S.Ct. at 1316. Hoang argues that Rooker-

Feldman has no application in his case.

Hoang contends in his Petition for Writ of Certiorari

that his personal property was removed “without due process

or a state court order” and that this happened independently

from a state court judgment, and thus, was not inextricably

intertwined with a state court judgment. Pet. pp. 23-25. The

facts of the case do not support this allegation. Hoang’s

property was removed upon an eviction order of the state

court, and the eviction order is precisely what prompted

Hoang to seek injunctive relief in federal court. As the district

court pointed out in its Order dismissing the case, “Hoang also

filed on [May 8, 2001] a ‘(Temporary) Motion to Stay the State

Court’s Order’ in which he ‘respectfully moves the Court to

5

issue an order to stay state court's order of Possession until

further order of this court.’” Pet.App. A-7. The district court

refused to overturn or stop the state court eviction order,

finding that “under even the most liberal standards Hoang’s

complaint stated no claim upon which relief could be granted.

The court further noted that to the extent Hoang was

attempting to overturn or stop a state court eviction

Proceeding, the Rooker-Feldman doctrine would bar Hoang’s

request.” Id. at A-7, A-8.

Hoang argues, without citation to any authority in

support, that Rooker-Feldman does not apply to injunctive

relief. Pet. p. 25. The decisions from the circuits do not agree

with this overly broad assessment. See Patmon v. Michigan

Supreme Court 224 F.3d 504, 510 (6™Cir.2000), reh’g and

suggestion for reh’g en banc denied (finding that plaintiff's

request for injunction and monetary damages required district

court to review a prior state judicial determination, thus

district court correctly determined thatit lacked subject matter

jurisdiction); Garry v. Geils, 82 F.3d 1362, 1370 (7* Cir.1996)

(holding that the application of Rooker-Feldman applies to both

damages and injunctive relief).

Attempts by Hoang to require the district court to

enjoin enforcement of a State court order, or to otherwise stay

proceedings, also run afoul of the Anti-Injunction Act, 28

U.S.C. § 2283, which states that “[a] court of the United States

may not grant an injunction to stay proceedings in a State

court except as expressly authorized by Act of Congress, or

where necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.” This Court considered the issue in

Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers,

398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).

[S]ince the statutory prohibition against such

injunctions in part rests on the fundamental

6

constitutional independence of the States and

their courts, the exceptions should not be

enlarged by loose statutory construction.

Proceedings in state courts should normally be

allowed to continue unimpaired by

intervention of the lower federal courts, with

relief from error, if any, through the state

appellate courts and ultimately this Court.

Id. 398 U.S. at 287, 90 S.Ct. at 1743. See also Mitchum v. Foster,

407 US. 225, 233-38, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)

(discussing the exceptions). As to Hoang’s case, no exception

applies. First, there is no statute that particularly authorizes

the federal courts to issue injunctions in the circumstances of

this case. Second, the injunction could not have been used in

aid of the district court's jurisdiction because the district court

found that it lacked jurisdiction over all claims. Third, the

final exception,"was designed to permit a federal court to

prevent litigation of an issue that previously was presented to

and decided by the federal court. It is founded in the well

recognized concepts of res judicata and collateral estoppel.”

Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 108 S.Ct. 1684,

100 L.Ed.2d 127 (1988). Hoang presents no argument to

support an assertion that the district court could exercise the

power to grant injunctive relief in his case. Hoang’s request

for injunctive relief in federal court was appropriately denied.

Hoang’s argument that the consequences flowing from

the eviction proceeding were independent of the eviction, and,

therefore, not subject to Rooker-Feldman, is also unavailing.

A plaintiff may not circumvent the Rooker-Feldman doctrine

simply by casting his complaint in the form of a federal civil

rights action. Maple Lanes, Inc. v. Messer, 186 F.3d 823, 825 > da

Cir.1999), cert. denied, 528 U.S. 1118, 120 S.Ct. 939, 145 L.Ed.2d

817. Hoang’s civil rights claim arises from the same facts as

the eviction action, and the district court was right to decline

4

to accept jurisdiction of the case. Indeed, Hoang continues to

avail himself of his right to review and appeal to Indiana's

Court of Appeals, of the state court's alleged wrongful eviction

and damages arising as a consequence. On May 31, 2002, the

Indiana Court of Appeals further addressed Mr. Hoang’s case.

In Hoang v. Jamestown Homes, Inc., 768 N.E.2d 1029

(Ind.Ct.App.2002), reh’g denied, the Court of Appeals found

that (1) the small claims court had jurisdiction over the

ejectment action (2) bifurcation of the proceedings for

possession of his unit from proceedings on Hoang’s

counterclaim for damages was proper, and (3) Hoang violated

his occupancy agreement when he refused to allow employees

of the cooperative corporation to enter and inspect the unit. Id.

at 1030-1040.

Hoang presents no authority which conflicts with the

Seventh Circuit’s application of Rooker-Feldman. Additional

support for the application of Rooker-Feldman in this case is

also found in the Anti- Injunction Act. Hoang also presents no

compelling reason for this Court to exercise its supervisory.

power over the Seventh Circuit, as required by

U.S.Sup.Ct.Rule 10, under this Court’s power to grant

certiorari on this issue. An issue “which has few if any

ramifications beyond the instant case does not satisfy any of

the criteria for the exercise of this Court's discretionary

jurisdiction. See this Court's Rule 10.” Bartlett v. Stephenson,

— US. __, 122 S.Ct. 1751, 1753, 152 L.Ed.2d 1015 (2002).

Rule 10 states specifically that “ [a] petition for writ of certiorari

is rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule

of law.” Hoang presents no tangible argument to support

certiorari on the issue of the Seventh Circuit's application of

the Rooker-Feldman doctrine.

8

Il.

HOANG’S ALLEGATIONS OF BIAS AGAINST THE

DISTRICT COURT JUDGE WERE NOT PROPERLY

PRESERVED FOR ARGUMENT EITHER TO THE

DISTRICT COURT OR TO THE COURT OF APPEALS,

AND THE COURT OF APPEALS WAS CORRECT IN

FINDING THAT THE EVIDENCE PRESENTED SHOWED

NO BIAS.

A. The Allegations.

Hoang’s allegation of bias on the part of the district

court judge was not asserted until the filing of his appeal with

the Seventh Circuit Court of Appeals, and Hoang again

presents these allegations, along with additional allegations,

in his Petition for Writ of Certiorari. With regard to the

specific allegations of bias, Hoang ignores the need to present

or authenticate evidence, with the bulk of his allegations being

in the form of representations by Hoang himself of perceived

bias by the judge.

Hoang spins a very fanciful tale in an effort to support

sucha serious allegation. The districtjudge who presided over

Mr. Hoang’s case in the United States District Court for the

Northern District of Indiana, Fort Wayne Division, was

William C. Lee, the Chief Judge of the Northern District. In his

Petition, Hoang reiterates several “conflicts of interest”

previously presented to the Seventh Circuit, which he claims

require the disqualification of Judge Lee. Hoang also submits

new allegations which are presented for the first time in his

Petition for Certiorari. These alleged conflicts are restated here

and are addressed in seriatim.

1. Alleged Conflict due to Judge Lee’s

former association with a law firm. Hoang claims that a

9

conflict of interest exists as a result of Judge Lee’s former

association and partnership in the law firm of Hunt, Seudhoff,

Borror, Eilbacher & Lee. That law firm is now known as Hunt

Seudhoff Kalamaros, LLP, and it was the law firm of record for

two of the named defendants: R. Scott Perry and National

Moving Systems, Inc. Hoang claims that Judge Lee “has still

drawn a salary after leaving the law firm.” Although this

statement seems to imply that the Judge may still be receiving

benefits from the firm, Hoang’s only reference to support his

claim is to a newspaper article appearing in a Fort Wayne

Newspaper in June of 1982. The article was never placed in

the record before the district court, and was first presented to

- the Court of Appeals during the briefing stage of Hoang’s

appeal.

The newspaper article, which is over 20 years old,

makes reference to the relative incomes of the judges of the

Northern District of Indiana. The article also references

payments to Judge Lee by his former law firm for an apparent

buy-out of his interest in the firm. The article reports that he

would be receiving payments through 1983. There is therefore

no indication that Judge Lee has received any payments or

benefits from his former law firm for over 18 years.

Hoang also claims that prior to the time Judge Lee left

his law firm to assume the district court bench in August of

1981, his law firm represented Jamestown (presumably, the

respondent, Jamestown Homes, Inc.). Again, Hoang offers no

tangible proof to support his claim. However, he does seem to

suggest a connection through aninsurance company. “[W]hen

Judge Lee was a partner with ‘Hunt, Suedhoff, Borror,

Eilbacher & Lee’, his law firm represented Jamestown through

its insurance company.” Pet. p.6.

Although this tenuous connection between the judge

and one of the respondents may or may not have existed more

10

than 20 years ago, given the record presented, one can only

speculate as to the facts which support the allegation. No

Court should be required to do so.

2. Alleged Conflict due to Judge Lee’s

alleged ownership interest in apartment complex. Hoang next

attacks Judge Lee’s former ownership in an apartment

complex which is not a party to this case. Hoang alleges,

without documentation or admissible evidence, that Judge Lee

once had an ownership interest in Brentwood Apartments, and

that the law firm of Haller & Colvin, P.C., which represents the

respondent, James A. Herman, Sheriff of Allen County, also

represented the apartment complex in small claims matters

before the respondent, Jerry L. Ummel, Magistrate, Allen

Superior Court, Small Claims Division. Hoang submits no

specific dates when Judge Lee might have had an ownership

interest in these apartments, he submits no particular cases or

dates when Haller & Colvin might have appeared before the

magistrate on behalf of this apartment complex, and he does

not allege that Brentwood Apartments is affiliated in any way

with any of the parties in the instant case. He does not allege

that Judge Lee has a financial interest in the outcome of the

proceedings in the instant case as a result of a former alleged

interest in Brentwood apartments, or otherwise.

3. New Allegations of Judicial

Improprieties in Petition for Certiorari. Hoang goes on to

engage in a further attack of Judge Lee in his Petition for

Certiorari, where for the first time, Hoang suggests that while

his case was pending before the Court of Appeals, Judge Lee

interposed his influence upon the Seventh Circuit Judges to

rule against Hoang. Hoang claims that he obtained

information from the “Seventh Circuit’s Deputy Clerk” thaton

December 13, 2001, Judge Lee “called one of the three assigned

Circuit Judges to explain his side of the ‘conflicts of interest.’

And so, on the next day of Friday, December 14, 2000, this case

11

was immediately submitted to said three Circuit Judges who

hastily affirmed Chief Judge Lee’s decision on the following

working day of Monday, December 17, 2001.” Pet. p. 23.

Hoang also engages in unsupported allegations that the

district judge took “kickbacks” in a criminal matter. Pet. p. 21,

n.44. Respondents submit that these unsupported and

scurrilous accusations have no place ina Petition for Certiorari

to the Supreme Court, and without a proper foundation or

supporting evidence, should be stricken or disregarded.

Hoang mistakenly argues that under the findings of the

Seventh Circuit, “the District Judge is not required to disclose

his or her conflict of interest, bias and prejudice against a

party... but the party is required to discover the District Judge’s

conflict of interest, bias and prejudice.” Pet. p.19. There is no

such finding by the Seventh Circuit in this case. Indeed, the

Court of Appeals considered Hoang’s request for relief under

both 28 U.S.C. §455(a) and 28 U.S.C. §455(b).’ The Court found

that Hoang’s request for the Judge’s recusal was not supported

under either section. Pet.App. pp. A-4, A-5.

'28 U.S.C. § 455 (a) and (b)(2) read as follows:

(a) Any justice, judge, or magistrate judge of the United States

shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances:

* * *

(2) Where in private practice he served as lawyer in the matter

in controversy, ora lawyer with whom he previously practiced

law served during such association as a lawyer concerning the

matter, or the judge or such lawyer has been a material witness

concerning it....

12

B. Requirements for recusal under 28 U.S.C.

Contrary to Hoang’s assertions, the Seventh Circuit

followed the long established precedent that a judge’s recusal

under § 455 is self -executing and the judge is obligated to

recuse himself sua sponte under the stated circumstances.

Taylor v. O'Grady, 888 F.2d 1189, 1200, 1201 (7" Cir.1989). A

judge is under a self-enforcing obligation to recuse himself

‘ where legal grounds exist for disqualification. The standard to

be applied is objective and not subjective. U.S. v. Garrudo, 869

F.Supp. 1574 (S.D.Fla. 1994), aff'd, U.S. v. Cerceda, 139 F.3d

847 (11 Cir.1998), reh’g granted and vacated, 161 F.3d 652,

and on reh’g 172 F.3d 806 (1999), cert. denied DeLa Mata v.

U.S., 528 U.S.985, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999). An

interest which is remote, contingent or speculative is not the

kind which reasonably brings judge's impartiality into question

for disqualification purposes. Jn re Drexel Burnham Lambert

Inc., 861 F.2d 1307 (2™ Cir.1988) reh’g denied, 869 F.2d 116

(1989), cert. denied, Milken v. S.E.C. 490 U.S. 1102, 109 S.Ct.

2458, 104 L.Ed.2d 1012 (1989).

1. Application of 28 U.S.C. § 455(a). The

Court of Appeals took into account Hoang’s attempt to raise

the issue of conflict of interest for the first time at the appellate

level. The Court considered 28 U.S.C. § 455(a) which requires

a federal judge to disqualify himself “in any proceedings in

which his impartiality might be questioned.” The Court found

that Hoang waived his right to relief under 28 U.S.C. § 455(a)

“because he failed to move for recusal until after the district

court dismissed the case.” Pet.App. p. A-5. The Court of

Appeals relied on U.S. v. Ruzzano, 247 F.3d 688 (7* Cir.2001),

which outlines the Seventh Circuit's position on the

application of § 455(a), and states that a claim can be waived

even though the defendant discovered alleged grounds for

recusal after being sentenced. Id. 247 F.3d at 694.

13

Hoang attempts to distinguish the application of

§455(a) in the Fifth Circuit from its application in the Seventh

Circuit. Pet. pp. 19, 20. Respondents submit that the

application of §455(a) between the circuits is not in conflict.

Hoang is correct when he states that the Fifth Circuit in U.S. v.

Brown, 539 F.2d 467 (5™ Cir.1976) confers upon itself

jurisdiction to consider claims of bias under §455(a). However,

Respondents do not agree that the Seventh Circuit forever

forecloses a §455(a) review if it is not raised in the district

court. Indeed, this Court did give Hoang that review, and

relied on Ruzzano in so doing. Pet. App. p. A-4, A-5. The

Seventh Circuit requires the filing of a writ of mandamus to

raise § 455(a) recusal challenges, otherwise they are waived, Jd.

247 F.3d at 694. Other circuits, although not requiring the

filing of a writ of mandamus, have also found waiver of §

455(a) in cases where a party fails to preserve this issue at the

district court level. Jd. (citing U.S. v. Mathison, 157 F.3d 541,

545-45 (8" Cir.1998); U.S. v. Barrett, 111 F.3d 947, 952-53

(D.C.Cir.1997)).

Significantly, the Seventh Circuit has fashioned a safety

valve for the exceptional case where waiver would otherwise

have barred review. In the instant case, the Seventh Circuit

did not end its analysis of § 455(a) after finding waiver. It

went on, as it did in Ruzzano, to acknowledge that under

“exceptional circumstances” an appellant might be excused for

failing to timely seek a recusal. The Seventh Circuit found that

Hoang had not demonstrated such circumstances. Pet.App.

pp. A-4, A-5. The Court of Appeals , in reaching this

conclusion, necessarily examined the record in the case and in

citing U.S. v. Troxell, 887 F.2d 830, 833 (7" Cir.1989), found

specifically that “there is no evidence in the record that the

alleged grounds for recusal had any effect on Hoang’s case or

affected his substantial rights in any way.” Pet.App. p. A-5.

Hoang, in effect, is asking the Supreme Court to review

14

allegations of bias which are not supported in the record and

which did not affect his rights in any way.

2. Application of 28 U.S.C. § 455(b). The

Seventh Circuit also acknowledged that Hoang raised a §

455(b) claim for the first time on appeal. Pet.App. p. A-5.

Hoang’s § 455(b) argument is essentially merged with his

arguments on § 455 (a). Pet. p. 19-21. However, in a specific

reference to §455(b), Hoang argues thatas a result of his failure

to raise the issues below, the Seventh Circuit found that he

waived the right to argue them on appeal. Pet. p. 20. The

Seventh Circuit actually found that after considering the

allegations made by Hoang, and in applying the §455(b)

requirement that there be a showing of “actual interest or bias

on the part of the judge,” the facts alleged did not require the

Judge to recuse himself. Pet. App. p. A-5. See, U.S. v. Hines,

696 F.2d 722 (10 Cir.1982) (finding that the recusal of the trial

judge was not required under § 455(b)(1) where there was no

adequate proof of the trial judge's actual bias or prejudice);

U.S. v. Nacrelli, 543 F.Supp. 798, 800 (E.D.Pa. 1982) (holding

that absent allegation of factual basis to support petitioner's

claim that trial judge should have recused himself, it was

completely reasonable for judge to preside over the trial); U.S.

v. Bosch, 951 F.2d 1546, 1549 (9 Cir.1991), cert. denied, 504 U.S.

989, 119 L.Ed.2d 594, 112 S.Ct. 2975 (1992) (finding that the

failure of appellant to show actual bias, or actual prejudice

caused by an alleged bias, precluded relief under §455(a)).

The Seventh Circuit's ruling on this issue is entirely consistent

with established precedent.

Hoang does not establish that a conflict exists in the

circuits sufficient to grant certiorari. Hoang’s arguments

regarding recusal under both § 455 (a) and (b) were adequately

considered by the Seventh Circuit. He simply is not happy

with the outcome. Hoang offers no compelling reason as

required by Rule 10 to substantiate the granting of certiorari.

15

Ill.

HOANG’S ARGUMENT REGARDING THE QUASI-

JUDICIAL IMMUNITY OF RESPONDENT JAMES A.

HERMAN, SHERIFF OF ALLEN COUNTY, IS WITHOUT

MERIT.

In Hoang’s final argumentin his Petition for Certiorari,

he alleges that officers of the Allen County Police Department

(“County Sheriff's Deputies”) are not entitled to immunity in

this case. The Seventh Circuit addresses this issue in a

footnote. “While we affirm the district court’s dismissal of the

entire complaint based on the Rooker-Feldman doctrine, we note

that the district court was also correct in asserting that . . . the

law enforcement officers had qualified immunity for their

actions in enforcing the ejectment order, see Homola v.

McNamara, 59 F.3d 647, 651 (7" Cir.1995).” Pet.App. p. A-4.

Respondents submit that this finding is not controlling of the

case and itis either an alternative ruling or dicta in the Seventh

Cireuits unpublished opinion.

Since both the district court and the Seventh Circuit

correctly ruled that the entire complaint should be dismissed

based on the Rooker Feldman doctrine, it is unnecessary for

this Court to grant Certiorari to review the immunity issue.

Further, Hoang offers no sound basis for review of the

decision. Hoang cites only Malley v. Briggs, 475 U.S. 335, 341,

106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) for the proposition that

the actions of the County Sheriff's Deputies were “not

ministerial acts but clearly violations of established law, e.g. §

1983.” Pet.App. p. 30. In Malley, this Court ruled that police

officers where entitled to qualified immunity and not absolute

immunity for causing an unconstitutional arrest by presenting

an inappropriate affidavit to a judicial officer in seeking a

warrant. Id. at 475 U.S. at 345, 106 S.Ct. at 1098. In the instant

case, the County Sheriff's Deputies were acting on a judicially

16

valid eviction order. This action is protected under quasi-

judicial immunity, and the district court in the instant case was

correct to find sufficient grounds for dismissal of Hoang’s

claim in that regard.

Support is found in Henry v. Farmer City State Bank, 808

F.2d 1228 (7" Cir.1986), where the plaintiff alleged that a

sheriff violated his civil rights in enforcing a foreclosure

judgment. The sheriff in Henry allegedly entered the plaintiff's

house, seized non-exempt property and later sold that

property at a public auction, all pursuant to a circuit court

order directing the sheriff to enforce a judgment. Id. at 1238.

The plaintiff also alleged that the sheriff falsely charged the

plaintiff with contempt of court in connection with the refusal

to comply with the order. Id. The district court dismissed the

claim against the sheriff and this dismissal was upheld by the

Seventh Circuit, which found as follows:

Non-judicial officials whose official duties have

an integral relationship with the judicial

process are entitled to absolute immunity for

their quasi-judicial conduct. Ashbrook v.

Hoffman, 617 F.2d 474, 476 (7th Cir.1980).

Although immunity is normally extended to

those performing discretionary and not

ministerial acts, "those performing ministerial

acts under a judge's supervision and intimately

related to judicial proceedings have quasi-

judicial immunity." Id. at 477 n. 4; see Waits v.

McGowan, 516 F.2d 203, 206 (3d Cir.1975)

(official entitled to absolute immunity afforded

judge if "he is performing a ministerial function

at the direction of the judge"); Duba v. McIntyre,

901 F.2d 590, 592 (8th Cir.1974) (quasi-judicial

absolute immunity extended to police and

other court officers "for purely ministerial acts

17

where they do nothing other than perform

orders issuing from a court").

Sheriff Massey was at all times acting pursuant

to an official court order to enforce a validly

entered judgment when he performed the

allegedly wrongful acts of which the Henrys

now complain. It is difficult to think of a task

more intimately related to a judicial proceeding

than that of enforcing a money judyment

entered by a court. Because the Sheriff was

acting in furtherance of his "official duties in

aid of the court," id. at 477, he ‘s entitled to

quasi-judicial absolute immunity from suit for

damages arising from those acts.

The 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, not to sue the official

responsible for its execution. See Ashbrook, 617

F.2d at 477.

As in this instance, the Henrys did pursue state appeal

remedies, and the Seventh Circuit reasoned as follows.

To allow the Henrys to attack the order

collaterally by bringing a § 1983 suit against the

Sheriff for damages would require sheriffs and

other court officers who enforce properly

entered judgments pursuant to facially valid

court orders to act as appellate courts,

reviewing the validity of both the enforcement

orders and the underlying judgments before

proceeding to collect on them. Such a result is

obviously untenable.”

18

Id. 808 F.2d at 1238.

Hoang’s §1983 claim against the Allen County Sheriff

or any of the law enforcement officers must fail under the facts

presented since all actions were done pursuant to a valid order

of eviction, which order has been upheld in Hoang’s recent

appeal to the Indiana Court of Appeals. Hoang, 768 N.E.2d at

1035. )

Hoang’s claim that the sheriff is not entitled to

qualified immunity is unsupported. There exists no sufficient

conflict in the jurisdictions on this issue of quasi-judicial

immunity, and the ruling of the Seventh Circuit, which

amounts to an alternative ruling or dicta, does not evoke a

level of departure from usual judicial proceedings

necessitating the granting of certiorari.

IV.

CONCLUSION

The petition for writ of certiorari should be denied.

In Hoang's Petition, he alleges, inter alia, that Sheriff's

deputies “broke his furniture and . . . helped themselves with

[sic] three (3) boxes of his personal property.” Pet. p. 30.

Hoang makes no citation to the record of these events, and

indeed they were not alleged in the district court. These are

. additional unsupported accusations which have no place in a

Petition for Certiorari to the Supreme Court. Hoang presents no

foundation nor supporting evidence, nor any proof that these

accusations where ever made in the record, and as such they

should not be considered.

19

Dated this 30" day of August, 2002.

Respectfully submitted,

HALLER & COLVIN, P.C. HUNT SUEDHOFF

444 EAST MAIN STREET KALAMAROS, LLP

FORT WAYNE, IN 46802 803 S. CALHOUN STREET

‘PHONE: (260) 426-0444 9™ FLOOR

FORT WAYNE, IN 46802

PHONE: (260) 423-1311

BY:_* | 7 ie BY:

SEORGE SISTEVARIS THOMAS G-EWING 7

Indiana Bar #13770-02 Indiana Bar #6765-02

Counsel of Record Counsel of Record

JOHN O. FEIGHNER Counsel for Respondent

Indiana Bar #6800-02 R. Scott Perry

Counsel for Respondent,

James A. Herman, Sheriff

Allen County, Indiana