Appendix — Akers v. Bishop
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Sixth Circuit’s 06/23/2003 “ORDER” denying Akers’
“Motion for Reconsideration” of 05/29/2003 “ORDER”
rejecting Akers’ “Petition for En Banc Determination” ...............+. 1
Sixth Circuit’s “MANDATE?” with respect to Its “ORDER”
of 05/02/2003 affirming Judgement of U. S. District Court
for Eastern District of Kentucky, i.e., “DISMISSING” entire
case “with prejudice”, issued 06/02/03...........scssssssssssesessesseeeeeeees Z
Sixth Circuit’s “ORDER”, entered 05/29/2003, rejecting
Akers’ 05/19/2003 “Petition for En Banc Determination”,
FE secimiocepnnesisannicenmnnampnimninaimmnininianiniainne: 4
Sixth Circuit’s “ORDER”, entered 05/02/2003, affirming
Judgement of U. S. District Court for the Eastern District
of Kentucky, i.e., “DISMISSING” entire Case...........sscsesesseseseeeeees 5
“JUDGEMENT” & contemporaneous “MEMORANDUM
OPINION AND ORDER’, entered in U. S. District Court
for the Eastern District of Kentucky on 09/26/2003, and
“DISMISSING” entire case “with prejudice” ............:ccccceesseeees 10
Sixth Circuit’s “ORDER” denying “Stay of Mandate”,
before: JJ. KENNEDY and DAUGHTREY; BELL (sitting
by designation), U.S. Court of Appeals for Sixth Circuit,
er er tii secs nhiranoiciciigsinennninininininiidviien 50
Sixth Circuit’s “ORDER” [dismissing Akers’ previous
appeal (Case No. 01-6243 therein)], before: JJ. KENNEDY
and DAUGHTREY; BELL (sitting by designation), entered
EF AE Be esilinineitnpnintinshinnnsieciinieyinenianlovinipaenneitmrnnneeins 51
“ORDER” and contemporaneous “MEMORANDUM”
transferring case to Eastern District of Kentucky, entered
09/18/2003 by Chief Judge Robert L. Echols, U. S. District
Court for Middle Tennessee District-Nashville Division............ 53
App. (i)
Akers’ “MOTION FOR RECONSIDERATION”
Sixth Circuit’s “ORDER”, entered 05/29/2003,
rejecting as “untimely” Akers’ 05/19/2003 “Petition
for En Banc Determination”, as “untimely”, filed
06/05 / 2003.........ssessvssssssssssessssessscescnccsrensescsnsnssnesneensensnncensnscacenenssens 62
Akers’ “MOTION FOR LEAVE TO FILE AMENDED
PETITION FOR EN BANC DETERMINATION” with
respect to Sixth Circuit’s “ORDER” affirming Judgement
of U.S. District Court for the Eastern District of Kentucky
(i.e., “DISMISSING” entire case “with prejudice), filed
06/05 /2008.......ssssessessessessesseessssscnsenecnssnssssnsncnsenscenennsessensenssnennesees 69
Akers’ 06/05/2003 “AMENDED PETITION FOR EN
BANC DETERMINATION” with respect to the Sixth
Circuit’s “ORDER” affirming Judgement of U. S. District
Court for Eastern District of Kentucky (i.e., “DISMISSING”
entire case “ With prejudice” )........s-ssssssseseeserennensnneeneesseenenenennensens 74
“FINAL REPLY BRIEF FOR PLAINTIFF-APPELLANT”
with respect to Sixth Circuit Case No. 02-6235, as filed
and served by Akers 01 02/28/2003......-sssssssesssssssssesensenenneenennss 97
“FINAL BRIEF FOR PLAINTIFF- APPELLANT” with
respect to Sixth Circuit Case No. 02-6235, as filed and
served by Akers 07 02/28/ 2003....:...-ssssessesssssserssssennsnnsensenssenses 130
Akers’ “NOTICE OF APPEAL TO UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT”,
as filed and served by Akers on 10/03/2003, from the
JUDGEMENT” entered in U. S. District Court for the
Eastern District of Kentucky 01 09/26/ 2003........-s+sesseeeseeseseers 187
Akers’ “RESPONSE & OBJECTIONS TO: ‘RE-
NOTICE AND RENEWAL OF DEFENDANT
CAROLYN P. BISHOP’S MOTION TO DISMISS”
(D.E. #43, Case No. 5:02 cv0162), filed and served
O11 05/09 / 2003......-sesssessessssssesseeeneescessssnenneenscnnccncnncesccnssenecnscenennens 191
Akers’ “MOTION TO STRIKE; and MOTION TO
STAY PROCEEDINGS PENDING DETERMINATION
OF ‘VENUE’ BY UNITED STATES SUPREME COURT”,
IE FE Bi Mics iicienescosrsvnkionecenannceiicariminsennsnetecnsonsinsnvennsonnsts 252
Akers’ "MEMORANDUM & MEMORANDUM OF
LAW [in support of] ‘MOTION TO STRIKE; and
MOTION TO STAY PROCEEDINGS PENDING
DETERMINATION OF ‘VENUE’ BY UNITED
STATES SUPREME COURT”, entered 05/13/2003............... 261
Akers’ “PETITION FOR WRIT OF CERTIORARI
[Case No. 01-6243)” as filed with the United States
Supreme Court 0m 04/24/2002.........cessesecsesseeensesnseeseneneneseneneaes 305
Akers’ “PETITION FOR STAY OF MANDATE’ of
with transfer of Case No 3:00cv1142 from the Middle
District of Tennessee-Nashville Division to Eastern
District of Kentucky, at Lexington, filed and served
I inrneniscsesrsieincnsannuonsnipenciveensdonsnvessmnnesssousnreseneneweeseeey 344
“FINAL BRIEF FOR PLAINTIFF- APPELLANT” with
respect to Sixth Circuit Case No. 01-6243, as filed and
served by Akers 01 02/11/200B............sscscssssssssessesserssssencsenesees 130
Akers’ “RESPONSE AND OBJECTIONS TO:
‘MOTION OF [Appellees Pamela Miller and
Lexington-Fayette Urban County Government]
TO DISMISS AND [THE ACCOMPANYING
MOTION TO STAY PROCEEDINGS PENDING
MOTIONS TO DISMISS” , entered 12/26/2001...........:c:00000 396
Akers’ “NOTICE OF APPEAL TO UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT”,
from the “ORDER” of transfer of Case No 3:00cv1142
from the Middle District of Tennessee, at Nashville,
to Eastern District of Kentucky, at Lexington, as filed,
Served, and eritered 09 / Z1/ ZOOL .......s.sssvcsessessesevesessvensesesvesesssoees 423
App. (iii)
Akers’ “APPELLANT’S RESPONSE TO: MOTION
OF APPELLEE, JERRY L. KELLY, TO DISMISS
APPEAL [Case No. 01-6243]”, as filed and served
0111/30 /2001........cesesssseseceseesesesseseneneenenensacerensnensenenenenreneneasesensess 426
Akers’ “MEMORANDUM & MEMORANDUM OF
LAW’ in support of Akers’ Complaint in U. S. District
Court for the Middle Tennessee District, at Nashville,
[Case No. 3:00cv1142 therein, as filed on11 [21 ZOOD.....0.0.050000 431
SHEE HH HEH HH HH F
CERTIFICATION OF COMPLIANCE & AUTHENTICITY
PLAINTIFF-PETETIONER, James G. Akers, without
counsel in strict accordance with TITLE 28 U.S.C. § 1654, on this
31°'_ day of July, 2002, does hereby certify that the hereinabove
documents as bound herewith and indexed above, are copies of
the same documents contained within my records with respect
to “CIVIL ACTION PURSUANT TO: TITLE 18 U.S.C. § 1964(c);
TITLE 42 U.S.C. § 1983; & TITLE 42 U.S.C. § 1985(3)” as filed in
U.S. District Court for the Middle Tennessee District-Nashville
Division [Case No. 3:00-1142], U. S. Court of Appeals for the
“Sixth Circuit [Case No. 01c¢v6243]; U.S. Supeme Court [Case No.
02-1619], U.S. District Court for the Eastern District of Kentucky
[Case No. 5:02cv0162], and U.S. Court of Appeals for the Sixth
Circuit [Case No. 02-6235]; (2) that I personally supervised
reproduction of the same in strict accordance with U.S.Supreme
Court Rule 33.2; & (3) all such “EXHIBITS” are included herein
only for that purpose set forth in United States Supreme Court
Rule 14.1(f) & (i).
RENTWOOD, TENNESSEE 37024
App. (iv)
No. 02-6235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JUN 23, 2003
LEONARDGREEN, Clerk
JAMES G. AKERS,
Plaintiff-Appellant,
V. ORDER
CAROLYN P. BISHOP, et al, )
)
Defendants-Appellees. )
) .
Upon consideration of appellant’s motion to reconsider
the order of May 29, 2003 rejecting his untimely petition for
rehearing in banc for filing and motion to file an amended
petition for rehearing en banc,
It is ORDERED that the motions be and they hereby are
DENIED.
ENTERED BY ORDER OF THE COURT
s/ Leonard Green (by blh)
Leonard Green, Clerk
[END OF DOCUMENT]
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 02-6235
Filed: June 2, 2003
JAMES G. AKERS
Plaintiff-Appellant
Vv.
CAROLYN P. BISHOP; DORIS FLEMING; ALLEN I.
RUSHING; JOHN DOES, Sued as “CBT Does 1-40, known
only as that group of persons at Central Bank & Trust
Company, Inc., and “associated-in-fact”; TODD M. LAYNE;
DONALD RAY SHANNON; JERRY L. KELLY; JOHN DOES,
Sued as SCC Does 1-50, known only as a group of persons at )
at the Southland Christian Church of Lexington, Inc., and
“associated-in-fact”; JOHN VAUGHN, M.D.; THOMAS D.
CLARK; KATHERINE H. WITT; JOHN DOES, Sued as FCS
Does, known only as a group of persons at the Fayette,
Kentucky County Sheriff's Office”, associated-in-fact”;
PAMELA MILLER; JOHN DOES, sued as LFG Does 1-60,
known only as that group of individual persons at the
Lexington-Fayette (Kentucky) Urban County Government,
“associated-in-fact”; LOU A. RED CORN; JOHN DOES,
Sued as CAO Does 1-20, known only as a group of persons at
office of Fayette, Kentucky, Circuit Court Clerk “, associated-
in-fact’; JOHN DOES, Sued as FCC Does 1-10, known only as
group of persons at office of Fayette, Kentucky Circuit Court,
“associated-in-fact”; REBECCA M. OVERSTREET; CINDY G.
SWARTZ; ERNEST W. WILLIAMS; TODD D. FERGUSON;
PAMELA D. GOODWINE; JOHN DOES, Sued as “The
Association-in-Fact” (comprised of all above-named
“persons”, jointly and severally, herein “ Associated-in-Fact” )
Defendants-Appellees
MANDATE
Pursuant to the court's disposition that was filed 5/2/03
the mandate for this case hereby issues today.
A True Copy
COSTS: NONE Attest:
s/ L. K. (illegible)
Deputy Clerk
[END OF DOCUMENT]
No. 02-6235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MAY 29, 2003
LEONARD GREEN, Clerk
JAMES G. AKERS,
Plaintiff-Appellant,
ORDER
CAROLYN P. BISHOP, etal, )
Defendants-Appellees. )
)
Upon consideration of the untimely petition for
rehearing en banc from appellant,
It is ORDERED that the petition not be accepted for
filing.
ENTERED BY ORDER OF THE COURT
s/ Leonard Green (by blh)
Leonard Green, Clerk
[END OF DOCUMENT]
No. 02-6235
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES G. AKERS, ) FILED
) MAY 2, 2003
Plaintiff-Appellant, ) | LEONARD GREEN, Clerk
)
v. ) ORDER
)
)
CAROLYN P. BISHOP; ) NOT RECOMMENDED FOR FULL-TEXT
DORIS FLEMING; ALLEN ) PUBLICATION
I. RUSHING; JOHN DOES, _ ) sixtncircuit Rute 28(g) limits citation to specific Situations
Sued as “CBT Does 1-40, ) Please see rule 28(g) before citing in a proceeding in a court
known only as that group _ ) inthesixthCircuit. Ifcited, acopy must be served on other
of persons at Central Bank __) parties and the Court.
& Trust Company, Inc., and ) This notice is to be prominently displayed if this decision
“associated-in-fact”; TODD ) is reproduced.
M. LAYNE; DONALD RAY )
SHANNON; JERRY L. )
KELLY; JOHN DOES, Sued _ )
as SCC Does 1-50, known __)
only as a group of persons at )
at the Southland Christian)
Church of Lexington, Inc., _)
and “associated-in-fact” ; )
JOHN VAUGHN, M.D.; )
THOMAS D. CLARK; )
KATHERINE H. WITT; )
JOHN DOES, Sued as FCS)
Does, known only as a group)
of persons at the Fayette, )
Kentucky County Sheriff's __)
Office”, associated-in-fact”; )
PAMELA MILLER; JOHN _)
DOES, sued as LFG Does 1- )
60) 60, known only as that)
6
group of individual persons )
at the Lexington-Fayette )
(Kentucky) Urban County )
Government, “associated-in- )
fact’; LOU A. RED CORN; )
JOHN DOES, Sued as CAO)
Does 1-20, known only asa_)
group of persons at office of )
Fayette, Kentucky, Circuit )
Court Clerk “, associated-in- )
fact’; JOHN DOES, Sued as )
FCC Does 1-10, known only )
as group of persons at office )
of Fayette, Kentucky Circuit )
Court, “associated-in-fact”; )
REBECCA M. OVERSTREET;)
CINDY G. SWARTZ; )
ERNEST W. WILLIAMS; )
TODD D. FERGUSON; )
PAMELA D. GOODWINE; _ )
sa: asl cciy > te nd aie ae daa ie ae PORE EE: OE PE
No. 02-6235
2p
JOHN DOES, Sued as “The )
Association-in-Fact” )
(comprised of all above- )
named “persons”, jointly —_)
and severally, as herein )
“ Associated-in-Fact”), )
)
Defendants-Appellees)
Before: CLAY and GIBBONS, Circuit Judges; CLELAND,
District Judge.*
7
James G. Akers, a Kentucky resident proceeding pro se,
appeals the district court order dismissing his action filed
pursuant to 42 U.S. C. § § 1983 and 1985, and the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §
§1951-68. This case has been referred to a panel of the court
pursuant to Rule 349(j)(i), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral argument
is not needed. Fed. R. App. P. 34(a).
Seeking monetary relief, Akers sued his former wife
Carolyn P. Bishop, fifteen named defendants, and six group of
“John Does” defendants in a 134-page complaint. The
defendants included judges, prosecutors, a mayor, a sheriff,
court employees, attorneys, a church counselor, and people who
testified as witnesses at various stages of domestic relations and
criminal proceedings involving Akers and his former wife.
Akers alleged that the defendants conspired to violate his civil
rights and caused hifn to be imprisoned unlawfully and to suffer
injuries to person and property. Akers filed his complaint in the
United States District Court for the Middle District of Tennessee.
The court transferred the case to the Eastern District of Kentucky
becasue the events giving rise to the lawsuit took place in and
around Lexington, Kentucky. Akers appealed the transfer, and
this court dismissed the appeal. The defendants filed motions
to dismiss. The district court granted the motions and dismissed
the case in its entirety.
*The honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
No. 02-6235
3.
In his appeal, Akers argues that venue was proper in
Tennessee and that the district court erred in each of its rulings
on the merits of his case.
Upon review, we affirm the district court’sjudgement for
the reasons stated by the district court. In 1994, Akers’ former
wife Bishop obtained an emergency protective order (EPO)
against Akers and began proceedings to dissolve their marriage.
Bishop alleged that Akers struck and threatened her. Akers was
arrested for violating the EPO and contempt of court, and he
was later charged with assault and stalking. He was convicted
of assault and stalking in 1996, but the Kentucky Court of
Appeals reversed the convictions and remanded the case for a
new trial. Akers was convicted of both charges after the second
trial. In May 2000, the appellate court affirmed the stalking
conviction but again reversed the assault conviction. Akers
pleaded guilty to the offense of assault under extreme emotional
disturbance in July 2000. While his criminal appeal was pending
in 1999, Akers filed a civil rights action against five of the same
defendants in this case, and a habeas corpus petition. The
district court dismissed the civil rights action sua sponte for
failure to state a claim and denied the habeas petition. Akers
did not appeal either decision.
First, we conclude that venue was proper in Kentucky
and improper in Tennessee because substantial part of the
events giving rise to Akers’ claims occurred in Lexington,
Kentucky. See 28 U.S.C. § 1391(b).
Second, we agree with the district court that Akers could
not seek damages for his criminal convictions through a civil
rights of RICO action. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994); Hermansen v. Chandler, No. 99-5943, 2000 WL 554058, at
*2 (6" Cir. Apr. 28, 2000); Stepehnson v. Reno, 28 F. 3d 26, 27-28
(5" Cir. 1994). Although the Kentucky Court of Appeals found
error in both of his trials, Akers now stands convicted of the
charges he claims were procured through a conspiracy among
the defendants. Because these convictions have not been
reversed or declared invalid, Akers cannot sue for damages in
a civil rights or RICO action.
Third, the district court properly held that Akers had no
claim for malicious prosecution. A claim of malicious
prosecution is actionable under § 1983 where all elements of the
state law tort are present and probable cause was lacking as
defined by Fourth amendment jurisprudence. See Albright v.
9
Oliver, 510 U.S. 266, 271-74 (1994); Coogan v. City of Wixom, 820
F. 2d 170, 174 (6" Cir. 1987). Under Kentucky law, a plaintiff
bringing a malicious prosecution claim must prove, among
other things, that the prosecution terminated in his favor.
Broaddus v. Campbell, 911 S.W..2d 281,283 (Ky. Ct. app. 1995.
Akers cannot satisfy this element because a jury convicted him
of stalking and he pleaded guilty to assault.
Fourth, the district court also properly held that, to the
extent Akers was challenging the results of his state court
conviction, the court lacked jurisdiction over his claims. See
district of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486
(1983); Rooker v. Fidelity Trust Co., 263 U.s. 413, 416 (1923). Under
the Rooker-Feldman doctrine, a federal district court may not hear
an appeal of a case already litigated in state court. In order for
Akers to prevail this action, he would have had to have shown
that the state courts erred by affirming his conviction for
stalking and accepting his guilty plea for assault. Because Akers
federal claims can only succeed to the extent that the state courts
were wrong, his claims are inextricably intertwined with the
state court decision. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,25
(1987) (Marshall, J.., concurring). Accordingly, the district court
lacked jurisdiction over Akers’ claims. See Feldmann, 460 US. at
486,; Rooker, 263 U.S. at 416. Construing the complaint is a light
most favorable to Akers and accepting all of his factual
allegations are true, he can prove no set of facts in support of his
claims that would entitle him to relief. See Sistruntk v. City of
Strongsville, 99 F.3d 194, 197 (6" Cir. 1996). For the foregoing
reasons, we affirm the district court's judgement. Rule
34(j)(2)(C), Rules of the Sixth Circuit.
ENTERED BY ORDER OF THE COURT
s/ LEONARD GREEN
Clerk
[END OFDOCUMENT]
10
Eastern District of Kentucky
FILED
SEP 26 2002
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 02-CV-162-JBC
JAMES G. AKERS PLAINTIFF
VS: [JUDGEMENT
CAROLYN P. BISHOP, ET AL. DEFENDANTS
In accordance with the Memorandum Opinion and
Order Dismissing, entered contemporaneously with this
Judgement, the court hereby ORDERS AND ADJUDGES:
(1) The motions to Dismiss filed in the Middle District of
Tennessee by Defendants Bishops, Williams, Layne, and
Shannon, Vaughn, Clark/ Overstreet/Goodwine/Red Corn/
Swartz/ Ferguson, Witt and Sheriff Does, Miller, Fleming, Kelly
and Rushing are SUSTAINED.
(2) The following Motions to Dismiss and /or Renewed
Motions to Dismiss filed on behalf of various defendants in this
court are GRANTED:
(a) The Motion for Judgement on the Pleadings
filed by Defendants Clark/ Overstreet /Goodwine/ Red Corn/
Swartz/ Ferguson [Record No. 2];
(b) The Renewed Motion to Dismiss filed by
Defendant Katherine Witt [Records No. 3];
(c) The Motion to Dismiss filed by Defendant
Jerry L. Kelly [Record No 6];
(d) The Renewed Motion to Dismiss filed by
Defendants Todd M. Layne and Donald Ray Shannon [Record
No. 11];
11
(e) The Motion to Dismiss filed by Defendant
Doris Fleming [Record No. 14];
(f) The renewed Motion to Dismiss filed by
Defendant Pamela Miller [Record No. 19];
(g) The Renewed Motion to Dismiss filed by
defendants John Vaughn and allen J. Rushing [Record No 20].
(3) The Motions of Plaintiff; (i) to Strike, (ii) for Default
Judgement, and (iii) for Summary Judgement [Record Nos.
5,7,12,25,28, and 32] are DENIED.
(4) The Agreed Motion of Defendant Ernest Williams to
Substitute Counsel [Record No. 30] is GRANTED.
(5) The motions filed by various defendants for
Enlargement of Time and/or to Stay Discovery [Record Nos.
15,20,23,26, and 34] are DENIED AS MOOT.
(6) This action (02-CV-162-JBC) is DISMISSED, with
prejudice.
(7) Judgement is entered on behalf of the following
named defendants, in their individual and official capacities,
where specified by Plaintiff in the Complaint: Carolyn Bishop;
Thomas D. Clark, Fayette Circuit Judge, former Fayette District
Judge, Commonwealth Attorney’s Office, Fayette County,
Kentucky; Central Bank & Trust Co. (and John Doe Defendants
therein); Fayette County Circuit Court; Fayette County, KY
Sheriff’s Office; Todd D. Ferguson, Assistant Attorney
General, State of Kentucky; Doris Fleming; Pamela D.
Goodwine, Fayette County District Judge; Todd M. Layne;
Lexington Fayette Urban County Government (and John Doe
Defendants therein); Jerry L. Kelly, Pamela Miller, Mayor of
Lexington, KY; Rebecca Overstreet, Fayette Circuit Judge; Lou
A. Red Corn, Assistant Fayette County Commonwealth...
..Attorney; Allen Rushing; Southland Christian Church (and
John Doe defendants therein); Donald Ray Shannon; Cindy
G. Swartz, Appellate Attorney in Attorney General of
Kentucky’s Office; John Vaughn, M.D.; Ernest W. Williams;
Katherine Witt, Sheriff of Fayett County; and the “ Association-
12
in-Fact,” comprised of all named defendants joint and severally.
(9) This is a FINAL and APPEALABLE order.
This the 25" day of September, 2002.
s/Jennifer B. Coffman
JENNIFER B. COFFMAN, JUDGE
Date of Entry of Service:
[END OFDOCUMENT]
13
Eastern District of Kentucky
FILED
SEP 26 2002
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 02-CV0162-JBC
JAMES G. AKERS PLAINTIFF
VS: MEMORANDUM OPINION
AND ORDER, DISMISSING
CAROLYN P. BISHOP, ET AL.
INTRODUCTION
The plaintiff, James G. Akers (“Akers”), filed a
complaint, pro se, in the Middle District of Tennessee, alleging
numerous violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 18
US.C.§ 1964, arising from various criminal and domestic
relations proceeding initiated against him in the Commonwealth
of Kentucky Fayette Circuit and District Courts over and eight-
year period form 1994-2000. Akers named twenty-three (23)
individual persons and/or entities as defendants.
Numerous defendants filed Motions to Dismiss, or in the
alternative, to Transfer Venue to this district because the events
of which Akers complains transpired here. Over Akers’’s
objections, the District Court for the Middle District of
Tennessee transferred this proceeding to the Eastern District of
Kentucky due to the inadequate contacts with the Middle
District of Tennessee. On Appeal of this transfer order, the Sixth
Circuit dismissed the case. Akers appealed that dismissal to the
United State Supreme Court. On June 24, 2002, the Supreme
Court denied Akers’ Petition for Writ of Certiorari.
14
NAMED DEFENDANTS -
Akers has named as defendants, the following persons:
(1) Carolyn Bishop, Akers’ former spouse; (2) Thomas D. Clark,
Fayette Circuit Judge, former Fayette District Judge; (3) the
Commonwealth Attorney’s Office, Fayette County, Kentucky;
(4) Central Bank & Trust Co., Lexington, KY, (and John Doe
defendants therein), Carolyn Bishop’s employer; (5) the Fayette
County Circuit Court; (6) the Fayette County, KY Sheriff's
Office; (7) Todd D. Ferguson, Assistant Attorney General, State
of Kentucky; (8)Doris Fleming, co-worker of Carolyn
Bishop/ trial witness; (9) Pamela D. Goodwine, Fayette County
District Judge; (10) Todd M. Layne, Counselor at Southland
Christian Church, Nicholasville, KY; (11) the Lexington Fayette
Urban County Government and John Does, defendants therein;
(12) Jerry L. Kelly, Carolyn Bishop’s divorce attorney; (13)
Pamela Miller, Mayor of Lexington, KY; (14) Rebecca Overstreet,
/ Fayette Circuit Judge; (15) Lou A. Red Corn, Assistant Fayette
County Commonwealth Attorney; (16) Allen Rushing, Carolyn
Bishop’s former boss at Central Bank, (17) Southland Christian
Church and John Does defendants therein; (18) Donald Ray
Shannon, acquaintance of Carolyn Bishop;; (19) Cindy G.
Swartz, Appellate Attorney in Attorney General of Kentucky's
Office; (20) John Vaughn, M.D., Carolyn Bishop's
physician/ trial witness; (21) Ernest W. Williams, one of Akers’
criminal defense attorneys from Tennessee; (22) Katherine Witt,
Sheriff of Fayette County; and (23) and “ Association-in-Fact,”
comprised of all named defendants jointly and severally.
RELIEF REQUESTED
Akers seeks to recover from all of the defendants, in
various groupings, jointly and severally and/or individually
and corporately, monetary damages exceeding $14 million,
interest; costs; attorneys’ fee (if any); and trial by jury.
15
PRIOR LITIGATION IN THIS COURT
The court takes judicial notice of the typed, fourteen-
page complaint Akers filed pro se in this court on May 10, 1999,
being Civil Action 99-173 (“the 1999 civil rights action”). Akers
named as defendants in the 1999 civil rights action several of the
defendants he named in the instant proceeding, to wit: Bishop,
Overstreet, Swartz, Red Corn, and Clark.'
The complaint Akers filed in the instant proceeding
arises in substantial part from the same facts and circumstances
as the 1999 civil rights action, which Akers filed while confined
in the Eastern Kentucky Correction Complex. In the 1999 civil
rights action, Akers alleged that he had been maliciously
prosecuted in the Fayette District and Circuit Courts and
demanded damages in excess of $30,000,000.00 from the
defendants. Akers alleged that Clark, Overstreet, Red Corn, and
other named defendants therein, all engaged in conspiratorial
activities violative of Akers’ civil right, resulting in his felony
convictions in 1996, and on retrial in 1998 on charges of
assaulting and stalking his former spouse, Carolyn Bishop, in
May of 1994. The facts span the period between May 1994 and
October 1998, and are summarized in this court’s May 1999
Memorandum Opinion and Order (“the 1999 Civil Rights
Order”), and are adopted and incorporated herein by reference.
Pursuant to the 1999 civil Rights Order, this Court dismissed the
1999 civil rights action sua sponte on grounds of: (1) prosecutorial
immunity with respect to defendants Red Corn and Swartz; ? (2)
Eleventh Amendment immunity with respect to defendant, the
Commonwealth of...
Akers also named Fayette County Attorney Margaret H.
Kannensohn and the Commonwealth Of Kentucky as defendants in the 1999
action. Akers did not name either as defendants in the instant proceeding.
Akers named Cindy Swartz as a defendant in the 1999 action
because she had filed a brief on behalf of the Kentucky Attorney General with
respect to the appeal Akers filed when he was convicted for assault and
stalking the first time, 1996, in Fayette Circuit Court.
3.
16
..Kentucky; (3) judicial immunity with respect to defendants
Clark and Overstreet; and (4) failure to state a § 1983 claim
against defendants Bishop. Akers did not appeal the 1999 Civil
Rights Order.
Akers’s marital discord between 1994 and 1998, and
resultant assault and stalking convictions, set forth in the 1999
civil rights action, are the same facts and circumstances Akers
alleges in the instant complaint, except that in the instant action
Akers has: (1) informed the court of developments in his
criminal and appellate proceedings subsequent to May, 1999; (2)
alleged additional and different federal statutory violations of
his constitutional rights under 42 U.S.C. § 1985 and RICO; and
(3) named additional defendants.
1999 HABEAS CORPUS PETITION
On June 28, 1999, five weeks after this court dismissed the 1999
civil rights action, Akers filed a petition in this court for habeas
corpus relief pursuant to 28 U.S.C.§ 2241 and 28 U.S.C.§ 2254,
which was docketed as Civil Case No 99-CV-242 and was styled
as “James Gorden Akers v. George Million, Warden Eastern
Kentucky corrections Complex et al” (“the 1999 habeas corpus
action”). The petition again reiterated all of the events
concerning Akers’ and Bishops marital discord and Akers’
subsequent criminal prosecutions in the Fayette District and
Circuit Courts between May, 1994 and June, 1999. Akers sought
an order from this court releasing him from the state custody on
bond during the pendency of his appeal of the 1998 assault and
stalking convictions, which appeal was then pending in the
Kentucky Court of Appeals. On February 2, 2000, this court
entered a judgement dismissing Akers’ habeas corpus petition.
Akers did not appeal this court’s dismissal of the 1999 habeas
corpus proceeding.
> The Fayette Circuit Court had denied Akers’ request for release on
bond pending appeal, as had the Kentucky Court of Appeals by order entered
March 8, 1999.
-4-
17
FACTUAL ALLEGATIONS OF INSTANT COMPLAINT
Akers’ submission in the instant case consist of: (1) a one
hundred-thirty-four (134) page complaint filed in the Middle
district of Tennessee; (2) a “Memorandum & Memorandum of
Law,” one hundred seventy-eight (178) pages in length; and (3)
a two-volume document entitled “Appendix/Relevant
Exhibits,” which volumes are six hundred thirty-eight (638)
pages in the aggregate. :
The following is a brief summary and/or construction 0
Akers allegations in the instant complaint and accompanying
material, without constituting a full reiteration of the facts
contained in the 1999 Civil Rights Order.
After a series of domestic arguments and altercations
between Akers and Bishop, while married in 1994, Bishop
obtained Emergency Protective Orders in the Fayette District
Court against Akers. Bishop perceived that Akers was
intentionally disregarding the terms of the EPO because of
constant phone calls and threats of physical harm she was
receiving from Akers’. Akers was held in contempt of court for
violating the EPO and was eventually indicted in 1995 in the
Fayette Circuit Court on charges of assault and stalking. Akers
was extradited from Tennessee to stand trial on the assault and
stalking charges in Kentucky. Akers was denied bail by
Defendant Rebecca Overstreet, who was the presiding Fayette
Circuit Court Judge on the assault and stalking charges.
Akers alleges that in 1996, he was convicted in the
Fayette Circuit Court (Judge Rebecca Overstreet presiding) for
the assault and stalking of Defendant Carolyn Bishop. Akers
appealed his conviction to the Kentucky Court of Appeals
which, in 1998, reversed his conviction and remanded the
charges for retrial, citing error by Overstreet. Akers was tried in
October, 1998, on the same charges and again convicted of both
counts, although the jury recommended a slightly more lenient
sentence on remand. Akers again appealed the 1998 conviction
to the Kentucky Court of Appeals. |
18
In May 1999, Akers filed the 1999 civil rights action in
this court, which this court dismissed as discussed supra. On
May 19, 2000, the Kentucky Court of Appeals entered and order
affirming the 1998 stalking conviction, but again ruled theat
continued evidentiary errors Overstreet committed after the case
had been remanded to her in 1998 justified yet a second reversal
of the assault conviction. On July 7, 2000, Akers pled guilty to
“ Assault under extreme emotional disturbance” in the Fayette
Circuit Court.
The instant complaint, as noted, refers to all of the
Akers/ Bishop marital problems, domestic violence episode, and
criminal proceedings which ensued between May 1994 and
November 1998, all of which had already been provided to the
court in the 1999 civil right action. The court notes that the first
89 pages of the 94 pages of facts in the instant complaint
reiterate the facts contained in Akers’ complaint in the 1999 civil
rights action and in the 1999 habeas corpus petition. Not until ©
page 89 does Akers allege new facts not contained in the two
preceding actions. Akers expanded the number of defendants
in the instant complaint and asserted additional theories of
wrongdoing on the part of the defendants in the instant
complaint ans asserted additional theories of wrongdoing on the
part of the defendants he had named in the 1999 civil rights
action. However, in the instant submission, Akers elaborates in
greater detail on every event between 1994 and 1998.*
Akers contends he was maliciously prosecuted and
unlawfully imprisoned for assaulting and stalking his former
spouse, and that he was the victim of conspiracies against him,
comprised of...
4 Akers discusses in detail the May4-5, 1994 physical altercations
between Bishop and Akers; Akers; unhappiness over the role he perceived
that Southland Christian Church (“SCC”) played in the break-up of his
marriage; Akers’ appearance in the Fayette District Court on domestic
violence charges; issuance of Emergency protective order against Akers; the
discussion of phone calls to Bishop’s then-place of employment (Central Bank
& Trust Co.); Akers assertion that Defendants Allen Rushing and Doris
Fleming at Central Bank were conspiring with Bishop to effect Akers’
imprisonment; that counselors at SCC were conspiring with Bishop to
OE vee ea ee .
Laide Eat ke)
19
imprison Akers and deprive him of constitutional rights; his 1995 extradition
from Tennessee; his 1995 indictment in Fayette Circuit Court,; his 1996
conviction for assault and stalking; the Kentucky Court of Appeal’s 1998
reversal and remand of his 1996§ conviction; his retrial in Fayette Circuit
Court in 1998 and resultant conviction in late 1998 on the same charges. Akers
has submitted to the court a 638 page Appendix containing apparently every
document pertaining to the Fayette District Court EPO/ Domestic Violence
proceeding and his Fayette Circuit Court felony prosecutions.
Included in the 638-page, two-volume Appendix are trial exhibits,
interlocutory orders, pre-trial motions and responses thereto, motions and
rulings relative to bond and bail requests, invoices for legal services from
Akers’ attorneys, correspondence of various nature, newspaper articles critical
to Overstreet, and test results. Akers 134-page complaint itself contains, in
numerous places, pages and pages of excerpts of testimony from his Fayette
District and Circuit Court proceeding and verbatim discussions he alleged
occurred between different defendants and Akers.
various groupings of the named defendants, Akers named as a
defendant herein almost anyone he perceived as having any
connections to his convictions, except the jurors.
SUMMARY OF CLAIMS
The thrust of Akers’s allegations concerning the
deprivation of his civil rights under § 1985 and RICO patterns of
racketeering activity is directed at defendants Bishop, Red Corn,
and Overstreet and is apparently premised upon the fact on
May 19, 2000, the Kentucky Court of Appeals reversed his 1998
assault conviction (for the second time) and remanded the
proceedings. The Kentucky Court of Appeals affirmed the
stalking conviction in this opinion. Akers describes almost
every ruling Overstreet issued during his 1996 trial and his 1998
retrial as being either fraudulent and/or constituting intentional
jury tampering. He alleges that Re Corn and Overstreet acted as
co-conspirators with respect to all pretrial and trial evidentiary
rulings which Overstreet entered against him, and with respect
to all testimony and/or evidence Overstreet admitted at both
trials, Akers alleges that all of the named defendants who
testified against him at either or both trials (in 1996 and 1998),
respectively) acted as conspirators to violate his civil rights.
20
With respect to Overstreet, Akers’ complaint alleges
numerous instances of trial court error by Overstreet during and
subsequent to his retrial in 1998. Akers alleges Overstreet stated
on the record, during a pre-trial proceeding, that she had not
read the [February 27, 1998] court of Appeals opinion [reversing
and remanding his 1996 convictions] and that, accordingly,
Overstreet repeated the same evidentiary errors which she
committed in 1996. Akers alleges that in another pre-trial
proceeding, after this case was remanded in 1998, Overstreet
denied him the right to pro se representation and the “right to be
heard”, referring to a comment Overstreet made on the record
consisting of “Besides, I think I already know how the jury is
going to rule in this case.”
— mm ee ee eee a es ee
Akers alleges that Overstreet committed additional
errors and rendered numerous improper and unfair rulings
during his October, 1998 retrial. All of these are set forth with
particularity on pp. 73-88 of Akers’ complaint. These allegations
are basically more detailed versions of the facts Akers alleged
previously in the 1999 Civil Rights Action.
Akers further alleged that the attorneys employed by the
Attorney General of Kentucky participated in “chain like
function” in the furtherance of conspiracies initiated by Bishop,
Vaughn, Red Corn, and Overstreet (and other named
defendants) by filing briefs on behalf of the Commonwealth of
Kentucky when Akers appealed his assault convictions in 1996
and 1998.
Akers contends that Overstreet and Red Corn
(primarily), and the other named defendants (secondarily)
conspired to and did not violate his civil rights in violation of §
1983 and § 1985(3), relying heavily on the Kentucky Court of
Appeal's May 19, 2000 “Opinion Affirming in Part, Reversing in
Part.”” Akers provided only excerpts of this opinion to this court
and incorporated the excerpts into his complaint at page 92.
Akers stated that the Court of appeal criticized Overstreet for
failing to read, much less follow, [the Court of Appeals]
21
instruction on remand; failed to exclude evidence of certain bad
acts [of Akers’]; erred in introducing evidence of Akers’ stalking
of Bishop while being tried for assault; failed to properly analyze
bad acts evidence of Bell [v. Commonwealth, 875 S. W.. 2d at
889, 890]; and failed to conduct separate trials on stalking and
assault during the October, 1998 retrial. The Kentucky Court of
Appeals concluded these errors justified reversing Akers’ 1998
assault conviction, but it affirmed the stalking conviction.
Akers states that he pled guilty on July 7, 2000 to Assault
under Extreme Emotional Disturbance, a Class D. Felony,’
under threat of the “tyranny and oppression of Red Corn and
° Akers did not provided to this court a full and complete copy of
this May 19, 2000 opinion. Akers inserted the “ Appendix” and labeled as
:”Exhibit DDDD,” what appears to be pages 1,15,16, and 20-23 of the May 19,
2000 Kentucky Court of Appeals Opinion.
Overstreet for and astounding third time around...as apparently,
the only means of escaping the ‘oppression’ of Bishop, Red
Corn, Overstreet, et al.” Akers further alleges as far as this court
can construe from page 94 of his complaint, that he was
imprisoned 1,094 days longer that her could have “lawfully”
been imprisoned as a result of any alleged “criminal conduct.”
Akers alleges numerous injuries as a result of various
violations of his civil rights, and RICO provision, by all of the
named defendants herein, including but not limited to:(1)
serious physical injury and threats thereof (and death); (2) life-
threatening and permanently debilitating disease; (3) extortion
and/or blackmail; (4) irreparable injury to his personal business
and reputation and career; (5) diminished quality of life; (6) loss
of income to business; (7) 40% permanent loss to his hearing;
and (8) business losses to his companies; (a) “Coleman, Akers &
Akers” in the amount of $860,000.00, and (b) “Cadre and/or
“Akers & Akers of Tennessee, inc.” in the amount of
$3,272,000.00.
22
Alleged Conspiracies
Akers alleges the existence of fourteen (14) different
conspiracies devised against him, in violations of 42 U.S.C. § §
1983 and 1985(2) and (3). These conspiracies are comprised of
a mixture of different named defendants alleged to have
participated in multiple conspiracies.
Akers alleges the existence of nine (9) separate RICO
violations committed by various groupings of named
defendants, specifying in detail particular “predicate acts” by
the defendants with respect to each alleged RICO violation.
Akers alleges, among other things, that the specified defendants
formed enterprises engaged in numerous “patterns of
racketeering activity.“ which activities had and maintained
effects on “interstate and foreign commerce” in violation of 18
US.C. ;
© Akers alleges on page 94 of his complaint that he was imprisoned
a total 1,335 days as a result of the criminal proceeding discussed in his
complaint.
§ § 1961 and 1962. As examples of “predicate acts”, Akers
alleges that various of the named defendants were responsible
for: (1) kidnapping; (2) unlawful imprisonment; (3) theft by
unlawful taking or disposition; (4) tampering with physical
evidence; (5) wire fraud; (6) mail fraud; (7) forgery in the second
degree; (8) theft by extortion; (9) blackmail; (10) extortion; (11)
tampering with a witness; (12) influencing [a] juror generally;;
and (13) civil rights intimidation.
Akers alleged that Bishop participated in approximately
six of the nine RICO conspiracies, and that Red Corn committed
overt action in furtherance of numerous conspiracies in violation
of RICO provisions by engaging in two or more predicate acts
of tampering with a witness and influencing a juror. Akers
mirrors these allegations with respect to Overstreet. Akers
alleged in a footnote that the only means by which an attorney
in Central Kentucky's legal community can “receive fair
23
treatment” and avoid being “victimized” in Overstreet’s court
is to secure Overstreet’s recusal by hiring her spouse to
represent them, further asserting that Overstreet capitalizes on
attorneys recusing her for the “express extortionate purpose
of...building the practice of her husband...”
Akers further alleged that Dr. John Vaughn, along with
other defendants, was part of a conspiracy designed to
prosecute and imprison Akers.’ Dr. Vaughn was the doctor
from whom Carolyn Bishop received medical treatment
following the May 4-5, 1994 altercation with Akers, which
episode initiated the domestic violence charges resulting in
eights years of legal proceedings.
” Akers alleges that Dr. Vaughn was involved in a RICO pattern of
racketeering and was engaged in a pattern designed to deprive Akers of his
civil rights by reason of billing Carolyn Bishop’s insurance company after
examining and rendering medical services to Carolyn Bishop. Dr. Vaughn
also testified against Akers in Akers’ 1998 retrial. He also alleges his own
attorney, defendant Williams, and Bishop’s divorce attorney, Defendant Kelly,
were engaged in prohibited RICO patterns of racketeering in the course of
performing isolated legal services on behalf of their respective clients
MOTION TO DISMISS FILED BY DEFENDANTS
Pending before this court are numerous motions to
dismiss filed on behalf of sixteen (16) different defendants.* It
is clear ffrom the factual and legal analysis of the Middle District
of Tennessee’s September 18, 2001, Memorandum in support of
its Order Transferring Venue that this court was the appropriate
court to address the merits of defendants’ motions to dismiss.
Once the Middle District of Tennessee determined that transfer
to this district was appropriate, it had not jurisdiction to
entertain or address the merits of the defendants’ motions to
dismiss.
24
When a motion for transfer under 28 U.S.C.A. § 1404(a)
has been granted, and the papers lodged with the clerk
of the transferee court, the transferor court-and the
appellate court that has jurisdiction over it-lose all
jurisdiction over the case and may not proceed further
with regard to it.
Wright, Miller & Cooper, Federal Practice and Procedure: § 3846
(2d ed. 1986).
Thus, the defendants’ original motions to dismiss, as
well as the renewed motions to dismiss are properly before this
court.
Some defendants have filed additional motions
requesting stays of discovery and/or enlargement of time in
which to file and answer to Akers’ complaint, until thirty days
after the court addresses the merits of the various motions to
dismiss. The judges and prosecutors have filed a supplemental
Motion to Dismiss Akers’ complaints alleging, among other
things, that it fails to comply with Fed. R. Civ. P8’s requirement
of a “short and plain” statement of the jurisdictional grounds,
the basis for relief, and demand sought. The Court agrees that
Akers’ pro se complaint completely violates the spirit of Fed. R.
Civ. P. 8, which requires a short and plain statement giving a
defendant notice of the claim against him. Akers complaint
contains a dissertation of his thoughts...
8 As discussed infra, after trarisfer of this proceeding to the Eastern
District of Kentucky, some of the defendants herein either renewed their
motions to dismiss filed in the Middle District of Tennessee or filed anew a
“Motion for Judgement on the Pleading,” reiterating defenses asserted
previously in Tennessee.
..and opinions. Defendant Ernest Williams has requested a
status conference. All of these additional motions are rendered
25
moot by reason of the court's opinion, infra, dismissing Akers’ s
complaint.
DISCUSSION
Standard of Review
Pro Se pleadings are held to less stringent standards than those
drafted by attorneys. See Cruz v. Beto, 405 U.S. 319 (1972);
Haines v. Kerner, 404 U.S. 519 (1972). The allegations in a pro se
complaint must be taken as true and construed in favor of the
plaintiff. Malone v. Colyer, 710 F. 2d 258, 260 (6" Cir. 1983).
Even taking all of Akers’ allegations as true, as dictated by
Malone v. Colyer, this court finds that based upon the numerous
defenses and legal doctrines asserted by the defendants, Akers’
complaint and accompanying material are frivolous and fail to
state a claim upon which relief can be granted.
Fed. R.Civ.P. 12(b) provides for the dismissal of claims
and parties for seven listed reasons. A motions to dismiss under
Fed. R.Civ.P. 12(b)(6) for failure to state a claim“ should not br.
granted unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim that would catitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Well-
pled allegations must be taken as true and must be construed
most favorably toward the non-movant. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). A complaint should be dismissed pursuant
to Fed.R.Civ.P.12 (b)(6) only if there is no law to support the
claims, if the alleged facts are sufficient to stat a claim, or if on
the face of the complaint there is an insurmountable bar to relief.
See Rauch v. Day & Night Mfg. Corp., 576 F. 2d 697 (6" Cir.
1978); Westlake v. Lucas, 537 F.2d 857 (6" Cir. 1976). The court
finds that Akers’ claims are insufficient to state a claim on which
relief can be granted and this his complaint should be dismissed
with prejudice. The court will address the...
26
various grounds upon which it concludes Akers’ complaint is
frivolous and deficient as a matter of law.
I.
DISMISSAL UNDER HECK V. HUMPHREY
Reduced to its core, Akers complaint alleges first that
nineteen of the named defendants conspired, in various
assortments; (1) to deprive Akers of his constitutional rights
guaranteed under the Fourth, Fifth, and Fifteenth Amendments
of the United States Constitution; (2) to deprive him of his
property; (3) to unlawfully imprison him for 1094 days; and (4)
to act in concert with each other in a pattern of racketeering
activity in violation of RICO statutes.
Akers’ complaint against these defendants involved in
his state court judicial proceedings is an unambiguous attempt
to collaterally attack his two state court criminal convictions and
what he describes as “unlawful imprisonment.” These state
court convictions consists of (1) a 1998 jury conviction for
stalking, affirmed on appeal in May, 2000, and (2) a guilty plea
Akers entered in July, 2000, to “Assault under Extreme
Emotional Disturbance. These conviction have not been
reversed or otherwise invalidated, and Akers does not so allege.
However, Akers is seeking $14 million in damages from the
named defendants on the basis of unlawful imprisonment
stemming from two state court convictions he alleges were
obtained by fraud, jury tampering, extortion, blackmail, and
other specified illegal means.
Heck v. Humphrey, 512 U.s. 477, 114 114 S. Ct. 2364
(1994), operates as a complete bar to Akers’ claim. Heck v.
Humphrey precludes the recovery of damages under § 1983 for
an allegedly unconstitutional conviction or imprisonment, or for
the other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, where the plaintiff is
unable to prove that the underlying conviction or sentence has
been: (1) reversed on direct appeal; (2) expunged by...
27
..executive order; (3) declared invalid by a state tribunal
authorized to make such determination; or (4) called into
question by a federal court's issuance of a writ of habeas corpus.
4d.,512 U.S. 477 486-87. Neither Akers’ 1998 stalking conviction,
affirmed on appeal in May, 2000, nor his assault conviction
obtained by a guilty plea in July, 2000 has been reversed,
expunged or declared invalid by any authorized tribunal. The
1999 habeas corpus action was dismissed. “A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not recognizable under § 1983.” Id. 512
U.S. at 487. Thus, the principles enunciated in Heck _v.
Humphrey bar Akers’ § 1983, § 1985, and RICO claims against
all the named defendants.
Clearly, if Akers were to prevail on any one or all of his
civil rights and/or RICO claims against any one or all of the
defendants named herein, an anomalous situation would exist
whereby Akers could conceivably be recovering damages for
actions associated with and resulting from allegedly
unconstitutional convictions and imprisonment, while Akers’
two state court criminal convictions would contemporaneously
remain intact, valid and undisturbed. This is precisely the type
of inconsistent result which the United States Supreme Court
ruled was prohibited in Heck. It is obvious from the
attachments to Akers’ 134-page complaint and 160-page
memorandum of law that Akers views his complaint as a vehicle
by which to relitigate, in full, every aspect of his two convictions
and the prison terms he served as a result of his convictions.
The Sixth Circuit Court of Appeals systematically applies
the principles enunciated in Heck to not only civil rights
plaintiffs whose criminal sentences have not been otherwise
reversed or expunged, but also to would-be litigants alleging
RICO violations by persons involved in their criminal
convictions in state court. See Hermanasen v. Chandler, 211 F.
3d 1269, 2000 WL 554058 (6" Cir. (Ky.)), cert. denied, 531 U.S.
997 (2000) (applying Heck v. Humphrey principle to civil actions
under RICO and holding that a federal court should not address
RICO claims which...
28
..necessarily impugn the validity of a state conviction unless the
plaintiff has already invalidated the conviction on direct appeal
or in a collateral proceeding under 28 U.S.C. § 2254 or § 2255).
Hermansen v. Chandler dictates that Akers’ RICO claims cannot
be maintained where his convictions have not been reversed.
II.
“FAVORABLE TERMINATION” OF A PRIOR
CRIMINAL PROCEEDING IS A PREREQUISITE OF A
§ 1983 MALICIOUS PROSECUTION CLAIM
Akers’ lists improper and illegal conduct by defendants
which he alleges resulted in his imprisonment. The most
significant allegations in Akers’ complaint are: ;
3 ...[t]he Plaintiff Akers was: ...(b)unlawfully
imprisoned in May and July, 1994 ...(f)
fraudulently and maliciously accused,
prosecuted and then imprisoned...from May 22,
1996 until April 15, 1998...
4 ..Akers’ was: [from October 28, 1998 until July,
2000] (d) yet again oppressively and unlawfully
prosecuted, convicted, and then imprisoned for
the very same unconstitutional and fraudulent
felony charges...as was the case in May of 1996.
Thus, Akers has labeled his essential claim as ‘malicious
prosecution’ which, he alleges, in turn resulted in his unlawful
imprisonment. A plaintiff alleging malicious prosecution andan
analogous § 1983 claim must demonstrate that the previous
prosecution, alleged to have been malicious, was terminated in
favor of the plaintiff. Dunn v. Tennessee, 697 F.2d 121, 126 (6"
Cir. 1982), cert. denied, 460 U.S. 1086 (1983) (“...this Court finds
that favorable terminations of the prior_criminal proceeding
marks the point at which a 1983 claim for malicious prosecution
accrues.”); Singleton v. City of New York, 632 F. 2d 185, 194-195
(2d Cir. 1980), cert denied, 450 U.S. 920 (1981) (plaintiff's claim
of deprivation of 1983 civil rights malicious prosecution may not
29
be stated without alleging and proving that the prosecution
terminated in some manner, indicating that plaintiff was not
guilty of the offenses charged).
This court, in Cissell v. Hanover Ins., Co., 647 F. Supp.
757, 758 (E.D. Ky. 1986), similarly addressed and defined the
parameters of maintainable federal § 1983 claims, expressly
relying on Singleton v. City of New York, supra, stating as
follows:
It is well established that a prerequisite for recovery in
both a common law malicious prosecution action and a
federal § 1983 claim analogous to such action is proof
that the previous prosecution alleged to be malicious
was terminated in favor of the present plaintiff. Singleton
v. City of New York . . .Lendes v. Sutter, 621 F. Supp. 1197
(D.N.J. 1985).
7
The Cissell opinion examined the six basic elements
required under Kentucky Law for a mailicious prosecution
action, the third of which is “the terminations of such
proceeding [either civil, criminal or administrative] in [the
original] defendant's favor,” citing Raine v. Drasin, 621 S.W. 2d
895, 899, (Ky 1981). According to Singleton, supra, “p]roceedings
are ‘terminated in favor of the accused’ only when their final
disposition is such as to indicate that the accused is not
guilty.”Id. at 193. 9 See also_MacFawn v. Kresler, 666 N.E. 2d
1359 (N.Y. 1996).
Akers bases the instant § 1983, § 1985, and RICO
conspiracy complaint on the fact that the Kentucky Court of
Appeals reversed his assault and stalking conviction in 1998,
and in March, 2000, reversed his subsequent 1998 assault
conviction. However, Akers’ criminal prosecution on the
stalking charge “ terminated” on or about June 19, 2000, thirty
days after the Court of Appeals rendered its May 19, 2000
opinion affirming the 1998 stalking conviction. Akers filed no
further...
30
9. There is some case law which imposes a slightly less stringent
requirement for establishing “termination in favor of the accused”; Smith-
Hunter v. Harvey, 734 N.E. 2d 750 (N.Y. 2000), held that a dismissal of a
criminal charge on statutory speedy trial grounds based upon prosecutor's
inaction, constituted a “favorable termination.” CfMartin v. Adler, 515 N.Y.
S. 2d 400, 405 (N.Y. sup Ct 1987) (dismissal for failure to prosecute was not
adjudicated on the merits; thus, malicious prosecution claim was barred). The
Smith-Hunter v. Harvey opinion noted, however, that is a criminal charge is
dismissed out of mercy requested or accepted by the accused , there is no
“favorable termination.” Id. at 753 (emphasis added). In the instant case, it is
undisputed that Akers pled guilty to Assault under Extreme Emotional
Disturbance, a Class D. Felony, on July 7, 2000.
appeals after the stalking conviction was affirmed. Akers’
criminal prosecution on the assault charge “terminated” on July
7, 2000, when he pled guilty to assault under extreme emotional
disturbance. These proceedings did not terminate when the
Kentucky Court of Appeals reversed Overstreet, in 1998 and
2000 and remanded the proceedings. They terminated at the
conclusion of the stalking appeal (thirty days after May 19, 2000)
and when Akers pled guilty to assault under extreme emotional
disturbance in July, 2000. Obviously, neither proceeding
terminated in Akers’ favor.
The 1998 and 2000 Orders and Opinions of the Kentucky
Court of Appeals, reversing Akers’ convictions and remanding
for retrial, did not, on their own, operate as a bases on which
Akers can premise his various civil rights and RICO claims. In
Smith v. Holtz, 87 F. 3d 108 (3" Cir. 1996), cert. denied, 519 U.S.
1041, 117 S. Ct 611, 136 L. Ed.2d 536 (1996), Smith sought
monetary compensation for his allegedly unconstitutional
conviction and imprisonment on murder charges. On direct
appeal the Supreme Court of Pennsylvania reversed Smith’s
conviction on evidentiary grounds and, as in the instant case,
remanded for a new trial. Before trial, however, all charges
against Smith were dismissed on the basis of newly discovered
prosecutorial misconduct. Smith sued for damages under § 1983
after the murder charges against him were dismissed. The
31
defendants moved to dismiss his complaint on stature-of-
limitations grounds, arguing that Smith’s claim was time-barred
because it accrued when his conviction was reversed by the
state’s highest court, even though Smith was still at the time of
the reversal, subject to ongoing criminal prosecution Akers
similarly asserts in the instant action that the two reversals and
remand by the Kentucky Court of Appeals triggered his
malicious prosecution claim against the defendants.
The Third Circuit concluded that Smith’s § 1983
complaint was timely because it was filed within the requisite 2
years from the date the criminal charges against him were
dismissed. The...
.. Third Circuit ruled that the dismissal of the charges, not the
earlier reversal and remand on direct appeal, commenced the
running of the limitations period. The court reasoned that the
reversal and remand of Smith’s conviction created a potential
for a judgement against Smith in the pending criminal
prosecution, which potential would have precluded Smith's
bringing a § 1983 claim against the defendants under the Heck
vy. Humphrey doctrine. The Third Circuit stated:
..[w]e must decide whether , under the teaching of
Heck[{v. Humphrey] a claim is cognizable under § 1983
where its success would necessarily imply the validity of
a future conviction that might be entered on a pending
_ criminal charge. We hold that such a claim is not
cognizable under § 1983....
...[s]uch a claim does not accrue so long as the potentioal —
for a judgement in a criminal prosecution continues to exist.
Smith v. Holtz, 87. F 3d at 110, 113 (Emphasis added). The third
Circuit ruled that the potential for Smith’s conviction was not
extinguished until the criminal charges against him were finally
dismissed.
Applying the Smith v. Holtz rationale to the instant
proceeding, the 1998 reversal and remand by the Kentucky
Court of Appeals created the potential of a judgement against
Akers on both charges because both charges were remanded for
retrial, which created the prospect or possibility of Akers being
convicted, on retrial, of either or both charges. In fact, on retrial,
Akers was convicted again on both charges; the stalking charge
was affirmed by the Kentucky Court of Appeals in May, 2000,
and the assault charge was again remanded for retrial. Akers
pled guilty to assault under emotional disturbance in July, 2000.
Thus, after each reversal and remand, the potential for Akers’
conviction ( qn both charges) became reality. Pursuant to Heck
v. Humphrey and Smith v. Holtz, Akers could not have
maintained a § 1983 action against any of the named defendants
immediately after the Kentucky Court of Appeals reveresed and
remanded, in either 1998 or 2000, ...
tt ee
.. because of the existence of the potential of his conviction on
retrial in the pending criminal prosecutions. Akers has since
been convicted of stalking and has since pled guilty to assault
under extreme emotional disturbance. Consequently, all of his
civil rights claims against these defendants are now completely
barred by the Heck v. Humphrey doctrine.
This court finds persuasive the following authorities
discussing the requirement of a final disposition and/or
termination of underlying criminal charges with regard to the
initiation of a malicious prosecution claim under § 1983: Ruff v.
Runyon, , 258 F. 3d 389 (6" Cir. 2001) (Bivens. claim for
malicious prosecution did not accrue until criminal charges were
dismissed); Shamaeizadeh v. Cunigan, 182 F. 3d391(6th Cir
1999)(same); Harvey v. Waldron, 210 F.3d 1008 (9 Cir. 2000)
(stating that Heck applies to both actual and potential conviction
in the context of accrual of action); Covington v. City of New
York, 171 F.3d 117, 124 (2d Cir. 1999) (§ 1985 claim would not
accrue for statute of limitations purposes until criminal charge
33
was actually dismissed); Uboh v. Reno, 141 F3d 1000 (11" Cir. .
1998) (holding the Bivens claim accrued after dismissal of
criminal charges); Burt _v. Smith, 181 N.Y. 1,5 (N.Y. 1905}
(favorable terminations is a prosecution that :finally ends in
failure”).
Hl.
EFFECT OF JULY, 2000 GUILTY
PLEA ON “FAVORABLE
TERMINATION” REQUIRMENT
Akers attributes his July 7, 2000 guilty plea to the fear of
being tried a third time by Red Corn in Overstreet’s court.
Akers’ guilty plea, however, prevents him form collaterally
attacking same in a subsequent civil suit.'° In Duerr v. Kentucky
& Indiana Bridge & R. Co., Ky., 116 S.W. ...
© Akers submitted as Exhibit “EEEE” in Volume II of his Appendix
[page 634] a copy of the “Judgement on the Guilty Plea,” which was entered
of record in the Fayette Circuit Court on July 10, 2000. Notwithstanding his
assertion that this plea was coerced, this court document clearly confirms
Akers’ plea to “ Assault under Extreme Emotional Disturbance” was knowing
and voluntary. The judgement states as follows:
325 (1909), Duerr filed an action for malicious prosecution
against the complaining witness after Duerr had pled guilty to
a reduced felony charge. Much like akers, Duerr alleged: (1)
that the complaining witness gave perjured testimony against
him; (2) that there was a conspiracy among a group of
individual to deprive him of his liberty; and (3) that the only
way to avoid a felony charge was to plead to a lesser offense
under duress and intimidation. In dismissing his malicious
prosecution claim, the highest court in Kentucky opined as
follows:
But the appellant completely closed the door of the
courts to his petition for redress when he admitted that
he had pleaded guilty to a charge that was made
unjustly, as he avers, against him. A person who comes
into open court and admits on the record that he is guilty
of the offense for which he is being prosecuted will not
afterwards be heard to say that the prosecution against
him was procured by fraudulent methods. He will not
be allowed to admit in one court that he was guilty, and
in another to plead his innocence. His public admission
of guilt in the criminal court was a complete and
unanswerable refutation of the charge that the
prosecution against him was unfounded.
Duerr at 326._See also Pennington v. Dollar Tree Stores, 28 Fed.
Appx. 482, 2002 WL 169547 (6™ Cir. (Ky)) (arrestee’s stipulation
that there was probable cause for her arrest and shoplifting
charge was not a termination of proceeding in her favor, as
required to support her malicious prosecution claim against
store and security firm). In the instant case, Akers stipulated
and agreed that there was probable cause for the charge to be
prosecuted. :
. “Normally a conviction alone is sufficient to establish
probable cause of a prosecution.” Dunn v. Tennessee, 697 F.2d
at 127. akers stands convicted of two felonies, to one of which he
entered a plea of guilty. See also Hendrix v. Cox & Associates,
1997 WL 710914, *4 (Tenn. CT. app.) (“In and of itself, a reversal
by this Court is insufficient to overcome the presumption [of...
The court, finding that the Defendant understand the nature of the
charges against him, that the Defendant understands the elements of
the charges against him and the elements of an lesser included
offenses and any defenses available to him at trial, that the
Defendant's plea is voluntary, and that the Defendant knowingly
and voluntarily waives his right of confrontation, and that there
is a factual basis for the Defendant's plea...
-20-
probable cause]; otherwise, every decision reversed by this
Court could form the basis for a malicious prosecution claim”).
In Singleton, supra, the Second Circuit Court of Appeals held
that a prosecution resulting in only a hungjury-not even a
conviction-precluded the plaintiff's claim of malicious
prosecution under § 1983. This court finds persuasive the
following analysis in Singleton:
Without proof that the criminal prosecution based on
probable cause was terminated in the defendant's favor,
no federal claim exists. To hold otherwise would permit
a defendant to relitigate the issue of probable cause by
way of a § 1983 action, despite the state court's
determination of that issue against him after full and fair
consideration of the evidence, thus posing the prospect
of harassment, waste and endless litigation, contrary to
principles of federalism.
Id. at 194
Akers’ two criminal convictions for assault and stalking
are unfavorable, final terminations of the criminal charges. They
have not been reversed and they remain valid, outstanding, and
dispositive of Akers criminal guilt on both charges. Thus, Akers
is precluded from asserting claims under § 1983, § 1985 and
RICO. This conclusion is consistent with the holding and
language of Heck v. Humphrey.
§1983 actions are subject to the ‘hoary rpinciple’ that civil
tort actions are not the appropriate vehicle for
challenging the validity of convictions and sentences.
The express objective of this holding were to prevent ‘a
collateral attack on [a] conviction through the vehicle of
a civil suit.’
Id. at 1144S. Ct at 2371
36
Accordingly, Akers claims of deprivations of
constitutional rights premised on §§ 1983, 1985 and RICO
statutes are dismissed.
DISMISSAL UNDER THE ROOKER-FELDMAN DOCTRINE
Several of the defendants have also raised the Rooker-
Feldman doctrine as a bar to Akers claims. This doctrine, “a
combination of the abstentions and res judicata doctrine, stands
for the proposition that a federal district court may not hear an
appeal of a case already litigated in stat court. A party raising
a federal question must appeal a state court decision through the
state system and then directly to the Supreme Court of the
United States.” United States v. Owens, 54 f. 34271, 274 (6" Cir
1995) (citing District fo Columbia Court of Appeals v Feldman,
460 U.S. 462, 476 (1983); Rooker v. Feldman Trust Co., 263 U.S.
413 (1923). Only the United States Supreme Court has
jurisdiction to correct state court judgements. Feldman, 460 US.
at 482.
This principle is equally true in constitutional cases
brought under § 1983, “since federal courts must give ‘full faith
and credit’ to the judicial proceedings of state courts.” Gottfried
y Medical Planning Services, Inc. 142 F.ed 326,330 (6" Cir.).,
cert. denied, 525 US. 1041 (1998), citing Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 85 (1984).
In Rowe v. Bank One , Indianapolis NA, 230F.3d 1359,
2000 WL 1477231 96" Cir. Sept. 25, 2000)(T able, unpublished),
the Sixth Circuit upheld the dismissal of a § 1983 action brought
by a plaintiff claiming that a bank had improperly foreclosed
and evicted him from his property in 1988, in violation of
Michigan law and his due process and equal protection rights.
The court held that Rowe's § 1983 action was precluded by res
judicata because (1) the state court ruled in favor of the
defendant on the merits of the defendant's foreclosure and
eviction action; (2) the allegations Rowe raised in the “illicit”
ee uae n
37
foreclosure action, i.e. perjury and falsification of records, were
either raised or could have been raised in the prior state court
actions; and (3) Rowe's § 1983 federal complaint involved the
same parties or their privies. Additionally, the Sixth Circuit
concluded that...
...the Rooker-Feldman doctrine precluded Rowe’s § 1983 claims
because they could be-or are- described as “the functional
equivalent of an appeal from the state court judgments in favor
of the defendant.” Rowe v. Bank One at **1.
The Rooker-Feldman doctrine-clearly dictates that this
court lacks subject matter jurisdiction to entertain Akers’§ 1983
and § 1985 claims, as well as the RICO claims, because they are
a collateral attack on his two state court convictions. Akers
cannot invoke federal jurisdication by couching his claims in
terms of a civil rights action. See Ritter v. Ross, 992 F 2d 750,754
(7" Cir. 1993, cert, denied, 510 U.S. 1046 (1994). Akers’ demand
for damages in inextricably interwined with the state court's two
judgements of conviction, and this court therefore lascks
jurisdiction to review that decision under the Rooker-Feldman
doctrine.
V.
ALTERNATIVE GROUNDS FOR DISMISSAL
Even if Akers complaint were not barred by Heck v.
Humphrey and the Rooker-Feldman doctrine, the complaint
suffers from other ceficiencies, which the court will now
address.
1. Preclusive Effect of 1999 Civil Rights Order
The 1999 Civil Rights Order dismissed Akers claims
against five defendarts he names in the instant case: Bishop,
Overstreet, Swartz, Red Corn and Clark. The 1999 civil rights
action stemmed from essentially the same set of facts and
occurrences (through and including May 10, 199) which form
the basis of the instant complaint. As discussed, the instant
complaint does contain some, but not many, facts alleged to
38
have occurred subsequent to May 10, 1999. While Akers has not
proceeded in the instant case in forma pauperis (IFP), case law
governing IFP proceedings (which usually also involve pro se
plaintiffs) is persuasive. Courts may appropriately dismiss IFP
actions as frivolous when the action “seek[s] to relitigate claims
which allege...
_.substantially the same facts arising from a common series of
events which have already been unsuccessfully litigated by the
IFP plaintiff.” Wilson v. Lynaugh, 878 F. 2d 846, 850 (5™ Cir.
1989); see also Curtis v. Boggs. 2001 WL 649735 (N.D. Tex.),
Robertson v. Burger King Corp. 1994 WL 424431 (E.D. La.).
Under Wilson, this court deems it appropriate to dismiss
the instant action against Bishop, Overstreet, Swartz, Red Corn
and Clark as frivolous. The present claims against these
defendants are essentially repetitive of the claims Akers asserted
in the 1999 civil rights action. Akers alleges “substantially the
same facts that arise from the commons series of events that
were unsuccessfully litigated by Plaintiff in [199].” Curtis v.
Boggs _ at **2. Thus, dismissal of Akers complaint against these
defendants is appropriate on these grounds.
2. 42 U.S.C. § 1985 (2)
Akers’ complaint fails to state a claim against the named
defendants he alleges violated 42 U.S.C. § 1985(2). In order to
state a claim under § 1985(2), a plaintiff must show either: (1) the
existence of a conspiracy to use threat, force or intimidation of
a witness or party to obstruct justice in any court of the United
States, Dooley _v. Reis, supra, oF (2) class-based invidious
discriminations with respect to a state court proceeding, Usher
v. City of Los Angeles, supra. .
With regard to the first prong of § 1985(2), Akers
complaint states no claim because his complaint alleges no
proceeding pending in any federal court, which involved a
conspiracy to deter, by force, intimidation or threat, any party or
witness, or which involved tampering with a juror. " Thus, the
first prong of § 1985(2) is unavailable as a jurisdictional basis.
39
Was v. Young, 795 F. supp. 1041, 1053 (E.D. Mich. 1992. ) with
respect to the second prong of § of 1985(2), a plaintiff must...
- 1) All of the facts of which Akers complained occurred in the
Commonwealth of Kentucky Fayette Circuit and District Courts.
..alleged the existence of “some racial, or perhaps otherwise
class based, invidiously discriminatory animus behind the
conspirators’ action.” Kush v. Rutledge, 460 U.S. 719, 726 (1983);
Bennett v. Batchik, 1991 WL 110385 (6 Cir. June 24, 1991). The
second prong of § 1985(2) focuses on the deprivation of equal
protection of the laws with respect to state court judicial
proceeding and thus the courts have required a plaintiff to
demonstrate his or a class of person’ denial of equal protection
of the law.
Akers has not stated a denial of equal protection of the
law; at best, his complaint alleges he did not receive due process
of the law at the hands of Overstreet and Red Corn during his
two trials.'* Akers does not allege a racial or class-based
invidious discrimination behind any of the defendants’ actions,
as require by Kush v. Rutledge, supra. Akers asserts a theory
that because he, a man, was prosecuted for domestic violence
offenses, he was in some sort of protected class of person. This
assertion does not rise to the level of establishing that Akers was
denied the equal protection of any law as a result of a racial or
otherwise class-based invidiously discriminatory animus. Akers
has not alleged that his race, or any other classification that
might apply t him, has been the object of a “class-based
invidiously discrimination animus,” as defined in Kush v.
Rutledge, supra; Phillips v. Intl. Ass‘n. of Bridge, Structural and
Ornamental Iron Workers, 556 F2d 939, 941 (9 Cir. 1977).
Akers has failed to argue that any defendants conspired to
deprive him of equal protection of the law by acting with
discriminatory intent. Even if § 1985(2) applied to the situation,
Akers has failed to make a sufficient allegations of conspiracy to
40
support such an action.
The facts, as alleged by Akers, are that his former spouse
initiated and EPO against him as a result of a physical
confrontation with him and that his continued efforts to violate
the EPO resulted...
|
|
12 45 USC. § 1985(3) does not apply where the defendants are
alleged to have conspired to deprive a victim of due process of law,; it applies
to alleged deprivation of equal protection of the law. Lewis v. Brautigam, 227
F. 2d 124 (5™ Cir. 1955).
in stalking charges and a subsequent indictment in Fayette
Circuit Court. A jury trial ensued where the judge presided, a
prosecutor prosecuted, and witnesses testified against him; a
verdict was rendered from which he appealed and a retrial
occurred thereafter. Akers’ allegations that these events, which
occurred in the normal process of a criminal prosecution,
constituted a conspiracy simply have no merit. Leon v. Federal
Reserve Bank of Chicago, 823 F.2d 928, 930 (6" Cir. 1987); Pillette
vy. Detroit Police Dept., 661 F. Supp. 1145, 1148 (E.D. Mich. 1987);
Porter v. Bainbridge, 405 F. Supp. 83, 91 (D. Ind. 1975) (holding
that an allegations of individual acts of several defendants taken
collectively to allegedly violate rights does not support an action
under § 1985(2));Moss v. Perkins, 682 F. Supp. 395, 396 (N.D. Ill
1988)(concluding that, in the absence of specific evidence of
conspiratorial agreement, the fact that defendants are associated
in some manner cannot be used to prove existence of a
conspiracy). Akers’ section 1985(2) claim must be dismissed.
3.42 U.S.C. §1985(3)
42 US.C. § 1985(3) pertains to a conspiracy to interfere
with civil rights, specifically the conspiracy to deprive a person
or a class of persons equal protection of the law. In order to
bring a 42 U.S.C. § 1985(3) claim, a plaintiff must demonstrate:
(1) a conspiracy; (2) that the conspiracy is for the purpose of
4]
depriving, either directly or indirectly, any person or class of
persons of equal protections of the laws, or of equal privileges
and immunities under the laws; (3) and act in furtherance of the
conspiracy; and (4) injury to either person or property, or
deprivation of any right or privilege of the United State citizen.
Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F 2d 218,
223 (6" Cir. 1991) (citing United Dhd of Carpenters & Joiners v.
Scott, 463 U.S. 825 (1983); Conklin v. Lovely, 834 F2d 543,548 (6"
Cir. 1987). A fifth requirement was established by the Supreme
Court in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), which
also requires that: (5) the conspiratorial conduct of which the
plaintiff complains must be propelled by “some racial, or
perhaps...
..otherwise class-base, invidiously discriminatory animus.”
Aulson v. Blanchard, 83 F.3d 1,2 (1 Cir. 1996) (citing Id.). Akers
has no actionable claim under § 1985(3), because he has not
alleged facts demonstrating that the defendants’ conduct was
motivated by racial or class-based discriminatory animus. Azar
v. Conley, 456 F 2d 1382, 1386 (6" Cir. 1972).
Section 1985(3) covers only conspiracies against: (1)
classes who receive heightened protection under the Equal
Protection Clause; and (2) “those individuals who join together
as a Class for the purpose of asserting certain fundamental
rights.” Bartell v. Lohiser, 215 F 3d 550, 559 (6" Cir. 2000), citing
Browder v. Tipton, 630 f 2d 1149, 1150 (6" Cir. 1980). See also
Haverstick Enterprises, Inc., v. Financial Federal Credit, Inc., 32
F.3d 989, 994 (6™ Cir. 1994). Thus, in Bartell, not even alleged
discrimination on the basis of a mental disability was actionable
under § 1985(3) as “ the Supreme Court has not conferred
Suspect or quasi-suspect status on statutory classifications
concerning the disabled.” Bartell, 215 F.3d at 560.
Akers alleges no facts even remotely suggesting he is a
member of any class receiving heightened protection under the
Equal Protection Clause. Akers has not alleged that any
defendants harbored any class-based animus toward any class
42
of which Akers is a member, in the class’s attempt to assert a
fundamental right. At most, Akers complains generally about
domestic violence laws that were validly enacted in 1993,
alleging that the real purpose of domestic violence to divest
men, in general, of their property. Akers has failed to allege
facts which reveal “class-based invidious discriminatory
animus’- or intent on the part of the alleged conspirators.
Accordingly, Akers’ claims asserted under 42 U.S.C. & 1985(3)
are dismissed.
4. RICO Claims
Akers has alleged violations of the Racketeer Influenced
and Corrupt Organization (” RICO”) Act codified at 18 U.S.C. §
1962. A civil RICO remedy is created in 18 U.S.C. § 1964(c) for
“Tajny...
..person injured in his business or property by reason of a
violation of section 1962 of this chapter. A violation of RICO
under § 1962(c) requires: (1) conduct, (2) on an enterprise, (3)
through a pattern (4) of racketeering activity. Sedima. S.P.R.L. v.
Imirex Co., 473 U.S. 479 (1985). See also Kentry v. Bank One of
Columbus NA. 92 F. 3d 384 (6" Cir. 1996). In order to establish
“racketeering activity,” the plaintiff must allege a predicate act.
It is unlawful “for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of -racketeering activity or collection of
unlawful debt.” 42 U.S.C. § 1962(c).
The definition of “enterprise” includes “any individual,
partnership, corporation, association or other legal entity, and
any union or group of individual associated in fact although not
alegalentity.” 18 U.S.C.§ 1961 (4). Two elements are necessary
to establish an “enterprise” under RICO, 18 US.C.A.§ § 1961(4),
1962(b),(c): First, there must be evidence of ongoing
organization, formal or informal, and evidence that various
43
associates function as a continuing unit; and second, the
enterprise must have an existence separate and apart from the
pattern of activity in which it engaged. Medallion TV
Enterprised, Inc. v. Selec TV of California, Inc. 627 F. Supp. 1290
(C.D. Cal. 1986) aff’d 833 F.2d 1360, cert. denied, 492 US. 917).
Akers’ allegation based on violations of the civil RICO
statue, § 1964(c), fails to state a claim on which relief can be
granted. Domestic relations disputes do not constitute a basis
for the invocation of RICO remedies. McMurtry v. Brasfield, 654
F. Supp. 1222 (E.D. Va. 1987). McMurtyr involved an attempt
by a father unhappy about his former spouse’s removal of their
son to Texas. Like Akers, McMurtry brought a RICO civil suit
against the mother, the mother’s father, and the mother’s law
firm, alleging mail fraud as a predicate act of RICO conspiracy.
The Eastern District of Virginia concluded that the plaintiff had
failed: (1) to adequately demonstrate injury to...
... business or property as his injuries were personal in nature; (2)
to establish racketeering activity based on mail fraud involving
correspondence between attorneys, concluding that such a
finding would chill an attorney’s effort and duties to represent
a client during pending litigation; (3) to establish a pattern of
racketeering, finding that the “alleged scheme” had only one
purpose (to get the boy to Texas); no other parties were
defrauded by the acts beyond the one “scheme”: and (4) to
establish the elements of RICO enterprise with respect to the
defendant law firm, finding that “enterprise” was meant to refer
to a being “different from, not the same as... the person whose
behavior the RICO act was designed to prohibit.” Id. at 1226,
citing United States v. Computer Sciences Corp., 689 F.2d 1181
(4™ Cir. 1982), cert. denied, 459 U.S. 1105 (1983).
Similarly, this court can discern no pattern of
racketeering affecting interstate commerce, nor can it find the
existence of a relationship affecting anyone other than Akers.
Thus, akers’ allegations must be dismissed for failure to state a
claim on which relief can be based. g
44
5. Judicial Immunity
Akers seeks damages against Defendants Clark,
Overstreet, and Goodwine for acts they performed in their
judicial capacities. These defendants assert the defense of
judicial immunity, which bars any recovery by Akers against
them. A plaintiff may recover damages against a judge only
when he or she has acted in “clear absence of all jurisdiction.”
Stump v. Sparkman, 435 U.s. 349, 356-57 (1978), quoting Bradley
v. Fisher, 13 Wall, 335, 351, 20L.Ed. 464 (1871). Immunity
extends to complaints arising out of judicial conduct in criminal
as well as civil suits. Pierson _v. Ray, 386 U.S. 547 (1967).
Furthermore, the common law immunity of judges applies to
suits under 42 U.S.C. § 1983, alleging deprivations of
constitutional rights. Pierson v. Ray, supra.
Defendants Clark, Overstreet and Goodwine were all
acting within their applicable jurisdiction when they presided
over their respective proceeding involving Akers between 1994
and...
2000. Akers alleges that Overstreet, in particular, ruled against
him on all motions pertaining to his criminal felony charges and
on related matters such as bail. He complains that her failure to
follow the Court of Appeals’ 1998 opinion reversing and
remanding was malicious and fraudulent, causing him to be
unlawfully imprisoned and to lose money in his business. In its
May, 2000 Opinion, the Kentucky Court of Appeals commented
on Overstreet’s failure to follow its prior 1998 instructions on
separate trials and evidentiary matters. Nonetheless, her
conduct is protected by judicial immunity and is not actionable
under § § 1983, 1985, or RICO. The Supreme Court has
specifically held that even the commission of grave procedural
errors, including those involving due process, do not constitute
action taken in the clear absence of all jurisdiction. Stump, 435
US. at 359. See Sevier v. Turner, 742 F2d. 262 (6 Cir. 1984), in
which the Sixth Circuit held that judge’s failure to inform the
plaintiff of his constitutional rights, though a grave procedural
error, did not subject him to damages.
a ™ are
45
Akers alleges that Overstreet acted maliciously toward
him throughout the pendency of his felony proceeding over
which she presided. Judicial action, even if sone maliciously, or
even if it was in excess of his or her authority, will not subject a
judge to liability. Stump at 485 U.S. 356-357. See also Mireles v.
Waco, 502 u.s. 9, 11-12 (1991) (per curiam) (immunity is
available even if a judge acts erroneously, corruptly, or in excess
of his jurisdiction), and Mitchell v. McBryde, 944 F. 2d 229, 230
(5" Cir. 1991) (fact that judge was alleged to have acted in a
conspiracy and committed grave procedural errors was
insufficient to avoid absolute judicial immunity). Akers’
complaint alleges nothing that amounts to these judges’ acting
outside their roles as judges or performing non-judicial acts. He
alleges, at most, that he did not agree with their decisions; that
they were wrong; and that as a result of those decision, he was
adversely affected. While Akers continually describes the
Judges’ conduct as “fraudulent,” he alleges no facts establishing
that they in fact committed any...
“fraud” against him. They simply rendered rulings adverse to
Akers’ interest. A judge’s rulings on motions, even if they are
detrimental to a litigant’s case, constitute judicial actions and are
thus protected by judicial immunity. Stump, 485 U.S. at 363
(disagreement with action taken by judge does not deprive him
of judicial immunity). See also Clark v. Taylor, 627 F.2d 284
(D.C.Cir. 1980). Thus, absolute judicial immunity bars Akers’
claims against all of the defendant judges.
6.Pr torial Immunity and si-Judicial Immuni
Like the judges, the prosecutors, Lou Anna Red Corn,
Cindy G. Swartz, and Todd D. Ferguson, enjoy prosecutorial
immunity because they acted within the scope of their duties in
initiating and pursuing a criminal prosecution and in presenting
the Commonwealth of Kentucky's case at trial and on appeal.
Imbler_v. Patchman, 424 U.S. 409 (1976). See also Grant v.
Hollenbach, 870 F 2d. 1135 (6" Cir. 1989) (prosecutors were
46
absolutely immune from the claim they conspired to knowingly
bring false charges despite claims of failure to investigate facts
and alleged commission of perjury before the grand jury).
Therefore, akers has no claim against Defendants Red Corn,
Swartz and Ferguson.
With respect to Defendants Witt, the Fayette County
Sheriff’s Office, the Commonwealth Attorney’s office, and the
Fayette Circuit Clerk's Office, Akers has notarticulated any facts
substantiating that they violated his constitutional rights; but
even if he had so stated, these defendants enjoy a quasi-judicial
immunity pursuant to Bush v. Rauch, 38 F 3d 842 (6™ Cir. 1994).
Quasi-judicial immunity extends to non-judicial officers acting
as arms of the court, who are “performing tasks so integral or
intertwined with the judicial process that these persons are
considered as arms of the judicial officer which is immune.” Id-
At 847, citing Scruggs v. Moellering,, 876 F2d376 97™ Cir.), cert.
denied, 493 US. 956 (1989). This court finds that these
defendants were performing tasks integral to the judicial process
concerning their limited involvement with Akers
At a minimum, these defendants are entitled to assert
qualified immunity as a defense to Akers’ claims. Akers has
failed to articulate what, if any, “clearly established right of
which a reasonable person would have known” these particular
defendants violated. Harlow v. Fitz rald, 457 U.S. 800, 818
(1982). A clearly established right must be determined by a
district court finding binding precedent of the Supreme Court,
its courts of appeals, or itself. Ohio Civil Serv. Employees
Assoc. v. Seiter, 858 F2d 1171 (6" Cir. 1988). The court finds that
these defendants have qualified immunity. Russo _v. City of
Cincinnati, 953 F. 2d 1036 (6™ Cir. 1992).
7. Witness Immunity
Defendants Layne, Shannon, Vaughn, Rushing, Fleming,
and Bishop, as witnesses in judicial proceeding against Akers,
are immune from civil liability under 42 U.S.C. § 1983, even if
5
:
47
they knowingly gave perjured testimony. Briscoe v. Lahue 460
U.S. 325, 103 S. Ct 1008 (1983). See also Macko v. Bryron, 760
F.2d 95 (6" Cir. 1985). Thus, Akers allegations that -these
witnesses / defendants allegedly gave false testimony during his
two trial do not form the basis for a viable claim against these
defendants.
8. 42 U.S.C. § 1983
Akers has alleged that Defendants Layne, Shannon,
Vaughn, Fleming, Rushing, Kelly, Williams, and Bishop have all
violated § 1983, which is a federal civil rights statute. To
establish a right to relief under § 1983, the plaintiff must plead
and prove two essential elements. He must show, first, that he
has been deprived of right secured by the Constitution or laws
of the United States, and, second, that the defendants allegedly
depriving him of those right acted under color of state law.
Parratt v. Taylor, 451 U.S. 527, 535 91981); O’Brien v. City of
Grand Rapids, 23F.3d 990 (6" Cir. 1994).
A plaintiff cannot assert a § 1983 claim against an
individual who did not act under color of state law. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744 (1982), and
Kelm v. Hyatt, 44 F.3d 415 (6" Cir. 1955). Akers has not alleged
that these defendants acted under color of state law in allegedly
depriving him of his constitutional rights. Carolyn Bishop's
utilization of the Fayette District Court’s domestic violence
protection procedures does not convert her into a state color.
Kelm at 421 (wife’s utilization of a state statute did not cause her
to be a “state actor”). See also Nowicki v. Bruff, 103 F3d, 130,
1996 WL 694141 (6 Cir. Dec. 3, 1996) (dismissal of plaintiffs §
1983 claims against his ex-wife and her two attorneys, arising
out of a domestic relations case, was proper as they did not act
under color of state law).
Akers’ allegations that the testimony of Vaughn, Layne,
Shannon, Fleming, Bishop and Rushing against him at trial and
Bishop’s testimony against him before the grand jury violated
A8
his rights under federal law fail, because § 1983 does not allow
for recovery of damages against a private party for testimony in
a judicial proceeding. Briscoe v. Lahue,supra, 103 S. Ct. at 1112-
13 (“It is beyond question that when a private party gives
testimony in open court in a criminal tril, that act is not
performed ‘under color of law’.”). See also Miller v. Glanz, 948
F. 2d1562 (10" Cir 1991) (plaintiff's § 1983 claims against
prosecution witnesses who procured plaintiff's battery
convictions were properly dismissed, as was plaintiffs complaint
that the same defendants conspired to violate plaintiff's civil
right by giving false testimony). Accord, Alioto_v. City of
Shively, Kentucky, 835 F.2d 1173, 1174 (6™ Cir. 1987) (Briscoe
immunity extended to alleged conspirators to commit perjury).
This court, therefore, dismisses Akers’ complaint in its
entirety on the basis that it fails to state a claim against any of
the named defendants. Fed.R.Civ.P. 12(b)(1).
DISMISSAL OF STATE CLAIMS
The federal claims against all of the named defendants
will be dismissed in this actions; therefore, Akers’ pendent state
claims, asserted under Tennessee law, should be dismissed as
well. United Mine workers of America v. Gibbs, 383 U.S. 715,
726 (1966). When a plaintiff has no federal cause of action, a
district court may exercise its discretion to dismiss his pendent
state law claims. Gregory v. Hunt, et. al., 24 F. 3d 781 (6™ cir.
1994). With regard to the construed state law tort claim of
malicious prosecution, since the plaintiff has no federal claim,
the court declines supplemental jurisdiction to consider the state
claim. See 28 U.S.C. § 13679(c)(3) (district court may decline to
exercise supplemental jurisdiction if the court has dismissed all
claims over which the court has original jurisdiction). Akers’
state tort claim of malicious prosecution is dismissed.
Accordingly, this court being advised, IT IS ORDERED
that this action (02-CV-162-JBC) is DISMISSED WITH
PREJUDICE and judgement shall be entered contemporaneously
with this Memorandum Opinion and Order in favor of the
49
named defendants herein.
This the 25" day of September, 2002.
s/Jennifer B. Coffman
JENNIFER B. COFFMAN, JUDGE
Date of Entry and Service:
-34-
[END OF DOCUMENT]
50
FEB 21 2002
LEONARD GREEN, CLERK
Case No: 01-6243
UNTIED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
JAMES G. AKERS
Plaintiff - Appellant
V.
CAROLYN P. BISHOP, et al
Defendants - Appellees
BEFORE: KENNEDY and DAUGHTREY, Circuit Judges; Bell,
Chief District Judge*
Upon consideration of the motion previously filed by the
appellant to stay the mandate,
It is ORDERED that the motion be and it hereby is
DENIED.
ENTERED BY ORDER OF THE COURT
“<” /Leonard Green, Clerk
* The Honorable Robert Holmes Bell, Chief United States
District Judge for the Western District of Michigan, sitting by
designation.
———————LK
51
FILED
JAN 24 2002
Leonard Green, Clerk
No. 01-6243
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES G. AKERS, )
Plaintiff-Appellant _ )
Vv. ) ORDER
)
)
CAROLYN P. BISHOP, et, al )
)
Defendants-A ppellees)
Not Recommended For Full!-
Text Publication.
Sixth Circuit Rule 28(g) Limits citation to
specific situation. Please see rule 28(g)
before citing ina Proceeding ina court in
the Sixth Circuit limited, a copy must be
served on other parties and the court..
This notice is to be prominently displayed
if this decision is reproduced.
Before: KENNEDY and DAUGHTRY, Circuit Judges; BELL,
Chief District Judge.*
This matter is before the court upon consideration of
motions of the appellees to dismiss the appeal on the basis that
the order transferring the case to a different district court is not
a final or appealable order. The appellant responded arguing
that the order is appealable under the collateral-order doctrine.
See Cohen v. Beneficial Indus. Loan Corp., 337 US., 541, 546-47
(1949). The appellantalso filed a motion seeking reconsideration
of the clerk’s letter holding the briefing schedule in abeyance
pending a ruling on the motions to dismiss.
A review of the documents before the court indicates that
the appellant filed a civil complaint in the United States District
SI
52
Court for the Middle District of Tennessee. The court
transferred the case to the United States District for the Eastern
District of Kentucky. Appellant appealed the order transferring
the case.
This court lacks jurisdiction over this appeal. The order
transferring the case is not appealable. See SongBryd, Inc. Vv.
Estate of Grossman, 206 F.3d 172, 176(2d Cir), cert. denied 531 U.S.
824 (2000); Lemon v. Druffel, 253 F.2d 680, 683 (6 Cir. 1958). A
ruling on a motion to... a
*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
No. 01-6243
~~
_..transfer is not appealable under the collateral order exception.
FDIC v. McGlamery, 74, F.3d 218, 222(10th Cir. 1996);
Middlebrooks v. Smith, 735 F.2d 431,432(11th Cir. 1984).
It is ordered that the appeal be dismissed. The motion
for reconsideration is der.’ed as moot.
ENTERED BY ORDER OF THE COURT
s/ Leonard Green, Ir.
Clerk
[END OF DOCUMENT]
53
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES G. AKERS,
Plaintiff
No. #:00-1142
JUDGE ECHOLS
)
)
)
)
)
)
CAROLYN P. BISHOP, DORIS )
FLEMING, ALLEN I. RUSHING, )
TODD M. LAYNE, DONALD )
SHANNON, JERRY L. KELLY, )
JOHN J. VAUGHN, THOMAS D. )
CLARK, KATHERINE WITT, )
PAMELA MILLER, LOU A. )
RED CORN, REBECCA M. )
OVERSTREET, CINDY G. )
SWARTZ, ERNEST W. WILLIAMS, )
TODD D. FERGUSON, PAMELA )
D. GOODWINE, and various JOHN )
and JANE DOES, )
Defendants. )
ORDER
Presently pending before the Court are Motions to
dismiss by Defendants Bishop, Williams, and Rushing (Docket
Entry Nos. 55,71 & 73) and Motions to Dismiss or Transfer by
all other Defendants (Docket Entry Nos. 31, 34, 37, 38, 42,51, &
76). Plaintiff has filed several documents in opposition.
For the reasons explained in the Memorandum entered
contemporaneously herewith, Defendants’ Motions to Transfer
are hereby GRANTED, and this case is hereby TRANSFERRED
to the United States District Court for the Eastern District of
Kentucky.
Defendants’ Motions to Dismiss are hereby DENIED AS
MOOT.
54
It is so ORDERED.
ANA ade AT A Ise Mite tn BNA Os Ne hey
s/ Robert L. Echols
ROBERT L. ECHOLS
UNITED STATES DISTRICT JUDGE
1
This document was entered on
the docket in compliance with
Rule 58 and/or Rule 70(a).
FRCP on _ 9-18-01 __ by _jr
Si nie
[END OF DOCUMENT]
4
55
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES G. AKERS,
Plaintiff
No. #:00-1142
JUDGE ECHOLS
V.
)
)
)
)
CAROLYN P. BISHOP, DORIS )
FLEMING, ALLEN I. RUSHING, )
TODD M. LAYNE, DONALD )
SHANNON, JERRY L. KELLY, )
JOHN J. VAUGHN, THOMAS D. )
CLARK, KATHERINE WITT, )
PAMELA MILLER, LOU A. )
RED CORN, REBECCA M. )
OVERSTREET, CINDY G. )
SWARTZ, ERNEST W. WILLIAMS, )
TODD D. FERGUSON, PAMELA )
D. GOODWINE, and various JOHN )
and JANE DOES, )
Defendants. )
MEMORANDUM
Presently pending before the Court are Motions to
dismiss by Defendants Bishop, Williams, Rushing (Docket Entry
Nos. 55, 71 & 73) and Motions to Dismiss or Transfer by all other
Defendants (Docket Entry Nos. 31, 34, 37, 38, 42, 51, & 76).
Plaintiff has filed several documents in opposition.
For the reasons explained herein, Defendants’ Motions
to Transfer will be GRANTED, and this case will be
TRANSFERRED to the United States District Court for the
Eastern District of Kentucky. Defendants’ Motions to Dismiss
will be DENIED AS MOOT.
; Plaintiff, who proceeds pro se, has filed a 134-page
Complaint (Docket Entry No. 1) against sixteen individuals and
numerous unnamed defendants. He alleges claims for
violations of his...
56
This document was entered on
the docket in compliance with
Rule 58 and/or Rule 70(a).
FRCP on __9-18-01__ by _jr
_..constitutional rights under 42 U.S.C. § 1983 (1994 & Supp. IV),
conspiracy to violate his constitutional rights under 42 U.S.C. §
1985 (1994), and violations of the Racketeer and Influenced
Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-68 (1964 &
Supp. IV). Because the claims are based on federal law, this j
Court has subject matter jurisdiction pursuant to 28 U.S.C. § )
1331 (1994).
This lawsuit arises from Plaintiff's criminal convictions
for stalking and assaulting Defendant Carolyn Bishop, his
former wife. The defendants include judges, prosecutors, and
witnesses involved in the criminal proceeding which took place
in state courts in Kentucky. Plaintiff alleges in the instant suit
that his Kentucky state court convictions resulted from an
unlawful conspiracy between the Defendants.
Defendants now move to dismiss for lack of jurisdiction
pursuant to Rule 12(b) (2), for lack of venue pursuant to Rule
12(b) (3), and for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b) (6) of the Federal Rules of Civil
Procedure. All Defendants except Bishop, Williams, and
Rushing seek, in the alternative, to have the case transferred
pursuant to either 28 U.S.C. § 1404(a) (1994) or 28 U.S.C. §
1406(a) to the united States District Court for the Eastern District
of Kentucky.
The applicable venue statue states,
A civil action wherein jurisdiction is not founded solely
on diversity of citizenship may, except as otherwise
provided by law, be brought only in...a judicial district
in which a substantial part oi the events or omissions i
giving rise to the claim occurred ....
28 U.S.C. § 1391(b) (2) (1994).
The Court has reviewed Plaintiff's lengthy Complaint,
and the only events alleged to have occurred in this District are
some telephone calls to and from his former wife, Defendant
Carolyn Bishop, in Lexington, Kentucky, which may have
violated a protective order and formed the basis for contempt
charges, and his extradition in October 1995 from Tennessee in
Kentucky after his arrest. All other events alleged in the
Complaint occurred in the Eastern District of Kentucky,
including his divorce, the events that led to his arrests, his trial
in state court, sentence, and the location of his incarceration.
Therefore, based upon the record before the court, the Court
concludes that “a substantial part of the events or omissions
giving rise to the claim[s] occurred” in the Eastern District of
Kentucky. Only a few tangential acts/events are alleged to have
occurred in the Middle District of Tennessee. Consequently, the
Court finds that venue does not lie in this District under 28
U.S.C. § 1391(b)(2).
However, RICO claims have a special venue statute, 18
U.S.C. § 1965 (1994), which states in part:
(a) Any civil action or proceeding under this chapter
against any person may be instituted in the
district court of the United States for any district
in which such person resides, if found, has an
agent, or transacts his affairs.
(b) In any action under section 1964 of this chapter
in any district court of the United States in which
it is shown that the ends of Justice require that
other parties residing in any other district be
brought before the court, the court may cause
such parties to be summoned, and process for
that purpose may be served in any judicial
district of the United States by the marshal
thereof.
18 U.S.C. § 1965 (a) and (b).
The only Defendant who resides, is found, has an agent
or transacts his affairs in this District is Ernest Williams.’
Apparently, Plaintiff does not dispute that venue cannot
lie in this District as to his RICO claims against the other fifteen
Defendants based on 18 U.S.C. § 1965 (a). Giving Plaintiff's
allegations the liberal construction afforded pro se litigants,
however, he maintains that venue exists here as to the claims
against the remaining Defendants pursuant to 18 U.S.C. § 1965
(b). As expressly stated in the statute, before a district court can
summons partied from other districts to answer to a RICO
claim, it must find that “the ends of justice” so require.” What is
required to meet “the ends of justice” requirement under the
statute is not crystal clear, but, at a minimum, the Court must
determine that there is no other district which has personal
jurisdiction and venue over all members of the alleged RICO
conspiracy. See Butcher's Union Local No. 498 United Food &
Commercial Workers v. ...
ne
2 — _
Defendant Wifiane nor Ans cont sale Pane fraudulent IRs the
text of the statute indicates, a district court must have personal jurisdiction
over at least one defendant pursuant to 1965(a) in order to bring the other
members of an interstate conspiracy before the court pursuant to 1965(b). See
Butcher’s Union Local No 498, United Food & Commercial Workers v. SDC
Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986). Since it is not essential to the
Court's resolution of the pending motions, the Court expresses no opinion on
this issue.
2Even then, a district court is not mandatorily required to bring the
other parties before the court, since the statue provides only that the Court
“may” cause such parties to be summoned and process be served in other
districts. See 18 U.S.C. § 1965 (b).
59
SDC Inv., Inc., 788 F2d 535, 538-39 (9" Cir. 1986). The Second
Circuit, in discussing an assertation of personal jurisdiction
based upon 18 U.S.C. § 1965 (b), stated as follows,
This jurisdiction is not automatic but requires a showing
that the “ends of justice” so require. This is an
unsurprising limitation. There is no impediment to
prosecution of a civil RICO action in a court foreign to
some defendants if it is necessary, but the first
preference, as set forth in § 1965 (a), is to bring the
action where suits are normally expected to be brought.
Congress has expressed a preference in § 1965 to avoid,
where possible, haling defendants into far flung fora.
PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d
65, 71-72 (2d Cir. 1998).
Based upon the record in this case, the Court finds that
the “ends of justice” do not require that the other fifteen
defendants be haled into this Court from other districts. First,
the entire case can be litigated in the Eastern District of
Kentucky, where most of the Defendants are located and almost
all the alleged illegal acts occurred. As noted previously, venue
is proper in that District and said District Court has personal
jurisdiction over every defendant under Section 1965. More
specifically, thirteen Defendants live there; Defendant Rushing,
who now lives in Knoxville, lived there at the time of the events
that led to this lawsuit; and Defendant Williams, who lives in
Franklin, Tennessee, represented Plaintiff in that District during
his trial there. See Int'l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945) (personal jurisdiction requires “certain minimum
contacts” with the forum state and “that the maintenance of the
suit [against the non-resident defendant] does not offend
traditional notions of fair...
play and substantial justice.”). Based upon the facts and
circumstances of this case, the Court finds that justice does not
60
require that this case be litigated here.
Second, even if the Court permitted Plaintiff to litigate
his RICO claims here, venue would still be improper as to his
Section 1983 and Section 1985 claims because a substantial part
of the events giving rise to Plaintiff's claims did not occur in this
District (28 U.S. C. § 1391 (b)(2) and Title 18 U.S.C. § 1965 (a)
applies only to the RICO claims; not the Section 1983/Section
1985 claims. There has been no suggestion that this Court
should dismiss the Section 1983/Section 1985 claims or sever or
transfer them to the Eastern District of Kentucky, and proceed
to trial here on the RICO claims. Such a course of action would
not promote judicial economy and would delay and add
additional hardships to the parties. Therefore, for the reasons
stated, the Court concludes that venue does not properly lie in
this District for Plaintiff's RICO Claims.
Having determined that proper venue does not lie in this
District, the Court nest addresses the issue of dismissal or
transfer. Title 28 U.S.C. § 1406 (a) provides as follows:
The district court of a district in which is filed a case
laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have
been brought.
As previously noted, this suit could have been brought in the
Eastern District of Kentucky, and the venue and personal
jurisdiction requirements are satisfied there as to every claim of
the Plaintiff. Since an outright dismissal might subject Plaintiff's
claims to legal defenses under applicable statutes of limitations,
the Court finds that it is in the interests of justice to transfer the
case to the Eastern District of Kentucky. ,
For the foregoing reasons, Defendants’ Motions to
Transfer will be GRA _and this will be TRANSFERRED to
the United States District Court for the Eastern District of
———————
6]
Kentucky. Defendants’ Motions to Dismiss will be DENIED AS
MOOT.
An appropriate order will be entered.
s/ Robert L. Echols
ROBERT L. ECHOLS
UNITED STATES DISTRICT JUDGE
> Given this disposition, the Court need not address Defendants’
other arguments including the contentions of the many Defendants who claim
that this Court lacks personal jurisdiction over them. See Pittock v. Otis
Elevator Co., 8 F3d 325, 329 (6" Cir. 1983) (Citing Goldlawr, Inc. v. Heiman,
369 U.S. 463 (1962)) (transfer under 1406 (a) is permissable even where there
is both improper venue and lack of personal jurisdiction in the transfer or
forum).
{END OF DOCUMENT]
———,
62
C.O.A. CASE NUMBER: 02-6235
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES G. AKERS, )
)
Plaintiff-Appellant, )
) |
V. ) MOTION FOR |
) RECONSIDERATION |
) |
)
CAROLYN P. BISHOP; et al,)
)
Defendants-Appellees.)
ON APPEAL FROM THE UNITED STATES : |
DISTRICT COURT FOR THE EASTERN |
DISTRICT OF KENTUCKY-LEXINGTON DIVISION
COMES THE PLAINTIFF-APPELLANT, James G.
Akers (hereinafter “ Akers”), without counsel in_ strict
accordance with Title 28 U.S.C. § 1654 and, pursuant to 6 CIR.
R. 27(g) & 6 CIR. R.45(b), respectively, moves this Honorable
Court to reconsider Its “ORDER” denying the filing of Akers’
“PETITION FOR EN BANC DETERMINATION’ as served and
filed on May 19, 2003. In support thereof, Akers asserts as
follows:
LEGAL ARGUMENT
1. On May 19, 2003, Akers timely served and filed his
“PETITION FOR EN BANC DETERMINATION” in strict
accordance with Title 28 U.S.C. 1654, FRAP 26(a) & (c), 6 CIR.
1.0.P. 35(b), FRAP 40(a)(1) & (2), 6 CIR. 1.0.P. 40(a) at lines 5
through 9, respectively.
63
2. Of paramount importance herein, and that which
Akers relies upon, is the specific language contained within
FRAP 26(a) & (c), and FRAP 40(a)(1), respectively, i.e., as
follows:
FRAP 26. COMPUTING AND EXTENDING TIME
(a) Computing Time. The following rules apply
in computing any period of time specified in these
rules or in any local rule, court order, or applicable
statute:
(1) Exclude the day of the act. event, or default
that begins the period.
(2) Include the last day of the period unless it is
a Saturday, Sunday, [or] legal holiday... (emphasis and
clarification added throughout)
(c) Additional Time After Service. When a
party is required or permitted to
act within a prescribed period after the Paper is served
on that party, 3 calendar days are added to the
prescribed period unless the paper is delivered on the
date of service stated in the proof of service. (emphasis
added)
FRAP 40. PETITION FOR PANEL REHEARING
(a) Time To File; Contents; Answer; Action by
the Court if Granted.
(1) Time. Unless the time is shortened or
extended by local rule, a petition for rehearing may be
filed within 14 days after entry of judgement.
(emphasis added)
3. The “court order” affirming the “JUDGEMENT” as
entered by Judge Jennifer B. Coffman, United States District
64
Court for the Eastern District of Kentucky-Lexington Division
[Exhibit 02-6235-04 hereto] was entered in this Court until May
2, 2003 [see Exhibit 02-6235-25 hereto]; Akers’ responsive
“PETITION FOR EN BANC DETERMINATION” was served
and filed on May 19, 2003 [see Exhibit 02-6235-24 hereto],
seventeen days thereafter; Akers’ “PETITION FOR EN BANC
DETERMINATION” was clearly timely filed; and the Court is
clearly mistaken in the denial of its timely filing.
4. Moreover, Akers has thoroughly researched the
Federal Rules of Civil Procedure, Federal Rules of Appellate
Procedure, Sixth Circuit Rules, Sixth Circuit 1.0.P.’s, and Local
Rules for the Sixth Circuit and can find absolutely nothing
which contradicts, overrides, or in any way conflicts those
provisions cited within hereinabove 42. If, however, such a
conflicting rule exists and can be provided, Akers will be more
than willing to accept the Court's decision to deny the filing of
his “PETITION FOR EN BANC DETERMINATION” and
appropriately proceed witha Petition for Writ of Certiorari with
the United States Supreme Court.
CONCLUSION
(5) It is obvious from the history of the instant case that
the United States District Court for the Eastern District of
Kentucky, Sixth Circuit Court of Appeals, the Clerks thereof,
and/or the staff of the Clerks thereof, are either unfamiliar with
the provisions of Title 28 U.S.C. 1654 or just, simply, refuse to
accept those provisions. Whichever the case may be, the
language of that statute - as enacted by the United States
Congress - reads as follows:
“TITLE 28 U.S.C. § 1654. In all courts of the
United States, the parties may
plead and conduct their own cases personally or by
counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.”
(emphasis added) [see also, Exhibit 02-6235-11, Joint
Appendix, page 494 thereof]
DSR ia chin a ere
65
There appears to be no room for misinterpretation of, nor
opposition to, this statute and Akers is determined that - one
way or another - it shall be enforced with respect this case.
WHEREFORE, the Plaintiff-Appellant, James G. Akers,
without counsel in strict accordance with Title 28 U.S.C. § 1654,
prays of this Court to: (A) “RESCIND” Its “ORDER” denying
the filing of Akers’ “PETITION FOR EN BANC
DETERMINATION” as “untimely”; (B) “RESCIND” the
mandate prematurely issued by the Court on June 2, 2003; (C)
“STAY” the mandate in this case until final disposition of Akers’
Petition for Writ of Certiorari with the United States Supreme
Court; (D) restore the instant case on the docket as an active
appeal; & (E) direct that the instant appeal accordingly proceed
in strict accordance with the protocol set forth within 6 CIR. R.
35(b)
Respectfully submitted,
JAMES G. AKERS, Plaintiff-Appellant
POST OFFICE BOX 3648
BRENTWOOD, TENNESSEE 37024
TELEPHONE: 615/834-2843
FACSIMILE: 615/831-9307
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.