Appendix — Akers v. Bishop
Supreme Court brief2003
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INDEX TO APPENDIX CONTENTS
EXHIBIT DESCRIPTION PAGE
02-6235-04 “JUDGEMENT” as entered by Judge
Jennifer B. Coffman, U. S. District Court
for Eastern District of Kentucky-Lexington
EFEVIRIORY, ORG TF Cicsvvinviccconsssenesessisiansnravinsanvsnses 18
02-6235-23. “ORDER” pursuant to opinion of JJ. CLAY
and GIBBONS; CLELAND sitting by
designation, affirming Exhibit 02-6235-04
hereinabove, entered 05/02/03.........cccccccseeeees 22
96 .
CERTIFICATE OF SERVICE
COMES THE PLAINTIFF-APPELLANT, James G.
Akers, without counsel in strict accordance with Title 28 U.S.C. |
§ 1654, and certifies that I have on this, the 5" day of June, 2003,
served two (2) true and complete copies of the foregoing if
“ AMENDED PETITION FOR EN BANC DETERMINATION”
upon each opposing party, via “UNITED STATES MAIL-FIRST
CLASS”, postage pre-paid, and in that manner as follows:
| (Listing of served Parties and /or their respective
| Counsel-of-Record are omitted from instant Petition
for Writ of Certiorari for the purposes of economy &
handling by Court. See official record for listings.)
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
POST OFFICE BOX 3648
BRENTWOOD, TENNESSEE 37024
[END OF DOCUMENT]
97
Case Number: 02-6235
IN THE
Gnited States Court of Appeals
for the Sixth Circuit
JAMES G. AKERS,
Plaintiff-Appellant,
V.
CAROLYN P. BISHOP, et al,
Defendants-A ppellees.
On Appeal from the United States District Court for
the Eastern District of Kentucky-Lexington Division
FINAL REPLY BRIEF FOR PLAINTIFF-APPELLANT
This document was prepared by:
James G. Akers, Plaintiff-Appellant
Post Office Box 3648
rentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
98
TABLE OF CONTENTS
Page
Table of Comtent........ncscvsssssasssservssosessesssensonscanennssnncnsennennnonorensneees (i)
Table of Authorities..............ssscsssssesssssensesseneenseneensensnnsennnscneressseees (i)
Constitutional Provisions & Statutes.......--.-srrersersrrerserserersererres (ii)
Citation of Official Opinions & Order........--sssersersseressrer tener (ii)
Parties to the Proceeding........--sssssssssecrsrsesssenennensenenennensensesesseees (iii)
Beater CACO. .oxnvovsovsnuvovesnvonsovsnnseontonsevenvenoonsonvenvonsnsnsavensenerenceunensene r=” 1
Counter-statement of the Case.......-ssssssesssessesensersensenennenent terre 7
Counter-statement Of Facts..........ssssssscssersssesrnssnnennssnnennsnnnsenseee eee 8
Argumentt(S)....--ssssccosssssessssssnnssssnnnnnnennnnnnnnnnnnnsngs 14
Ct Nea a senesnesnvonsceneanssntusesveresicninmernoramericeeisenseserswensentsnnentneny 15
Certificate of Compliannce.......sssssssecsecssssseseersensensenennennneneteee App. 1
Renewed Request for Oral Argumentts.......-+----srrsssrrrrers App. 2
Amended Designation of Appendix Contentt........eseeseeee App. 3
Certificate Of SerVvice........ssscssssssrsssssenesesensensennennennennsenssenere App. 6
TABLE OF AUTHORITIES
Page
Rule 32(a)(7)(B)(ii), Federal Rules
of Appellate Procedure........--sssssersssssrreere App.1, App. 2
Rule 32(a)(7)(C), Federal Rules of Appellate Procedure........ss++++ 3
Rule 34(a)(2), Federal Rules of Appellate Procedure......... App. 2
Rule 34(a), Rules of the Sixth Circuiit.........eccceseeeeeeenenereesess App. 2
Abbate v. United States, 359 U.S. S.Ct. 666,
672-673, 3 L.EG.2d.72.....secsssevsssssreerssenscsseessenscnscenennennneenenses 11
Abney v. United States, 431 US 651, 97 SCt, 52
LE (2d) 651 (1977) ---coosssssssessssssssesoennnnnnnnsenssssssennnneeeeeee tee 11
Bartkus v. Illinois, 359 US. 121, 151-155, 79 S.Ct. 676,
3 Fick. 2h CBA. -.cescvevvesovesvcenssavesnsonsesuonncenvonnsanornonnvoensennensenee 11
Ciucci v. Illinois, 356 U.S. 571, 573, 78 S.Ct. 839,
BAD, 2 L.Ed.2d 983.......zsecosservssenssernvessnecsnssnnnecrsessnnecnnnsresseee® 11
Collins v. Chandler Unified School Dist., C.A.9 (Ariz.)
1981, 644 F.2d 759, cert. denied 102 S.Ct. 322,
454 U.S. 863, 70 L.Ed. 2d 163......-sscsseseersessensensersensenrensensste 5
Cruz v. Beto, 405 U.S. 319 (1972). ---rssssssessersersseseerssenssenennsereeeee ee 2
Dennis v. Chang, C.A.9 (Hawaii) 1980, 611 F.2d 1302......--eeesee0 5
DeSilva v. DiLeonardi, 181 F.3d 865......+--+-sssseesersseseennennssnn eee 3
a eee
Donaldson v. O'Connor, N.D.Fla 1978, 454 F.Supp. 311... )
Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033,
BR, BU his SU ANE BI crserieeesiesniniiginislieinienntenetsieiesmdainneietiisaitin 11
Ex parte Lange, 16 Wall. 165, 22 £.0HE. BF b...siscsnusecncsereessrineesstannsns 10
Green v. United States, 355 U.S. 184, 191-193,
4B UAL. ZG, 20a, GAT 5 bi AOE BP Peres eisessnsesinevesinsivens 10
Johnson v. Summer, N.D. Miss.1980, 488 F.Supp. 83.......... cscs 5
(i)
Menna v. New York, 423 U.S. 61, 96 S.Ct. 241,
EMER A RTL F i iaicceniecsasicvhermnniabnsdennian acetetiedadubiniduiieieiail 11
North Carolina v. Pearce, 89 S.Ct. 2089 (1969)... cseseescsreeeeeeeeeens 10
People v. Henderson, 60 Cal. 2d 482, 497,
35 Rptr. 77, 86, 386 P.2d 677, 686 (1963)..........sceceeseeeees 10
Roberts v. United States, 320 U.S. 264, 276, 64 S.Ct. 113,
BOG Se Reels We cinisctecssanseevsiunbeheiinaianiaaumcasaeal 10
United States v. Benz, 282 U.S. 304,51S.Ct. 113, 75 L.Ed. 354......11
U.S. v. Casciano, 927 F.Supp. 54 N.D.N.Y., (1996)... cseeeeeeeees 12
United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773,
FF A ET tichitnecinshsichescuintnnatiniahdeaiaeatiaanitebainiats 10
United States v. Tateo, 377 U.S. 463, 475, 84 S.Ct. 1587,
Pa: FA Cie Gc ichiscictheiiinieialade banana 11
CONSTITUTIONAL PROVISIONS & STATUTES
Page
Fifth Amendment, United States Constitution................. 10,11,12
Eleventh Amendment, United States Constitution............00.....00 4
Fourteenth Amendment, United States Constitution............ 11,12
BERR BSE Fe tetssovanasicetiniinnstecestauiobandiiasmaindiaianlia i:me
SEER BRL. & Fa a cirtecsimivicisocniannininnionennints 15, App. 1, App. 3
eR ae Oe Cs 0 tintentincscceenioin ly ae wee
FS Ae Ss 0 nite ecient 1
SR Se UR I Aisicheridinuetnieninaieeniaa 1, 2,8
| Es a es ities nntitinniinneemnnionnicinmmeaiiiaiahaa 8
| Kentucky Revised Statute 500.050(2)........c:scsssssssssssssssessssssseesesens 10
Kentucky Revised Statute 500.060.0000... cccsescescesetseeeseseeseeees 12
100
Kentucky Revised Statute 508.040.........ssssssssrsssrnsesssssssnssssnnrerenss 10
Kentucky Revised Statute 514.030........:ssssssssssssernsesssssssnesseneennnsee 8
CITATION OF OFFICIAL OPINIONS & ORDERS
Page
“MEMORANDUM OPINION AND ORDER,
DISMISSING’” entered September 25, 2002,
in U-S. District Court for the Eastern District
of Kentucky, at Lexington, in support of dismissal
of Case No. 5:02cv0162 in its CNtirety ........-eseerereererersereees 6
nn cn eee a Gms ee EE Oh ED TE AD AD DE EP ED AD AS Se ee AS
PARTIES TO THE PROCEEDING
PLAINTIFF-APPELLANT:
(a) James G. Akers, pro se,
Post Office Box 3648
Brentwood, Tennessee 37024-3648
Telephone: (615)834-2843
DEFENDANTS-APPELLEES:
(a) Carolyn P. Bishop;
Lead counsel-of-record: Leslie Rosenbaum, Esquire
Rosenbaum & Rosenbaum, P.S.C.
201 West Short Street, Suite 300
Lexington, Kentucky 40507
Telephone: (859)259-1321
(b) Doris Fleming;
Lead counsel-of-record: Douglas L. Hoots, Esquire
Landrum & Shouse, LLP
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
(c) Allen I. Rushing; &
101
(i) John J. Vaughan, M.D.;
Lead counsel-of-record: William W Allen, Esquire
201 West Short Street
Lexington, Kentucky 40507-1269
Telephone: (859)252-9000
(e) Todd M. Layne; &
(f) Donald Shannon;
Lead counsel-of-record: Guy R. Colson, Esquire
Fowler, Measle & Bell, LLP
300 West Vine Street, Suite 600
Lexington, Kentucky 40507-1660
Telephone: (859)255-2424
(g) Jerry L. Kelly;
Lead counsel-of-record: Augustus S. Herbert, Esquire
Middleton Reutlinger
2500 Brown/ Williamson Tower sl
Louisville, Kentucky 40202
Telephone: (502)584-1135
(j) Thomas L. Clark;
(0) Lou A. Red Corn;
(r) Rebecca M.. Overstreet;
(s) Cindy G. Schwartz;
(u) Todd D. Ferguson; &
(w) Pamela R. Goodwine;
Lead counsel-of-record: D. Brent Irvin, Asst. Atty. Gen.!
Commonwealth of Kentucky
700 Capitol Avenue, Suite 118
Frankfort, Kentucky 40601
Telephone: (502)696-5653
(k) Katherine H. Witt;
Lead counsel-of-record: Bennett E. Bayer, Esquire
Landrum & Shouse
102
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
(m) Pamela Miller; &
(n) LFG Does 1 through 60;7
Lead counsel-of-record: Leslie P. Vose, Esquire
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
(t) Earnest W. Williams;
Lead counsel-of-record: Patrick W. Michael, Esquire |
Woodward, Hobson & Fulton, LLP
2500 National City Tower
Louisville, Kentucky 40202
Telephone: (502)581-8000
(d) CBT Does 1 - 40 [known only as a group of “ persons”
at Central Bank & Trust Company, Inc., Lexington, Kentucky];
(h) SCC Does 1 - 50 [known only as a group of “persons” at
Southland Christian Church of Lexington, Inc., Nicholasville,
Kentucky]; (1) FCS Does 1 - 30 [known only as a group of
“persons” at the Fayette County (Kentucky) Sheriff's Office,
Lexington, Kentucky]; (p) CAO Does 1 - 20 [known only as that
group of “persons” at the Commonwealth’s Attorney's Office
for Kentucky's Twenty-second Judicial District, Lexington,
Kentucky]; & (q) FCC Does 1 - 10 [known only as a group of
individual “persons” at the Office of the Fayette (Kentucky)
Circuit Court Clerk, Lexington, Kentucky] as yet unidentified.
———
| The Commonwealth of Kentucky has not been named as a party hereto.
2 the L.F.U.C.G. was not originally named as a party hereto, but will be
added due to voluntary entry herein.
103
INTRODUCTION
“Wrongfully imprisoned’ wife beaters are not a
protected class under § 1985.” [D. Brent Irvin, Asst.
Atty. Gen., Commonwealth of Kentucky, 01/07/ 2003]
That single statement, made by Kentucky Assistant
Attorney D. Brent Irvin at page 31, lines 7 & 8 of his
“APPELLEES’ BRIEF” on be
Thomas Clark, Rebecca Overs
Red Corn, Todd Ferguson,
01/09/2003], more than any other made throughout the entire
of Akers’ “CIVIL ACTION PURSUANT TO: TITLE 18 U.S.C. §
1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42 US.C § 1985(3)”
as filed in United States District Court for the Middle Tennessee
District-Nashville Division on November 21, 2000 [Case No
3:00ev1142 therein] and its underlying criminal actions within
the Courts of Kentucky, epitomizes Kentucky’s theories and
attitudes toward “domestic violence”. In other words, in
Kentucky, once a man is even so much as accused of “domestic
violence”, he has automatica lly and instantaneously forfeited all
rights, privileges, and immunities otherwise secured by the
United States Constitution.
Akers has never suggested that his two (2) fraudulent
imprisonments were cognizable under Title 42 U.S.C. § 1985 but,
rather, that such were “ov i
“chain conspiracies” detailed within Akers’ “PETITION FOR
WRIT OF CERTIORARI’ filed and served on April 24, 2002
[Exhibit 02-6235-11, Joint Appendix, viz, “COUNT ONE”
104
“wife beaters” are entitled to the very same (a) equal protection
under the law; (b) guarantees against “double jeopardy”,
“abuse of process”, and fraudulent imprisonment; & (c) rights
to “due process” under the United States Constitution as are
child molesters, rapists, murderers, and even hooligan judges,
prosecutors, and/or attorneys general of a state. [see Cruz v.
Beto, 405 US. 319 (1972), ie., “Federal courts sit not to
supervise prisons, but to enforce the constitutional rights of all
‘persons ’, which include prisoners” (emphasis added)}.
Each of the Defendants-Appellees have, at one time or
another, complained about the “voluminous” nature of Akers’
Complaint. Bennett E. Bayer, counsel for Defendant-Appellee
Witt, even refers to it as “a devilish document to comprehend”
[D.E. #6 of 01/21/ 2003, page 3, lines 1 & 2]. Notwithstanding,
however, Bayer acknowledges that “Ibjeginning at the bottom
of page 19, Akers distills the entire complaint into a summary of
the counts and the ‘actors’ who are subject to each count” [id.,
page 10, {[2, lines 1 & 2]. Bayer, as does all other counsel for the
respective defendants-appellees, fails to acknowledge that those
said counts specifically reference the factual allegations within
preceding portions of the complaint in_great detail, and
specifically references corresponding portions of Akers’
therewith and contemporaneously-filed “MEMORANDUM &
MEMORANDUM OF LAW” - additionally referencing the
specific Constitutional, Statutory, and Common Law provisions
which have been violated. Bayer further acknowledges, in
detail, at page 11, { 3, of his brief, the specific “Claim(s) for
Relief” against Witt.
Bayer’s arguments, like those of all other defense
counsels, simply “do not compute”. Moreover, with all due
respect, it_is this case which is “devilish” and/or
“voluminous”. Akers’ “CIVIL ACTION PURSUANT TO:
TITLE 18 U.S.C. § 1964(c); TITLE 42 US.C. § 1983; & TITLE 42
U.S.C. § 1985(3)” and “MEMORANDUM & MEMORANDUM
OF LAW” (hereinafter “ Akers’ Complaint”) are merely reflective
of that fact - not a contribution to that fact.
not a contrive’.
-2-
105
Just as the Defendants-Appellees have correctly pointed
out, Akers’ Complaint, as filed, is a total of 134-pages in length.
However, it must be understood that there are at least sixteen
(16) defendants who have been specifically named therein. Not
even considering the verbiage which is specifically allocable to
the potentially two hundred ten (210) Does who have yet to be
identified due to foreclosure of discovery by the District Court,
this equates to an average of only 8 3/8 pages per defendant.
By any recognizable standard, this is not a daunting volume for
any defendant to answer. Nonetheless, today (more than two
years subsequent to service and filing), not even a single
Defendant-Appellee has attempted to file an answer to Akers’
Complaint and the reason is quite obvious. Not even a single
defendant can deny even a single averment without subjecting
themselves to yet further sanctions and/or penalties under
Federal Law and their only options are to either: (a) “Admit”
the factual allegations against them - triggering a “Summary
Judgement” in favor of Akers; (b) claim “insufficient knowledge
with respect to” those factual allegations - triggering either
appropriate discovery or, in most instances, sanctions and/or
criminal penalties under Federal Law; or (c) “Deny” the factual
allegations against them - almost certainly triggering a Federal
cause for “Obstruction of Justice”. In short, the Defendants-
Appellees are “between a rock and hard place” and their herein
strategies of deploying all the confusion, delay, and
“technicalities” they can muster are no more than a reflection of
their untenable predicament.
In an attempt to have Akers’ “BRIEF FOR
APPELLANT”, as timely served and filed on November 14,
2000, “STRICKEN”, many of the Defendant-Appellees argued
that Akers’ had attempted to circumvent the limitations
imposed by F.R.A.P. 32(a)(7)(C) by “incorporating by reference”
some of his pleadings in the Courts below. Cited, inter alia,
was the case of DeSilva v. DiLeonardi, 181 F.3d 865. However,
the only proper application of that case herein is that, just like
the DeSilvas, these Defendants-Appellees are “ now are out of
arguments” [id., {*868}].
3.
106
First, itis necessary to address the” APPELLEES’ BRIEF”
[D.E. of 01/09 /03], filed and served January 7, 2003, by
Kentucky Assistant Attorney General D. Brent Irvin, on behalf
of Defendants-Appellees Thomas Clark, Rebecca Overstreet,
Pamela Goodwine, Lou A. Red Corn, Todd Ferguson, and
Cindy Schwartz, 1.e., as follows:
- (a) Primarily because of the provisions of the
Eleventh Amendment to the United States Constitution,
the Commonwealth of Kentucky has not been named
as a party to the within civil action. Otherwise, it would
have been a “sitting duck” for liabilities in view of the
role of its Governor, Attorney General, and both Fayette
District & Circuit Courts in this overall matter,
(b) Secondarily, Akers has absolutely no
intention or wish to obtain monetary relief from the
Kentucky state treasury. Not only would that be nearly
-- impossible in view of controlling case law, but it would,
as well, be unreasonable to hold those innocent
taxpayers of the entire state of Kentucky accountable for
the unlawful acts of corrupt officials within only two (2)
counties, i.e., Fayette and Franklin. Akers seeks redress
against only the individual “persons” named in his
complaint - not the entire Commonwealth of Kentucky;
(c) Akers has requested, from the very outset of
this case, that the Kentucky Attorney General's office —
either tender an “express waiver of Eleventh
Amendment immunities” or cease to file pleadings
herein. Clearly, Irvin and those Defendants-Appellees
he purports to represent should not be permitted to have
“the best of both worlds” in protecting the Kentucky
state treasury by asserting immunities pursuant to the
Eleventh Amendment while, at the same time,
expending those same funds in defense of Defendants
who have committed criminal and/or otherwise
unlawful acts in theirindividual private...
ale at wa,
107
..capacities. [see, e.g., Collins v. Chandler Unified
School Dist., C.A.9 (Ariz.) 1981, 644 F.2d 759, certiorari
denied 102 S.Ct. 322, 454 U.S. 863, 70 L.Ed. 2d 163, i.e.,
“This section [42 U.S.C. § 1983] is broad and unequivocal
and must _be liberally construed to achieve
congressional purpose of encouraging compliance with
and _ enforcement of civil rights laws” (emphasis &
clarification added); Dennis v. Chang, C.A.9 (Hawaii)
1980, 611 F.2d 1302, i.e., “This section [42 U.S.C. § 1983]
must be liberally construed to achieve congressional
purpose to encourage compliance with and
enforcement of civil rights laws’(emphasis &
clarification added); Donaldson v. O’Connor, N.D.Fla.
1978, 454 F.Supp. 311, ie., “This section [42 U.S.C. §
1983] is to be construed to fulfill congressional purpose
of encouraging private litigation to enforce civil rights”
(emphasis & clarification added); & Johnson v. Summer,
N.D. Miss.1980, 488 F.Supp. 83, i.e., “This section [42
U.S.C. § 1983], providing for attorney fees in civil cases,
is to be broadly and liberally construed to achieve its
intended purpose to compensate counsel who
represents prevailing litigants on civil rights claims and
to encourage individuals to seek judicial relief,
particularly those who might not otherwise attempt to
vindicate their rights, and this is particularly true
where individual is faced with opposition from state,
with entire resources of state government supporting
litigation” (emphasis & clarification added)];
| (d) To whatever extent, as Irvin argues, that
Akers “waived” any arguments, rights, and/or
privileges within his “AMENDED BRIEF FOR
APPELLANT” as served and filed December 5, 2003, and
to which Akers would otherwise be lawfully entitled,
those same arguments, rights, and/or privileges are
hereby renewed, re-asserted, and reiterated herein, in
their entirety; &
108
(e) Notwithstanding, however, lest this
Honorable Court or any of the Defendants misconstrue
Akers’ objections and opposition to the filing of any
pleadings in this case by Mr. Irvin as either a concession
or acceptance of any validity thereof, Akers will discuss,
infra, some of the most egregious assertions by Mr.
Irvin.
Secondly, it would seem only prudent to address the
“Jeter” filed on behalf of Defendant-Appellee Carolyn P. Bishop
(hereinafter “Bishop) on 12/13/03, i.e., as follows:
(a) Bishop has “chosen not to file an appellee's
brief” - purportedly because she “chooses to rely on” the
“sound and well reasoned” “opinion and order of
District Judge Jennifer Coffman” ;
(b) It comes as no surprise that Bishop would do
so, especially inasmuch as that “opinion and order”
virtually parallels Bishop’s “RE-NOTICE AND
RENEWAL OF DEFENDANT CAROLYN P. BISHOP’S
MOTION TO DISMISS” as filed in United States District
Court for the Eastern District of Kentucky on 09/17/02.
To whatever extent that ex parte communication has
occurred, Akers cannot say. The similarities, however,
are simply too striking to ignore; &
(c) Akers has, nonetheless, extensively addressed
all arguments presented by Bishop in her said “RE-
NOTICE AND RENEWAL OF DEFENDANT
CAROLYN P. BISHOP’S MOTION TO DISMISS” in his
“RESPONSE _& OBJECTIONS TO: ‘RE-NOTICE AND
RENEWAL OF DEFENDANT CAROLYN P. BISHOP'S
MOTION TO DISMISS” as served and filed in United
States District Court for the Eastern District of Kentucky
[see Exhibit 02-6235-22, Joint Appendix at pages 832-
873]. By virtue thereof, Akers has also addressed
extensively the District Court's instant “JUDGEMENT”
and accompanying “MEMORANDUM OPINION AND
ORDER, DISMISSING” Akers’ entire case.
,
109
COUNTER-STATEMENT OF THE CASE
Regardless of the amount of effort which the Defendants-
Appellees are willing to expend and any credibility they may be
able to falsely project by virtue of their sheer numbers, the
within case revolves around those issues succinctly presented in
Akers’ “STATEMENT PURSUANT TO F.R.A.P. 28(a)(6) & (7),
“AMENDED BRIEF FOR APPELLANT”, served on December
5, 2003.
The Defendants-Appellants appear to be of the belief that
if enough of them present the _very same frivolous arguments
- enough times - citing the very same misapprehended and/or
inapplicable “authorities” in support - that their arguments
will somehow, magically, acquire some degree of merit. The
following are but a few of their such arguments:
Kentucky Assistant Attorney General D. Brent Irvin
asserts as follows:
“After years of physically and mentally abusing
his former wife, and enraged by resulting criminal
convictions, the appellant James Akers, decided to abuse
her yet again - and anyone else remotely connected to
the criminal cases - by filing harassing, vindictive, and
frivolous civil rights suits against them” [Irvin's
“Appellees’ Brief”, D.E. of 01/09/03, page 2, 92, lines 1-
4];
Defendant-Appellee Katherine H. Witt follows suit as
follows:
“Regardless of anything else involved in his
complaint, it is essentially in response to a criminal
complaint brought by his ex-wife, for having assaulted
and stalked the woman for years.” (Brief of Appellee
Katherine Witt, D.E. #6 of 01/21/2003, page 2, § 3, lines
2 - 4, emphasis added)];
110
Defendant-Appellee Doris Fleming furthers as follows:
“In 1994, Bishop sought an emergency protective
order from the Appellant in the Fayette District Court in
the Commonwealth of Kentucky resulting from
Appellant's threats and domestic problems between
Appellant and Bishop” [D.E. #1 of 01 /17/2003, page 2,
q 2, lines 1 - 3]. “Appellant continued to harass Bishop
and he was eventually indicted for assaulting and
stalking Bishop” [id., page 2, § 2, line3 - page 3, lines 1
& 2].
The simple truth is that, except for fraudulent testimony
of Defendant-A ppellee Bishop, who has obviously either become
a pathological liar or has been sufficiently “brain-washed” by
her...
_hereinco-Defendants-Appellees to the point that she no longer
recognizes the truth, there is no evidence whatsoever to
support such outrageous conclusions; there are no medical
records or law enforcement agency records to support such
conclusions; and the testimony of even Bishop’s very own sons
contradicted any such conclusions. Moreover, Bishop has
already admitted that she and her “accessories” violated
Kentucky’s own K.RS. 514.030 by removing and destroying
physical evidence which would have conclusively shown her
testimony to be fraudulent.
As if destruction of Akers’ marriage, family, home, and
two (2) successful businesses - all for no purpose other than to
secure and perpetuate their own ambitions - were not enough,
these Defendants-A ppellees find itnecessary to continue to drag
Akers’ name and reputation” through the mud”, clearly because
they refuse to accept responsibilities for their own acts.
2 ee
111
COUNTER-STATEMENT OF FACTS
The facts underlying the within case are as set forth, in
detail, within Akers Complaint and as recapitulated at pages 8-
12 of Akers’ “AMENDED BRIEF FOR APPELLANT” filed
herein on December 5, 2003. Again, not even a single
Defendant-Appellee has attempted to controvert even a single
averment as contained within Akers’ “CIVIL ACTION
PURSUANT TO: TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. §
1983; & TITLE 42 U.S.C. § 1985(3)”° inasmuch as as virtually all
such averments are mechanically-recorded on audiotapes
and/or videotapes and the...
> Once again, Defendant Carolyn P. Bishop has essentially admitted having
committed the predicate acts of “theft by unlawful taking or disposition (over
$300.00)” & “tampering with physical evidence”, both being felonies under
Kentucky Law and, therefore, violations of Title 18 U.S.C. § 1964(c);
Defendant Jerry L. Kelly has essentially admitted having committed the
predicate act of “forgery in the second degree”, a felony under Kentucky Law
and, therefore, a violation of Title 18 U.S.C. § 1964(c) if coupled with an
additional such “predicate act”; and Defendants Pamela Miller & Katherine
Witt have essentially admitted the fundamental elements of “conspiracy”, in
violation of Title 42 U.S.C. § 1985(2) & (3). [See Akers’ allegations with respect
thereto within Akers’ Complaint, Exhibit 02-6235, Joint Appendix at 4 9142(c)
& (d), 144(a), & 128, respectivelv]
Defendants-Appellees cannot deny the factual allegations
against them without subjecting themselves to still further
sanctions and/or penalties under Federal Law. The merits of
Akers’s herein case just, simply, can not be challenged.
Defendant Doris Fleming fraudulently alleges:
(a) “Many if the Defendants (including Doris
Fleming...) were named in Appellant's 1999 civil rights
action” [D.E. #1 of 01/17/2003, page 4, § 2, lines 1 & 2].
“Doris Fleming was a witness on behalf of Appellant's
112
ex-wife in the underlying divorce/domestic abuse
action. Essentially, Appellant named Ms. Fleming as a
party to this action because she was an unfavorable
witness against his interests in the divorce/ domestic
abuse case” [id., page 4, § 2, lines 5 - 9];
(b) “ Akers bases his claims on the 2000 Kentucky
Court of Appeals decision reversing his assault
conviction” [id., page 4, § 3, lines 2 - 4]. “That same
court decision affirmed the 1998 stalking conviction
rendered by the same proceeding” [id., page 4, 4 3, lines
4-5]; &
(c) “All individuals who testified against Akers
in the Fayette Circuit Court actions ..have been named
as Defendants/ Appellees and Akers alleges that those
individuals acted as conspirators to violate his civil
rights” [id., page 5, {| 3, lines 1-3}.
(A) Doris Fleming was not named as a defendant in
Case No. 5:99cv0173 and, even had she been, that case was
dismissed “without prejudice” pursuant only to the Prison
Litigation Reform Act and that would have had no bearing,
whatsoever, upon the instant case. Moreover, Doris Fleming
was not a witness at a single one of Akers’ “divorce/ domestic
violence” proceedings, nor is she a “party to this action because
she was an unfavorable witness” to any such action. The simple
truth is that Defendant-Appellee Doris Fleming is so named in
the instant case for no reason other than those delineated
within Akers’ Complaint and Memorandum;
(B) Akers neither bases his herein claims “on the 2000
Kentucky Court of Appeals decision reversing his assault
conviction”, nor does he need to [see, €.g., Akers’ “ AMENDED
BRIEF FOR APPELLANT”, entered herein on 12/17/02, at FN7,
page 16 thereof, i.e., as follows:
“The underlying ‘criminal’ cases originate from
a series of events leading to what, at its worst, could be
~ legally construed as nothing more than a misdemeanor
‘assault under extreme emotional disturbance’ [see. e.g.,
Case No. 5:02cv0162, D.E. #29, {| 7(b) & FN7...
113
...thereto] i.e., ‘Even under Kentucky law (particularly K.R.S.
508.040), Akers' so-called act of ‘assault’ of Bishop was
punishable for only a maximum fine of $250 and/or 90-day
sentence in the county jail [see ‘OFFENSE, PENALTY AND
BAIL SCHEDULE’, APPENDIX A, Kentucky Rules of Court,
1995, West Publishing Company, November 1, 1994] absent
unconstitutional ‘ex post facto’ enhancement under the disguise
of implementing, evolutionizing, and/or ‘testing the mettle’ of
Kentucky's newly-enacted/ enhanced ‘Domestic Violence &
Abuse’ laws and, only then, if proceedings had been initiated
within the one (1) year statutory period required by K.R.S.
500.050(2).” [see also, e.g., Akers’ “Motion for Reconsideration”,
as filed in the Sixth Circuit of Appeals on December 10, 2001,
FN8, page 12 thereof]. Moreover, there can be absolutely no
question that Akers had been - at least twice - already fully-
punished for the events of May 4" and/or 5" , 1994 [see, e.g.,
/,E-34 with FN44 thereto, E-37, E-38 with FN49 thru FN53
thereto, E-51 with FN81 thereto, and E-81 with FN76 thru FN82
thereto of Akers’ Memorandum, Exhibit 02-6235-11, Joint
Appendix at pages 538-593, 9 {J E-34 w/FN44 thereto, E-37, E-38
w/FN49 thru FN53 thereto, E-51 w/FN81 thereto, & E-81
w/FN76 thru FN82 thereto]. Not even considering the elements
of malice, abuse of process, and fraud, inter alia, Akers’
convictions for any charge related to May 4/5", 1994, was
barred by either the statute of limitations and/or the Fifth
Amendment to the U.S. Constitution. Clearly, there was no
actionable ‘criminal’ basis for any manner of ‘assault’ charges
against Akers and therefore, there could have been no
jurisdiction.”
See also: North Carolina v. Pearce, 89 S.Ct. 2089 (1969),
ie., “’”... The theory of double jeopardy is that a person need
run the gantlet only once. The gantlet is the risk of range of
punishment which the State...imposes for that particular
conduct. He risks the maximum permissible punishment when
first tried. That risk having been faced once need not be faced
again. And the fact that he takes an appeal does not waive his
114
constitutional defense of former jeopardy to _a second
prosecution. Green v. United States, 355 U.S. 184, 191-193, 78
US.Ct. 221, 225, 227, 2 L.Ed. 2d 199. ...Itis argued that this case
is different because there were two different crimes with
different punishments for each one. That, however, is a matter
of semantics. * ‘It is immaterial to the basic purpose of the
constitutional provision against double jeopardy whether the
Legislature divides a crime into different degrees carrying
different punishments, or 728 allows the court or jury to fix
different punishments for the same crime’. People v. Henderson,
60 Cal. 2d 482, 497, 35 Rptr. 77, 86, 386 P.2d 677, 686 (1963)
(Traynor, J.) ...It was established at an early date that the Fifth
Amendment was designed to prevent an accused from
running the risk of ‘double punishment’. United States v.
Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 778, 15 L.Ed.2d 627. When
Madison introduced to the First Congress his draft of what
became the Double Jeopardy Clause, it read: “No person shall be
subject, except in cases of impeachment, to more than one
punishment or one trial for the same offense * * * (Emphasis
supplied) 1 Annals of Cong. 4 By forbidding that no person
shall be subject for the same offense to be twice put in jeopardy
of life or limb, [the safeguard of the Fifth Amendment against
double punishment] guarded against the repetition of history by
* * * punishing [a man] for an offense when he had already
suffered the punishment for it.’ Roberts v. United States, 320
US. 264, 276, 64 S.Ct. 113, 119, 88 L.Ed. 41, (Frankfurter, J.,
dissenting). ‘The inquiry, then, is into the meaning of ‘double’
or ‘multiple’ punishment. In Ex parte Lange, 18 Wall. 163, 21
L.Ed. 872, the petitioner...”*”...had already suffered...
..complete punishment for his crime and could not be
subjected to further sanction: ‘If there is anything settled in the
jurisprudence of England and America, it is that no man can be
twice lawfully punished for the same offence.’ And though
there have been some nice questions in the application of this
rule to cases in which the act charged was such as to come
115
within the definition of more than one statutory offence, there
has never been any doubt of its entire and complete protection
of the party when a second punishment is proposed in the same
court, on the same facts, for the same statutory offence.’ Id. at
168. ...[t was not until United States v. Benz, 282 U.S. 304, 51
S.Ct. 113, 75 L.Ed. 354, that the Court clarified its position.
... The general rule is that judgements, decrees and orders are
within the control of the court during the term in which they
were made. * * * The rule is not confined to civil cases, but
applies to criminal ”*' cases as well, provided that the punishment
not be augmented, Ex parte Lange, 18 Wall. 163, 167-174, 21 L.Ed.
872 [additional citations omitted]. In the present case the power
of the court was exercised to mitigate the punishment, not to
increase it, and thus brought within the limitation. * * * ...~° The
ban on double jeopardy has its deep roots in the history of
occidental jurisprudence. ‘Fear and abhorrence of government
power to try people twice for the same conduct is one of the
oldest ideas found in western civilization.’ Bartkus v. Illinois,
359 U.S. 121, 151-155, 79 S.Ct. 676, 3 L.Ed.2d 684 (Black, J.,
dissenting). And its purposes are several. It prevents the State
from using the criminal process as an instrument of
harassment to wear the accused out by a multitude of cases
with accumulated trials. Abbate v. United States, 359 U.S. S.Ct.
666, 672-673, 3 L.Ed.2d, 72: ...The vice *” of this procedure lies
in relitagating the same evidence before two differentjuries with
a man’s innocence or guilt at stake. ... Harrasment of an accused
by successive prosecutions...so as to afford the prosecution a
more favorable opportunity to convict are examples when
jeopardy attaches. Downum v. United States, 372 US. 734, 736,
83 S.Ct. 1033, 1034, 10 L.Ed.2d 100. ...’This case presents an
instance of the prosecution being allowed to harrass the
accused with repeated trials and convictions on the same
evidence, untii it achieves its desired result...’ Ciucci v. I llinois,
356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983. ...Manifestly
it is not the danger of jeopardy of being a second time found
guilty. It is the punishment that would legally follow the
second conviction which is the real danger guarded against by
the Constitution. ...It is doubtless true that the State has an
interest in adjusting sentences upward ”” whenit discovers new
116
evidence warranting that result. But the individual has an
interest in remaining free of double punishment. And in
weighing those interests against one another, the Constitution
has decided the matter in favor of the individual. See United
States v. Tateo, 377 US. 463, 475, 84 S.Ct. 1587, 1594, 12 L.Ed.2d,
448” [see, Akers’ Memorandum, pages 484-487, FN4, emphasis
added]; and
Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 LEd(2d)
195 (1975), ie., “Where the State is precluded by the United
States Constitution from haling a defendant into court on a
charge, federal law requires that conviction to be set aside even
if the conviction was entered pursuant to a counseled plea of
guilty” [id., emphasis added];
Abney v. United States, 431 US 651, 97 SCt, 52 LEd(2d)
651 (1977), i.e., “Double jeopardy clause protects an individual -
against more than being subjected to double punishments; it is
a guarantee against being twice put to trial for the same
offense. U.S.C.A. Const. Amend. 5” [id., emphasis added]; and
Fourteenth Amendment, United States Constitution
[Akers’ Memorandum at pages 10 & 11], i.e., “No State shall
make or enforce any-law which shall abridge the privileges or
immunities of citizens of the United States; ...nor deny any
person within its jurisdiction equal protection of the laws.”
[id., emphasis added]
Further, it is immaterial whether that “sarne court
decision affirmed the 1998 stalking conviction” [see Akers’
“MENDED BRIEF FOR APPELLANT”, entered herein on
12/17/02, at FN7, page 16 thereof, i.e., as follows:
“ Akers’ conviction’ First-Degree Stalking’ is even
more easily defeated, i.e., (1) there were no charges
whatsoever against Akers at the time he migrated back
to Tennessee on September 23, 1994 [Akers’
Memorandum, Exhibit 02-6235-11, Joint Appendix at
ee eS eee
117
pages 565 & 566, { E-51 with FN63]; (2) thereafter, Akers
did not voluntarily return to any jurisdiction within
Kentucky and there is no allegation to the contrary [id.
at pages 566 & 567, 9 E-54 with FN65]; (3) Akers never
made even a single threat of ‘serious physical injury or
death’ to Bishop or anyone else - only ‘threats’ of a civil
law suit - while within the State of Tennessee [id. at
pages 567-580, §/§] E-56 thru E-64 with FN66 thru FN69
thereto, FN72, & FN75]; (4) Akers’ acts were lawful
within the State of Tennessee [id., pages 572-573, YE-60
with FN69 thereto]; (5) Akers acts were not cognizable
under Kentucky Law [id., pages 511-512, ‘K.R.S. 500.060
Territorial applicability’ with FN32 thereto; & (6) in
essence, Akers was convicted for violating a ‘protective
order’ with which he had not been served and was not
even aware of, in clear violation of the Fourteenth
Amendment to the U.S. Constitution [id., page 574-575,
{| E-65 & E-66 w/FN70 thereto]. Clearly, there was no
actionable ‘criminal’ basis for any manner of ‘stalking’
charges against Akers and therefore, there could have
been no jurisdiction.” See also: U.S. v. Casciano, 927
F.Supp. 54 N.D.N.Y. 1996, i.e., “11. ...For purposes of
crossing a state line with intent to engage in conduct in
violation of protective order, if court issuing order has
failed to obtain personal jurisdiction over defendant by
service of process, then order was invalid and
prosecution cannot survive. 18 U.S.C.A. § 2262(A)(1);
12. Due process clause requires that notice be reasonably
calculated, under all circumstances, to apprise interested
parties of penalty of an action and afford them an
opportunity to present their objections. U.S.C.A. Const.
Amend. 5.” (emphasis added); & “Due process of law”
defined , id., page 484].
(C) Not “all individuals who testified against Akers in
the Fayette Circuit Court actions ...have been named as
Defendants/ Appellees” herein - only those who have violated
the Federal Laws as detaiied within Akers’ Complaint and
Memorandum. Bishop's brother (Wendell Patrick), sister-in-law
118
(Mildred Patrick), co-workers at Central Bank (Jeff Jacobs &
Sheila Parks, etc.), and even Bishop’s own mentor during the
divorce (Jane Preston), even though adversarial to Akers...
attempted to be truthful - at least insofar as permitted by
Defendants-Appellees Overstreet and Red Corn. Akers has no
evidence that would indicate that any of these witnesses were,
in any way, involved in those unlawful acts detailed within
Akers Complaint and Memorandum.
Kentucky Assistant Attorney General D. Brent Irvin
erroneously surmises:
(a) “Evidently fearing that the federal judges in
Kentucky would be familiar with his prior history of
filing frivolous civil rights and habeas corpus cases,
Akers tried his luck in a different court” [Irvin's
“ Appellees’ Brief”, D.E. of 01/09/03, pp 7, {| 2, lines 1-3];
(b) “The thrust of Akers complaint is the same as
before; that his former wife (the crime victim)
Bishop...” [id., page 7, {| 3, lines 1 & 2, emph. added]; &
(c) “Although Akers admits striking his wife,
Akers contends that the resulting domestic relations
assault and stalking charges were a type of extortion
designed to secure his former wife a greater share of the
marital property. ...He alleges his own divorce attorney
and_ Bishop’s divorce attorney engaged in
“racketeering” by performing legal services on behalf of
their clients” [id., page 8, lines 10-17, emph. added]
(A) Akers had no fear that “the federal judges in
Kentucky would be familiar with his prior history of filing
[allegedly] frivolous civil rights and habeas corpus cases”. Nor
did Akers resort to “tr[ying] his luck ina different court”. Akers
considers Irvin's allegation of “forum shopping” to be just as
offensive - if not just as libelous - as Irvin’s characterization of
119 -
Akers as a “wife beater”. The simple truth is that: (1) if not for
the fact that Akers had been essentially kidnaped from the State
of Tennessee by Kentucky authorities and fraudulently
imprisoned within Kentucky, this case would have been filed in
United States District Court for the Middle District of Tennessee
long before May of 1999. Irvin’s argument only discloses his
ignorance of the manner in which mail is forwarded and
received by a Kentucky prisoner - both being essential
considerations in the initiation and maintenance of any legal
action.
(B) Irvin and many of his colleagues are obviously “hell
bent” on characterizing Bishop as the “victim” of Akers -
obviously because that premise invokes all the “political”
aspects of “domestic violence” in lieu of the “legal” aspects - a
strategy which has worked wonders...
...for them in the Kentucky Court of Appeals and U.S. District
Courts. Nevertheless, the facts of this case make it crystal clear
that just the opposite is true, i.e.,
“The defendants...allege Bishop to be the ‘victim’
of Akers * ...and propound their ‘paraphrased’ version
of Judge Wilhoit's ‘MEMORANDUM OPINION AND
ORDER’ in which they ‘gloss over’ Judge Wilhoit's
findings that, in essence, Akers did ‘not clearly set forth
the jurisdictional basis’ and that the Court was without
jurisdiction until such time as Akers’ convictions had
been ‘declared invalid’. Both deficiencies have
subsequently been remedied [see Akers’ Complaint
(generally) and Akers Memorandum at § 119, page 169,
together with FN134]. Inasmuch as the Defendants Witt,
Layne, and Vaughan assert essentially the same
arguments in their motions and memorandums [Docket
Entry #42 at | 3; Docket Entry # 43 at [Argument] VII;
& Docket Entry # 35 at ¥ BJ, Akers' ‘response’ is the
same.” [see, e.g., Exhibit 02-6235-113 (Memorandum),
Joint Appendix, page 692]
Defendants-Appellees Layne, Shannon & Kell
fraudulently assert:
“ Akers based all claims on his disagreement with
his convictions in Kentucky state court for stalking and
assault” [Layne’s & Shannon's “Brief for Appellees”,
D.E. of 01/13/2003, page 1, 94, lines 3 & 4. See also,
Kelly’s “Brief for Appellee”, D.E. of 12/18/2002, Page 1,
44, lines 3 & 4].
The Constitution and Laws of the United States
Constitution also “disagree” with Akers’ said convictions and,
more particularly, with the manner in which they were obtained,
i.e., abuse of process, want of equal protection under the law,
want of due process, lack of jurisdiction, fraud, and obstruction
of justice, inter alia.
ARGUMENTS
[See Akers’ “AMENDED BRIEF FOR APPELLANT”,
entered herein on 12/17/02]
4 It is a matter of opinion who has been“ victimized” by whom. Ultimately,
that issue may be one that only a fair and impartial jury, in a fair and
impartial courtroom setting, and presided over by a fair and impartial
Judge can decide and is, indeed, an issue inextricably intertwined with the
relief Akers seeks in this civil action. Perhaps Bishop has been “ victimized”
in the matters raised in the Kentucky Courts. The real question, however, is
by whom - by Akers, by herself, or by her co-defendants in this case? On the
other hand, there can be no question whatsoever whether Akers has been
“victimized” [see Akers' Complaint and Memorandum (generally)] or by
whom.” [see, e.g., “EXHIBIT 02-6235-13", Joint Appendix at pages 692-693,
§2(D)(i) & (ii)]. 7
-14-
CONCLUSION
The herein Defendants-Appellees jointly praise the
District Court’s “JUDGEMENT” and accompanying
“MEMORANDUM OPINION AND ORDER, DISMISSING” as
“thorough and well-reasoned” and, indeed, it was thoroughly
wrong. Whether the same was “well-reasoned” depends upon
whether one’s objective is that of “substantial justice” or
“obstruction of justice”.
With all due consideration of the foregoing, there should
be little wonder why it is that, in modern day America, so many
innocent men are imprisoned - if not awaiting execution on
“death row” - while the “guilty” remain free. America’s
criminal justice system is in dire need of a major overhaul, and
the within case has proven to be as good to start with as any
likely to be found.
This Honorable United States Court of Appeals for the
Sixth Circuit is asked to do no more and no less than each of Its
justices are sworn to do, i.e. to “preserve and protect the
Constitution and Laws of the United States of America”.
WHEREFORE, Plaintiff-Appellant, James G. Akers,
without counsel in strict accordance with Title 28 U.S.C. § 1654,
_ again asks and prays of this Honorable Court to “GRANT” all
the relief prayed for in his “AMENDED BRIEF FOR
APPELLANT”, entered herein on 12/17/02.
Respectfully submitted,
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
-15-
122
CERTIFICATION OF COMPLIANCE
PLAINTIFF-APPELLANT, James G. Akers, without
counsel in strict accordance with Title 28 U.S.C. § 1654, hereby
certifies that the foregoing “EINAL REPLY BRIEF FOR
PLAINTIFF-APPELLANT” fully complies with F.R.A.P.
32(a)(7)(B) (ii) inasmuch as, according to the “WORD PERFECT
9” program used, the said “FINAL REPLY BRIEF FOR
PLAINTIFF- APPELLANT” contains exactly 30,151 characters;
5,580 words; 210 sentences, 465 lines; 75 paragraphs; & 15 pages
(excluding those items listed in 6 Cir. R. 28(b) and/or Rule
32(a)(7)(B) (iii) of the Federal Rules of Appellate Procedure).
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/ 834-2843
Facsimile: 615/831-9307
a
App. 1
ES ee
123
RENEWED REQUEST FOR ORAL ARGUMENTS
The Defendants-Appellees have filed “Briefs” herein
which total 214-pages according to Court records. It would be
all but impossible to address them all within the limitations
imposed upon this “FINAL REPLY BRIEF FOR PLAINTIFF-
APPELLANT” by F.R.A.P. 32(a)(7)(B)(1i).
Akers believes that, within his “FINAL BRIEF FOR
PLAINTIFF-APPELLANT” entered herein on 12/17/02 and
hereinabove “FINAL REPLY BRIEF FOR PLAINTIFF-
APPELLANT”, all significant issues presented by the District
Court and Defendants-Appellees have been adequately
addressed. Akers further believes that he has provided this
Honorable Court with compelling arguments in support of
remand.
If, however, the Court finds any remaining contentions
of the District Court and/or any of the Defendants-Appellees to
be conclusively meritorious, Akers must respectfully request
that “oral arguments” be granted pursuant to F.R.A.P. 34(a)(2)
and 6 Cir. R. 34(a), in order that his “due process rights” to be
heard will be properly respected.
Respectfully submitted,
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
App. 2
124
FINAL DESIGNATION OF APPENDIX CONTENTS
PLAINTIFF-APPELLANT, James G. Akers, without
counsel in strict accordance with Title 28 U.S.C. § 1654 in
conjunction with 6 Cir. R. 28(d) and/or 6 Cir. R. 30(b), hereby
files and serves as an addendum to the foregoing “ FINAL BRIEF
FOR APPELLANT” designation of the parts of the record
included in the “Joint Appendix” as follows:
EXHIBIT
02-6235-01
02-6235-02
02-6235-03
02-6235-04
02-6235-05
02-6235-06
VOLUME ONE
DESCRIPTION PAGE
Certified “Civil Docket” (Case No.
3:000V1142), as Of 03 /29/02.......eeseseeseerereerenereesees 1
Akers’ Complaint.......ccscccsesesesesessseenensenenenssenensens 15
“ORDER” and contemporaneous
“MEMORANDUM” transferring case
to Eastern District of Kentucky as entered
by Hon. Robert L. Echols, Chief Judge for
US. District Court for Middle Tennessee
District-Nashville Division, on 09/18/2001......149
“JUDGEMENT” as entered by Judge
Jennifer B. Coffman, U. S. District Court
for Eastern District of Kentucky-Lexington
Division, 071. 09/25 /02.......:cssceseseseseeeeeesenenneneees 157
“MEMORANDUM OPINION AND ORDER,
DISMISSING’” as entered by Judge Jennifer
B. Coffman, U.S. District Court for Eastern —
District of Kentucky-Lexington Division, on
09 /25/02......n-scessssssersssesescneensscersnessensneenenennessensees 160
“Motion to Dismiss or Transfer Venue” filed
on behalf of Defendants Thomas L. Clark,
Rebecca M. Overstreet, Pamela R. Goodwine,
02-6235-07
02-6235-08
02-6235-09
EXHIBIT
02-6235-10
02-6235-11
125
Lou A. Red Corn, Cindy G. Schwartz, &
Todd D. Ferguson (D.E. #38, Case No.
3:00cv1142), entered 12/12/01 ...ccccccccccssescecece. 194
“Memorandum in Support of the Motion
of Defendant, John J. Vaughan, M.D., to
Dismiss the Complaint or Transfer the
Action” (D.E. #52, Case No 3:00cv1142),
eT |) 204
“Motion of Defendant Ernest Williams
to Dismiss” and “Memorandum of Law
in Support of Defendant Williams’ Motion
to Dismiss” ,(D.E. #55, Case No 3:00cv1 142),
OI EF FOE assisies. ssssnsscererssevesesenssevaseorascees 227
“Motion to Dismiss”, filed by Defendant
Allen I. Rushing, (D.E. #71, Case No.
3:00cv1142), entered 01/30/01 ....c.eccccessecccssescoeees 232
App. 3
VOLUME TWO
DESCRIPTION PAGE
“NOTICE OF APPEAL to UNITED STATES
COURT OF APPEALS for the 6" CIRCUIT’:
and transmittal letter tendering “Cashier's
Check No. 1336703” for “filing fees” &
“docketing fees” therewith, as filed and
IE BI Tf BID occicssevsesesvesavnsscvemsnsovsenovesoases 236
Entire contents of Akers’ “Petition for Writ
of Certiorari” as filed with the United States
Supreme Court and served upon all parties
SIA UEP MU rvisicencionisnnsinsinepcowssscebsrssasimerescensoses, 240
126
VOLUME THREE
~ EXHIBIT DESCRIPTION PAGE
02-6235-12 “Civil Docket” (Case No. 5:02cv0162),
AS Of 11/18 /02.........sssseseeeseneseeesnenseenenenenensneenneenees 667
02-6235-13 Plaintiff James G, Akers’ “” Motion to Strike;
and Motion to Stay Proceedings Pending
Determination of ‘Venue’ by United States
Supreme Court” (D.E. #5, Case No. 5:02cv
0162), & “Memorandum & Memorandum
Law [in support]”, entered 05/13/02..........+++ 676
02-6235-14 Plaintiff James G. Akers’ “Motion to
Strike ‘Defendant Jerry L. Kelly’s Motion
to Dismiss’”; and “Renewed Motion to
Strike; and Motion to Stay Proceedings
Pending Determination of ‘Venue’ by
United States Supreme Court” (D.E. #7,
Case No. 5:02cv0162), & “Memorandum &
Memorandum of Law [in support thereof],
entered 06/19/02.......sececeseseseesseenneneereenensnnenenns 719
02-6235-15 Plaintiff James G. Akers’ “Demand for
‘Judgement by Default’; and Motion for
Partial Summary Judgement” (D.E. #12,
Case No. 5:02cv0162), entered 06/19/02........... 745
02-6235-16 Plaintiff Akers’ “Motion to Strike [Defendant,
Doris Fleming, Motion to Dismiss]; and
Motion for Sanctions Pursuant to F.R.C.P.
11(c)(1)(A) & 11(¢)(2)” (D.E. #25, Case No.
5:02.cv0162), entered 08/02/02......:s-rererreeseers 760
02-6235-17 _— Plaintiff James G. Akers’ “Motion to Strike
[Defendant Defendant Witt’s Response
Motion to Plaintiff's Motion for Summary
Judgement]; and Motion for Sanctions
rt ttt—S—<—~—~S~—~*™
02-6235-18
02-6235-19
02-6235-20
02-6235-21
02-6235-22
127
Pursuant to F.R.C.P. 11(c)(1)(A) & 11(c)(2)”
(D.E. #28, Case No. 5:02 cv0162),
OURO POF Cv vscnevesevcasssnrinincirsentsinnsausiaysseerca 768
Plaintiff James G. Akers’ “Response &
Objections to: Defendants’ Clark, Red
Corn, Overstreet Schwartz, Ferguson, &
Goodwine] “Motion to Stay Discovery,
Suspend Time to Answer Complaint Until
Dispositive Motions Have Been Addressed,
or Alternatively to Dismiss for Failure to
Comply with Rule 8...” (D.E. #29, Case No.
9:02 cv0162), entered 08/08/02......ccccccccccsescseesee. 778
Plaintiff James G. Akers’ “Motion to Strike
[Defendant Pamela Miller’s ‘Re-notice &
Renewal of Motion to Dismiss’”, (D.E. #32,
Case No. 5:02.cv0162), entered 08/14 5 798
Plaintiff James G. Akers’ “Response &
Objections to: ‘Re-notice and Renewal
of Defendants’, John J. Vaughan, M.D.,
and Allen I. Rushing to Dismiss Complaint;
and Motions to Stay Discover and Suspend
Time to Answer Complaint’” (D.E. #33, Case
No. 5:02 cv0162), entered 08/14/02......cccccccsse- 813
Defendant Ernest W. Williams’ “Motion
for Status Conference” (D.E. #34, Case No.
9:02. cv0162), entered 08/15/02....cccccccccsessecsesseee.
Plaintiff James G. 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),
entered 07 10/04/02... .ceececececssssscceseceoseceeeeess. 832
128
02-6235-23
“Memorandum Opinion and Order”
dismissing, “without prejudice”, Civil
Action No. 99-173 in United States District
Court for the Eastern District of Kentucky,
at Lexington, and as entered therein on
05/17/1999 (Over the “OBJECT IONS” of
Plaintiff James G. Akers on bases, inter alia,
that the same is irrelevant and inadmissible
with respect to instant Case Nos. 3:00cv1142,
5:02 cv0162, & COA6-02-6235)....ssessereersersrsseneens 874
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
129
CERTIFICATE OF SERVICE
COMES THE PLAINTIFF-APPELLANT, James G.
Akers, without counsel in strict accordance with Title 28 U.S.C.
§ 1654, and certifies that I have on this, the 28" day of February,
2003, served two (2) true copies of the foregoing “FINAL REPLY
BRIEF FOR PLAINTIFF-APPELLANT” upon respective lead
counsel for each and every named Defendant-Appellee, via
“UNITED STATES MAIL-FIRST CLASS”, postage pre-paid, and
in that manner as follows:
(Listing of served Parties and/or their respective
Counsel-of-Record are omitted from instant Petition
for Writ of Certiorari for the purposes of economy &
handling by Court. See official record for listings.)
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
POST OFFICE BOX 3648
BRENTWOOD, TENNESSEE 37024
[END OF DOCUMENT]
130
Case Number: 02-6235 —
IN THE
Bnited States Court of Appeals
for the Sixth Circuit
JAMES G. AKERS,
Plaintiff-Appellant,
Vv.
CAROLYN P. BISHOP, et al,
Defendants-Appellees.
On Appeal from the United States District Court for
the Eastern District of Kentucky-Lexington Division
——
FINAL BRIEF FOR PLAINTIFF-APPELLANT
This document was prepared by:
James G. Akers, Plain tiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/ 834-2843
Facsimile: 615/831-9307
TABLE OF CONTENTS
Page
aa caccctsisconas-itaesinctiaiiheiniintlethesidanabsienincionmasinbisiebiamasiel (i)
SI incites snceencalersiasieniesiidinsieinclintchgehdnbinennsanionanicolul (ii)
Constitutional Provisions & Statutes............c.cccsccsseeseessenceseaseees (iii)
Citation of Official Opinions & OrdefS.............cccccsesseserseseeeeeseee (iv)
Se OE CIE FI eeceeesasesnmenssntessvenesocemmesisensteuveinvasnonenees (v)
Statement of Jurisdiction (Generally).............c:cce0ee presencia 1
Statement of Jurisdiction (U.S. District Court)..........c.ccccseeeeeeeee 1
Statement of Jurisdiction (U.S. Court of Appealls)..............0c0000 2
Statement Pursuant to F.R.A.P. 28(a)(4)(C) & (D)............ feeetienion 6
Statement Pursuant to F.R.A.P. 28(a)(5)........cccccscsscssscssssesesessesseneas 7
Statement Pursuant to F.R.A.P. 28(a)(6) & (7)......cccsssssssesessseseeseees
I i iicnieiiccineiiovniisinionninanisitdiiiannsteaviumnnianiiii 13
[ - The “ends of justice” require re-transfer of
venue back to United States District Court
for Middle Tennessee District-Nashville............. 13
If - District Court for Eastern District of Kentucky,
at Lexington, abused Its discretion by refusing
to “GRANT” Akers’ “Demand for Judgement
by Default” & “Motion for Partial Summary
UTIIIIT, sexsinncssucindhsissenannnncieslgsiniiniaaniosanicsanaciainnininenic
III - District Court for Eastern District of Kentucky,
at Lexington, erred by applying Heck v.
Humphrey and the Rooker-Feldman Doctrine
as grounds for dismissal of the entire case
for “failure to state a claim” ..............cceseseeseseeeeee 16
IV - District Court for Eastern District of Kentucky,
at Lexington, erred by applying various
immunities as grounds for dismissal of the
CIO CB a seiciecensecenisnssitesintcrnvesecoseninarevevestinscavseenson 19
V_ - District Court for Eastern District of Kentucky,
at Lexington, erred by Its application of the
doctrines of “collateral estoppel” / res judicata
as grounds for dismissal of case for “failure
RINT seicsbechistiiarnihgticeavisissnniincensicheasaneian 23
VI - District Court for Eastern District of Kentucky,
at Lexington, abused Its discretion by refusing
to properly apply the required “standard of
review” with respect to Defendants’
“Motion(s) to Dismiss” .......-.-s-ssccseeessesesersensenersess 25
VII - District Court for Eastern District of Kentucky,
at Lexington, abused Its discretion in the
denial of Akers’ fundamental rights to trial
by ajury as the ultimate “ finder of fact”..........-. 28
VIIl- Alternatively, the herein case should be
held “in abeyance” pending filing and
disposition of Akers’ “Petition for Writ
of Prohibition” seeking to set aside his
convictions as unconstitutional........---+sssssssee 29
COnCHUSION. .0:0.00cececveescsnenscsoeserneeveesnsvsosenosesecnnsoanenenenensasonsossewenswensenns 30
(i)
Certificate of Compliannce.........sssssssessersersrssrsensntensenensensesenens App. 1
Request for Oral Argument........----sssssssssssssssseeennnnseersnnes App. 2
Designation of Appendix COntenttS........cecceseereereereeneneeeeees App. 3
Certificate Of SErvice........c-ccecscssserssenenensersnsnsnenenenensecersnsneses® App. 6
TABLE OF AUTHORITIES
Rule 4, Federal Rules of Appellate Procedure.......... 2,5,6,7,8,12
Rule 8(b) & (d), Federal Rules of Appellate Procedure.........++++ 15
Rule 12(a)(1)(A), Federal Rules of Appellate Procedure..........++ 15
Rule 12(a)(4)(A), Federal Rules of Appellate Procedure....... 11,15
Rule 28(a), Federal Rules of Appellate Procedure....2, 5,6, 7,8, 12
Rule 34(a)(2), Federal Rules of Appellate Procedure......... App. 2
Rule 32(a)(7), Federal Rules of Appellate Procedure......... App. 2
Rule 32(a)(7)(C), Federal Rules of Appellate Procedure...8, App.1
Rule 32(a)(7)(B)(ii), Federal Rules of Appellate Procedure..App.1
Rule 38(a) & (b), Federal Rules of Civil Procedure.........--:ceeee++ 28
Rule 52(c), Federal Rules of Appellate Procedure......-.cseseeseeereees 15
Rule 54(c), Federal Rules of Appellate PrOCedure.......c-eeeeseeeeeeees 15
Rule 55(a) & (b)(2), Federal Rules of Appellate Procedure...11, 15
Rule 56(a) & (d), Federal Rules of Appellate Procedure........---.- 15
a
Rule 28(b), Rules of the Sixth Circuit.......c.ccccscssessseseseeees App. 1
Rule 28(d), Rules of the Sixth Circuit........cccccscssesessesecseeees App. 3
Rule 30(b), Rules of the Sixth Circuiit........ccccccccssessesseseeees App. 3
Rule 34(a), Rules of the Sixth Circuit........ccccccscsscssssesseseesee. App. 2
Abney v. United States, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)...5, 7
Armstrong v. McAlpin, 625 F.2d 433, C.A.N.Y. (1980)........0. 2,5
Azar v. Conley, 456 F.2d 1382, 1384 (6™ Cir. 1972)......ccccesseessecseeees 28
Boyce v. Alizaduh, 595 F.2d 948, 951-953 (4" Cir. 1979)........sesssees. 26
Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 1983).......cccessecseesseeseee 26
Charles v. Commonwealth, 321 SW (2d) 253 (Ky 1959).......c.ssecssee-0 18
Cleavenger v. Saxner, 474 U.S. 193; 106 S.Ct. 496, 501;
De RE OUT CP cr ersscvestsshtviletiomnsnvesueeiiaievidsiutessosieins 22
Clemence v. Clemence, 8 Kan.App.2d 377, 658 P.2d 368 (1983)......5
Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47,
69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)......2,5, 6, 7,12
Collins v. Chandler Unified School Dist., C.A.9 (Ariz.) 1981,
ioe cieiiinsiceiirhdaliiea iain i talc 5
Cooper v. Molko, D.C.Cal., 512 FR.Supp. 563 (1981).......ccccseccseesssee. 5
Conley Vv. Gibson, 355 U.S. 41, 45-46 (1957).....cccscscssssesesesscsesececeeees 26
Cruz v. Beto, 405 U.S. 319 (1972).......cccescscssecsssesscsesesessssessseeceseeeeeees 26
Dennis v. Chang, C.A.9 (Hawaii), 1980, 611 F.2d 1302......c.cecceeseee fe)
Doe v. County of Lake, Indiana, et al, 399 F.Supp. 553.........0...s00000 22
Donaldson v. O'Connor, N.D.Fla. 1978, 454 F.Supp. 311.......ccec.ssee- 5
Eades v. Sterlinski, 810 F.3d 723 (7 Cir. 1986).......cecsessessessessecseeses 22
Ex parte Virginia, 100 U.S. 339; 25 L.Ed. 676 2, Onna 22
(il)
Ex parte Young, 209 U.S. 123 (1908).......c.ccssssessesecsesessessesscsseesesceeees 27
Firestone Tire & Rubber Co. v. Risjord, 101 S.Ct. 669,
dn gL, _) | SR >, 7,12
Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 {i -, 27
Great Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944)........ 27
Haines v. Kerner, et al, 404 U.S. 519, 520;
ae es Pe ei iiririctinsidaseha disses ebencanoisnsiedinetamnsase: 26, 30
Johnson v. Summer, N.D.Miss.1980, 488 F. BE UP scanicicaiasassiscsnsases 5
Jones v. Bales, D.C.Ga. 58 F.R.D. 453.....cccccccecccsscsosesesecececeseeeoeeeeecce.. 5
134
Kennecott Copper Corp. v. State Tax Commission,
327 U.S. 573 (1946).....essececssseessseseesneesenensencnsensecenensesssenensess 27
Lucarell v. McNair, 453 F.2d 836, 838 (6™ Cir. 1972)... 28
Malone v. Colyer, 710 F.2d 258,260 (6th Cir. 19B3)......--c.c0crecesereeseee 26
McMillan v. Svetanoff, 793 F.2d 149, (5™ Cir. 1986)... 22
Monroe v. Pape, 365 U.S. 167 (1946).....----ssesseeesessessensensensnnsensensess 27
Moor v. County of Alameda, 411 U.S. 693 (1973)......scscesssesesereseneeees 27
Myers v. Anderson, 238 U.S. 368 (1915).....essssecseseeneenssesessesneenensenees 27
O’Shea v. Littleton, 414 U.S.488, 503; 94 S.Ct. 669;
38 L.Ed.2d 674 (1974).....scscsecessenssrensesnsnsenenenserensnsnsnsenensnsenes 22
PT United Can Co. v. Crown Cork & Seal Co.
138 F.3d 65, 71-72 (2d Cir. 1998)......sscesseseeeeessecetsesnenenenenss 5
Rauch v. Day and Night Manufacturing Corp.et al,
576 F.2d 697 (6™ Cir. 1976)......--sssesssssrsesensenensessesarenensnnenees 27
Reed v. Commonwealth, 248 SW (2d) 911 (Ky 1952)....--.ssseesssseseee 18
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).....sscssressseressseenseees 24
Roney v. Commonwealth, 695 SW (2d) 863 (Ky 1985)...-.---+eseereseeess 18
Schueuer v. Rhodes, 416 U.S. 232, 236, (1974).-.----sseeresreeeseess in,
Unites States v. Casciano, 927 F.Supp.; 54 N.D.N.Y. (1996).........-: 29
Westlake v. Williams, et al, 537 F.2d 857, 858 (6™ Cir. 1976)......-.-+: 28
Wiggins v. New Mexico State Supreme Court,
664 F.2d 812, 815 (10 Cir. 1981)........se:sesseeseseeneneeesesensnnes 26
Wilensky v. Fields, Fla., 267 S0.2d 1, 5..-.+s----svssseersnseesessrseeseesee 17, 30
Willis v. Commonwealth, 502 SW (2d) 60 (Ky 1973)....----ssssseseesseees 18
CONSTITUTIONAL PROVISIONS & STATUTES
Page
Article I - § 9 [Cl.1], United States COmstitutiOn........cccccccceseeeeeeeeees 8
Article I- § 10 [Cl.1], United States Constitution. .....-..------ 8,17
Article III - § 2, United States Constitution...........---s-ssrerereers 8,19
Article IV - § 2, United States Comstitution..........s-sssrssererersersrseres 8
First Amendment, United States Constitution. .........-+-:-+s0 8,24
Fourth Amendment, United States Constitution...........0seeee 8,29
Fifth Amendment, United States Constitution..........+-+++- 8,16, 29
Sixth Amendment, United States Constitution..........-+--s0-+0 8,29
Seventh Amendment, United States Constitution. .........cccceeceeeees 28
Eighth Amendment, United States Constitution............:2--+++ 8,29
Thirteenth Amendment, United States Constitution............00+ 8
135
Fourteenth Amendment, United States Constitution........ 8,16,29
TITLE 18 U.S.C. § 1961, et SG..........ccsceccsccescessssesseseeees 10, 14, 20, 22
PE a rn cscscecorececcecvescecessoeeee. 10
(iii)
nnn scneeerescecerccnceneecesoee. 10
Bee Ns nc csescecscesevsercevecceseesorecnssoessesones 10
TITLE 18 U.S.C. § 1964(c)........ 1, 2,3,5, 8, 11, 12, 14, 15, 22, 25, 29
BBE Be i, I nc sccccsecceconcsecceccocecsorsecesescesees. | Be
| ee 2, 5, 6
TITLE 28 U.S.C. § 1654................ 3, 5, 30, App. 1, App. 3, App. 5
pepe 25k ot >. . Se 1, 2, 3,5, 8, 10, 11, 12, 14,
15, 20, 22, 24, 25, 26, 29
pipe SS t hom), . nae 10, 14, 19, 22, 24, 25
ee Oe a i ceeccecosscnovecocecocscecevecoeseesenseeseoeece, 11
TITLE 42 U.S.C. § 1985(3).............. 1, 2, 3,5, 8, 10, 11, 12, 14, 15, 29
Bee ee OP ON arses cccesvescccncsocscecsrescescessscecesoesesseeesses. 5
Kentucky Revised Statute 500.050(2)..........ccsceccsesssecsesssesseseseceseee 16
Kentucky Revised Statute 500.060...........c.ccccccsessessessessesssscseccoseoee. 16
Kentucky Revised Statute 508.010 .0.0........cccccssesssessessesssesssecseeseesee. 18
Kentucky Revised Statute 508.040..0..0.....ccccccescesssessessssssesseeseceseeses 16
CITATION OF OFFICIAL OPINIONS & ORDERS
Page
“ORDER?” entered inU. S. District Court for the Middle
Tennessee District on September 18, 2001 .........3, App. 3
“MEMORANDUM ’” entered in U. S. District Court
for the Middle Tennessee District on September
“ORDER” entered in U. S. Court of Appeals, Sixth
Circuit, dismissing [Case No. 01-6243] on
ne | Ee 5
“ORDER” entered inU. S. Court of Appeals, Sixth
Circuit, denying Akers’ “Petition for Stay of
Mandate” [Case No. 01-6243] on February 25, 2002......... 6
136
“ORDER’ entered in U. S. Supreme Court denying Akers’
“Petition for Writ of Certiorari” [Case No. 01-1619]
ON June 24, 2002........sceecereceerssssssssenenensnsenenessssnssssenenenenaneees 6
“JUDGEMENT” entered September 25, 2002, in U.S.
District Court for the Eastern District of Kentucky,
at Lexington, dismissing Case No. 5:02cv0162 in
1tS CTITUFELY ......eeeeeeseseseeseeeeeneeeneneeneneees 7,12, 14, 30, App. 3
“MEMORANDUM OPINION AND ORDER, DISMISSING"
entered September 25, 2002, in U. S. District Court
for the Eastern District of Kentucky, at Lexington,
in support of dismissal of Case No. 5:02cv0162 in
{tS CTILHFELY «0... eeeeeeeseesereenseeeeeneees 7, 12, 14, 23, 30, App. 3
PARTIES TO THE PROCEEDING
PLAINTIFF-APPELLANT:
(a) James G. Akers, pro se,
Post Office Box 3648
Brentwood, Tennessee 37024-3648
Telephone: (615)834-2843
DEFENDANTS-APPELLEES:
(a) Carolyn P. Bishop;
Lead counsel-of-record: Leslie Rosenbaum, Esquire
Rosenbaum & Rosenbaum, P.S.C.
201 West Short Street, Suite 300
Lexington, Kentucky 40507
Telephone: (859)259-1321
(b) Doris Fleming;
Lead counsel-of-record: Douglas L. Hoots, Esquire
Landrum & Shouse, LLP
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
137
(c) Allen I. Rushing; &
(i) John J. Vaughan, M.D.;
Lead counsel-of-record: William W. Allen, Esquire
201 West Short Street
Lexington, Kentucky 40507-1269
Telephone: (859)252-9000
(e) Todd M. Layne; &
(f) Donald Shannon;
Lead counsel-of-record: Guy R. Colson, Esquire
Fowler, Measle & Bell, LLP
300 West Vine Street, Suite 600
Lexington, Kentucky 40507-1660
Telephone: (859)255-2424
(g) Jerry L. Kelly;
Lead counsel-of-record: Augustus S. Herbert, Esquire
Middleton Reutlinger
2500 Brown/ Williamson Tower
Louisville, Kentucky 40202
Telephone: (502)584-1135
(j) Thomas L. Clark;
(0) Lou A. Red Corn;
(r) Rebecca M.. Overstreet;
(s) Cindy G. Schwartz;
(u) Todd D. Ferguson; &
(w) Pamela R. Goodwine;
Lead counsel-of-record: D. Brent Irvin, Asst. Atty. Gen.’
Commonwealth of Kentucky
700 Capitol Avenue, Suite 118
Frankfort, Kentucky 40601
Telephone: (502)696-5663
(k) Katherine H. Witt;
Lead counsel-of-record: Bennett E. Bayer, Esquire
138
Landrum & Shouse
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
(m) Pamela Miller; &
(n) LFG Does 1 through 60;
Lead counsel-of-record: Leslie P. Vose, Esquire
Landrum & Shou. 2
Post Office Box 951
Lexington, Kentucky 40588-0951
Telephone: (859)255-2424
ee eee ee ee ee
(t) Earnest W. Williams;
Lead counsel-of-record: Patrick W. Michael, Esquire
Woodward, Hobson & Fulton, LLP |
2500 National City Tower |
Louisville, Kentucky 40202 ;
Telephone: (502)581-8000
(d) CBT Does 1 through 40 [known only as a group of
“persons” at Central Bank & Trust Company, Inc., Lexington,
Kentucky]; (h) SCC Does 1 through 50 [known only as that
group of “persons” at Southland Christian Church of Lexington,
Inc., Nicholasville, Kentucky]; (1) FCS Does 1 through 30
[known only as a group of “persons” at the Fayette County
(Kentucky) Sheriff's Office, Lexington, Kentucky]; (p) CAO
Does 1 through 20 [known only as that group of “persons” at
the Commonwealth's Attorney's Office for Kentucky's Twenty-
second Judicial District, Lexington, Kentucky]; & (q) FCC Does
1 through 10 [known only as a group of individual “ persons” at
the Office of the Fayette (Kentucky) Circuit Court Clerk,
Lexington, Kentucky] all as yet unidentified due to foreclosure
of discovery by the District Court.
| The Commonwealth of Kentucky has not been named as a party hereto.
(vi)
————————————
139
STATEMENT OF JURISDICTION
(GENERALLY)
The civil case from which the within action arises
involves violations of Federal Law - some originating within
Kentucky and resulting in violations within Tennessee and,
conversely, some originating within Tennessee and resulting in
violations within Kentucky. Neither the State nor Federal
Courts within the states of Tennessee or Kentucky have both
personal jurisdiction over all the parties and subject matter
jurisdiction over all the issues. Therefore, the Federal Courts
have exclusive jurisdiction pursuant to the specific provisions of
TITLE 18 U.S.C. § 1964(c), TITLE 18 U.S.C. § 1965(b), TITLE 42
U.S.C. § 1983, & TITLE 42 U.S.C. § 1985(3)
STATEMENT OF JURISDICTION
(U. S. DISTRICT COURT)
The United States District Court for the Middle
Tennessee District-Nashville Division, had both jurisdiction and
venue to hear and adjudicate the herein civil action, and to
consider all matters with respect thereto, pursuant to the specific
provisions of TITLE 18 U.S.C. § 1964(c); TITLE 18 U.S.C. §
1965(b); TITLE 42 U.S.C. § 1983; & TITLE 42 U.S.C. § 1985(3),
respectively.
The facts establishing venue for the case within the
United States District for the Middle Tennessee District-
Nashville Division include, but are not limited to, factual
allegations that the herein Defendants-Appellees, while within
the Commonwealth of Kentucky, committed the criminal acts of
interstate extortion, interstate blackmail, interstate kidnaping
and/or fraudulent extradition, further interstate extortion,
further interstate blackmail, and interstate civil rights
intimidation, all of which originated within Kentucky and
resulted in the commission of those specific criminal acts a gainst
the Plaintiff-Appellant, James G. Akers, while said James G.
Akers was a lawful resident of and, at all times relevant thereto,
remained within the State of Tennessee. Those said “criminal
140
acts” and additional “overt acts” in the furtherance and
concealment thereof are (1) as detailed...
_.within Akers’ Complaint; (2) clearly rise to the level of R.ILC.O.
violations and Civil Rights violations/ conspiracies in clear and
distinct violation of the provisions of Title 18 U.S.C. § 1964(c);
Title 42 U.S.C. § 1983; and Title 42 U.S.C. § 1985(3), respectively;
and (3) have resulted in those injuries to said James G. Akers in
his person, property, and businesses, all of which are situated
within the Federal District of Middle Tennessee, at Nashville.
STATEMENT OF JURISDICTION
(U. S. COURT OF APPEALS)
United States Court of Appeals for the Sixth Circuit had
jurisdiction to hear and adjudicate Akers’ appeal docketed on
October 16, 2001, as Case No. 01-6243 therein , and to consider
all matters with respect thereto, pursuant to Rules 4 & 28(a) of
the Federal Rules of Appellate Procedure in conjunction with
the “Collateral Order Doctrine” as set forth in, e.g., Armstrong
v. McAlpin, 625 F.2d 433, C.A.N.Y. (1980), citing Cohen v.
Beneficial Loan Corp., 337 U.S. 541, 545-47, 69S.Ct. 1221, 1225-
26, 93 L.Ed. 1528 (1949) and TITLE 28 U.S.C. § 1292(a)(1), but
disclaimed Its jurisdiction pursuant to the legal theorems set out
in SongByrd v. Estate of Grossman, 253 F.2d 680, 683 (2"* Cir.),
cert. denied 531 U.S. 824 (2000); Lemon v. Druffel, 253 F.2d 680,
683 (6" Cir. 1958); F.D.LC. v. McGlamery, 74 F.3d 218, 222 (10"
Cir. 1996); & Middlebrooks v. Smith, 735 F.2d 431, 432 (11™ Cir.
1984), on January 24, 2002.
This United States Court of Appeals for the Sixth Circuit
now, once again, has jurisdiction to hear and adjudicate Akers’
appeal docketed as Case No. 02-6235 therein on October 17,
2002, and to consider all matters with respect thereto, pursuant
to Rules 4 & 28(a) of the Federal Rules of Appellate Procedure.
Additionally, Akers has properly preserved the issue as to
te Je
14]
whether this Honorable Court had jurisdiction with respect to
Akers’ previous appeal, docketed as Case No. 01-6243 herein on
October 16, 2001, pursuant to the “Collateral Order Doctrine”.
STATEMENT PURSUANT TO E.R.A.P. 28(a)(4)(C) & (D)
On November 21, 2000, the Plaintiff-Appellant, James G.
Akers (hereinafter “Akers”), without counsel in strict
accordance with Title 28 U.S.C. § 1654, filed his “CIV IL ACTION
PURSUANT TO: TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. §
1983; & TITLE 42 U.S.C. § 1985(3)” in United States District
Court for the Middle Tennessee District-Nashville Division
[Joint Appendix, Volume One, Exhibit 02-6235-02, page 15
thereof] together with Akers’ contemporaneous
“MEMORANDUM & MEMORANDUM OF LAW” [id., Volume
Two, Exhibit 02-6235-11, page 195] and contemporaneous
“APPENDIX/RELEVANT EXHIBITS” [Case No. 3:00cv1142,
D.E. #3, Volumes 1 & 2] in support thereof (herein “Akers
Complaint”; “Akers’ Memorandum”; & “ Akers’ Appendix”,
respectively). Jurisdiction was asserted pursuant to the
provisions of the Federal Statutes themselves; and venue was
asserted on the basis that “the prevailing acts” as alleged in
Akers’ Complaint had occurred within the Federal District of
Middle Tennessee. “Diversity of citizenship” of the parties was,
at most, a secondary consideration.
The factual allegations within Akers’ Complaint, when
coupled with those applicable Constitutional, Statutory, and
Common Laws of the United States of America and
“authorities” in support thereof as cited in Akers’
Memorandum, will speak for themselves. Not even a single
Defendant has attempted to controvert evena single averment
and, in fact, they can not do so without placing themselves in
peril of yet further sanctions and/or penalties under Federal
Law. The “merits” of Akers’ herein case are not even
disputable. 7
On September 18, 2001, the Honorable Robert L. Echols,
—_— oe ——- ——_— —_— - CG —— ——— ——
142
Chief Judge, U. S. District for the Middle Tennessee District-
Nashville Division, entered his “ORDER” and accompanying
“MEMORANDUM” [Joint Appendix, Volume One, Exhibit 02-
6235-03, page 149] denying the...
...Defendants’ various “Motion[s] to Dismiss” but granting
transfer of the case to U.S. District Court, Eastern District of
Kentucky.
It being apparent that the District Court either: (1) did
not read Akers’ pleadings in that Court; (2) did not understand
Akers’ pleadings in that Court; (3) did not afford due credibility
to Akers’ pleadings in that Court; (4) accepted the Defendants'’-
Appellees’ fraudulent renditions of the facts with respect
thereto; or (5) based Its ruling upon a combination of “all the
above”, Akers served and filed his first “Notice of Appeal” on
September 21, 2001, and paid the requisite filing fees on that
same date. The case was then docketed as Case No. 01-6243 in
the Sixth Circuit Court of Appeals on October 16, 2001.
Notwithstanding “Motion(s) to Dismiss” the appeal for
lack of jurisdiction to consider what they termed an
“interlocutory appeal” as filed on behalf of Defendants-
Appellees Jerry L. Kelly [Case No. 01-6243, D.E. of 10/24/ 01);
Carolyn P. Bishop [id., D.E. of 10/31/01]; Pamela R. Goodwine,
Todd D. Ferguson, Cindy G. Schwartz, Rebecca M. Overstreet,
Lou A. Red Corn, and Thomas D. Clark [id., D.E. of 11/13/01];
Katherine H. Witt [id., D.E. of 10/07/01]; & Doris Fleming [id.,
D.E. of 11/09/01]; and Akers timely “Responses and/or
Objections” thereto [id., D.E. of 11/01/01; D.E. of 11/09/01;
D.E. of 11/13/01; D.E. of 11/28/01; & D.E. of 11/28/01,
respectively], Akers timely served and filed his “ Brief for
Appellant” [see Joint Appendix, Volume Two, Exhibit 02-6235-
11, page 335] on November 12, 2001, in which he argued that:
I - VENUE PROPERLY [RESTED] WITH UNITED
STATES DISTRICT COURT FOR MIDDLE
TENNESSEE DISTRICT, AT NASHVILLE;
143
II - “ORDER” TRANSFERRING VENUE FOR CASE
TO EASTERN DISTRICT OF KENTUCKY [WAS]
“COLLATERAL TO MERITS” OF THE CASE;
lil - TRANSFER OF [THE] CASE TO UNITED
STATES DISTRICT COURT FOR [THE]
EASTERN DISTRICT OF KENTUCKY [WOULD]
RESULT IN IRREPARABLE DAMAGE TO
AKERS;
IV - ISSUES RESPECTING TRANSFER OF CASE TO
THE EASTERN DISTRICT OF KENTUCKY, AT
LEXINGTON, [WERE] “TOO IMPORTANT” TO
“BE DEFERRED UNTIL THE WHOLE CASE IS
ADJUDICATED”; &
V- THE“ENDS OF JUSTICE” REQUIRE[D] VENUE
TO REMAIN IN UNITED STATES DISTRICT
COURT FOR THE MIDDLE TENNESSEE
DISTRICT-NASHVILLE DIVISION.
In support of his contentions, Akers cited: F.R.A.P.
Rules 4 & 28(a); Title 28 U.S.C. § 1654; Title 28 U.S.C. §
1292(a)(1); Title 18 U.S.C. § 1964(c); Title 18 U.S.C. § 1965(b);
Title 42 U.S.C. § 1983; Title 42 U.S.C. § 1985(3); Title 42 U.S.C.
§ 1988(a); Abney v. United States, 97 S.Ct. 2034, 52 L.Ed.2d 651
(1977); Armstrong v. McAlpin, 625 F.2d 433, C.A.N.Y. (1980);
Clemence v. Clemence, 8 Kan.App.2d 377, 658 P.2d 368 (1983);
Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct.
1221, 1225-26, 93 L.Ed. 1528 (1949); Collins v. Chandler Unified
School Dist., C.A.9 (Ariz.) 1981, 644 F.2d 759; Cooper v. Molko,
D.C.Cal., 512 FR.Supp. 563 (1981); Dennis v. Chang, C.A.9
(Hawaii), 1980, 611 F.2d 1302; Donaldson v, O’Connor, N.D.Fla.
1978, 454 F.Supp. 311; Firestone Tire & Rubber Co. v. Risjord,
101 S.Ct. 669, 66 L.Ed.2d 571 (1981); Johnson v. Summer,
N.D.Miss.1980, 488 F.Supp. 83; Jones v. Bales, D.C.Ga. 58
F.R.D. 453, affirmed 480 F.3d (1972); & PT United Can Co. v.
144
Crown Cork & Seal Co.,138 F.3d 65, 71-72 (2d Cir. 1998), inter
alia.
Applying the Jegal theorems set out in SongByrd v.
Estate of Grossman, 253 F.2d 680, 683 (2™ Cir.), cert. denied 531
U.S. 824 (2000); Lemon v. Druffel, 253 F.2d 680, 683 (6™ Cir.
1958); F.D.I.C. v. McGlamery, 74 F.3d 218, 222 (10 Cir. 1996);
& Middlebrooks v. Smith, 735 F.2d 431, 432 (11" Cir. 1984), on
January 24, 2002, this Sixth Circuit Court of Appeals rejected
Akers’ arguments pursuant to the “Collateral Order Doctrine”
as set forth in, e.g., Armstrong v. McAlpin, 625 F.2d 433,
C.A.N.Y. (1980), citing Cohen v. Beneficial Loan Corp., 337 US.
541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) and
disclaimed Its jurisdiction to hear...
.and adjudicate Akers’ then appeal, and to consider all matters
with respect thereto, notwithstanding the specific language set
out within Title 28 U.S.C. § 1292(a)(1). [Case Mo. 01-6243,
01/24/02]. On February 13, 2002, Akers ten filed his
“Petition for Stay of Mandate” [Joint Appendix, Volume Two,
Exhibit 02-6235-11, page 280] pending the filing and disposition
of Akers planned “Petition for Writ of Certiorari” with the
United States Supreme Court [id., page 240] and that petition
was, as well, rejected by this Court on February 21, 2001 [Case
No. 01-6243, 02/21/02].
Pursuant to Rules 4 & 28(a) of the Federal Rules of
Appellate Procedure together with the “Collateral Order
Doctrine” as set out in, e.g., Cohen v. Beneficial Loan Corp.
337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949),
in which the United States Supreme Court held that “...certain
orders were immediately appealable (1) if they were collateral
to the merits; (2) if denial of an immediate appeal would result
in irreparable damage to the party seeking review; and (3) if the
issue raised was “too important” to.“be deferred until whole
case is adjudicated”, on April 24, 2002, Akers timely served and
filed his “Petition for Writ of Certiorari” with the United States
Supreme Court seeking reversal of this Honorable Court's
145
dismissal of Akers’ appeal. ;
On June 24, 2002, Akers’ said “Petition for Writ of
Certiorari” was “DENIED” by the United States Supreme Court
for no stated reasons and, then, on April 4, 2002, the case was re-
docketed as Case No. 5:02cv0162 within United States District
Court for the Eastern District of Kentucky-Lexington Division,
and assigned to District Judge Jennifer B. Coffman.
Following a lengthy repetition of those same arguments
in support of their respective “Motion(s) to Dismiss” and/or
“Motion(s) to Stay Discovery” {Case No. 9:02cv0162, D.E. Nos.
2,3, 6, 11, 14, 15, 19, 20, 23, & 40] and Akers’ timely “Responses
and/or Objections” and/or ‘Motion(s) to Strike” with respect
thereto [Case No. 5:02cv0162, D.E. Nos. 4, 5, 7, 14, (response to
D.E. #11, not entered due to error by Clerk), 28, 29, 32, 33, & 43,
respectively] as had been filed...
..in United States District Court for the Middle District of
Tennessee-Nashville Division [Case No. 3:00cv1142 therein], on
September 25, 2002, United States District Judge Jennifer B.
Coffman entered her “FINAL AND APPEALABLE”
“JUDGEMENT” dismissing, with prejudice, the entire action
including what she perceived to be any and all pendant state
claims, and accompanying contemporaneous
“MEMORANDUM OPINION AND ORDER, DISMISSING”
[Joint Appendix, Volume One, Exhibit 02-6235-04, page 157].
As a matter of right, on October 3, 2002, Akers served
and filed his “NOTICE OF APPEAL to UNITED STATES
COURT OF APPEALS for the SIXTH CIRCUIT” [id., Volume
Two, Exhibit 02-6235-05, page 236] and payed the requisite
“filing fees” and “docketing fees” therewith pursuant to Rules
4 & 28(a) of the Federal Rules of Appellate Procedure.
Following complaints from the various Opposing counsel
that Akers’ previous “BRIEF FOR APPELLANT” timely-filed on
November 14, 2002, was in substantial non-compliance with
Rules 28 and/or 32 of the Federal Rules of Appellate Procedure,
on December 5, 2002, Akers then filed and served his
146
“AMENDED BRIEF FOR APPELLANT” and contemporaneous
“MOTION FOR LEAVE TO FILE AMENDED BRIEF FOR
APPELLANT PURSUANT TO 6 CIR. R. 27(a)” pursuant to
Rules 4 & 28(a) of the Federal Rules of Appellate Procedure
together with previously-asserted arguments with respect to the
“Collateral Order Doctrine” set out in Cohen v. Beneficial Loan
Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528
(1949).
2 ‘ or
See particularly relevant excerpts therefrom as quoted within
“ARGUMENT V”, infra, page 23 & 24 hereof.
> See also: Firestone Tire & Rubber Co. v. Risjord, 101 S.Ct. 669, 66 L.Ed.2d
571 (1981), i.e., “Because the litigation from which the instant petition arises
had not reached final judgement at the time the notice of appeal was filed, the
order...is appealable under § 1291 only if it falls within the Cohen doctrine.”;
& Abney v. United States, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), Akers
Memorandum at FN4, i.e., “Of course, Cohen's collateral-order exception is
equally applicable in both civil and criminal proceedings.”
STATEMENT PURSUANT TO E.R.A.P. 28(a)(5)
[See ‘TABLE OF CONTENTS”, “Argument(s) I thru
VIII’, supra, page (i) hereof]
STATEMENT PURSUANT TO E.R.A.P. 28(a)(6) & (7)
The following are edited excerpts’ from Akers’ “CIVIL
ACTION PURSUANT TO: TITLE 18 U.S.C. § 1964(c); TITLE 42
U.S.C. § 1983; & TITLE 42 U.S.C. § 1985(3)” [Case No.
3:00cv1142] as filed on November 21, 2000, in United States
District Court for the Middle Tennessee District-Nashville
Division:
“On August 25, 1993, just two (2) months
147
preceding the twenty-fifth (25") anniversary of his
marriage to Defendant Carolyn P. Bishop (nee Carolyn
-J. Patrick, then Carolyn P. Akers, now Carolyn P. Bishop,
and referred to hereinafter as “Bishop”), the Plaintiff,
James G. Akers (hereinafter ‘Akers’) was awarded a
sizeable cash settlement on behalf of Coleman/ Akers &
Akers, Incorporated (hereinafter ‘C/ AA’), a Kentucky
corporation owned and operated by Akers and based in
the Lexington, Kentucky, area. The series of outrageous
events which have transpired thereafter, and as set forth
hereinafter in detail, have been such that should shock
the very conscience of any responsible citizen of a free
and democratic society in the modern world.
In a manner strikingly similar to historical
accounts of colonial Salem, Massachusetts; ‘Nazi’
Germany; and ‘cold war éra’ Soviet Bloc -countries,
Defendant Bishop and her hereinafter named co-
conspirators devised, effectuated, and perpetuated
schemes to unlawfully seize, withhold, divert, and
convert the property of Akers with intent to deprive him
thereof; to unlawfully circumvent and/or abridge all of
Akers' inalienable and lawful rights pursuant to, inter
alia, Article I-§§ 9 & 10, Article III-§2, Article IV-§2,
and the First, Fourth, Fifth, Sixth, Eighth, Thirteenth,
and Fourteenth Amendments of/to the United States
Constitution and, in both overt and covert concealmerit
of those said schemes, to oppressively deprive Akers of
his liberty in such a manner as is hereinafter set forth in
‘\,detail. Those said schemes and actions of and/or by the
named herein Defendants have not been limited to ‘civil
rights violations’ under ‘color of state law’, ‘color of
office’, and/or ‘malicious prosecution’ but extend, in
fact, to criminal acts in blatant and direct violation of the
Federal Laws as hereinafter enumerated.
As will be hereinafter shown, in detail, the
Plaintiff Akers was: (a) assaulted, decoyed, inveigled,
and robbed in May and June of 1994 and, in the covert
concealment thereof, was; (b) unlawfully imprisoned in
May and July of 1994 and, in covert concealment thereof;
(c) blackmailed and/or extorted from July of 1994 thru
March of 1995, and in further concealment thereof; (d)
essentially ‘kidnapped’ and fraudulently...
* Edited for clerical errors only and for formatting required for compliance
with F.R.A.P. 32(a)(7)(C).
..held in Nashville, Tennessee, during August and
September, 1995, and, in the covert concealment thereof;
(e) fraudulently extradited back to Kentucky in October
‘of 1995 and, in the further concealment of the
hereinbefore schemes; (f) fraudulently and maliciously
accused, prosecuted, convicted, and then imprisoned in
custody of the Fayette County [Kentucky] Sheriff and/or
Kentucky Department of Corrections from May 22, 1996,
until April 15, 1998, when; (g) Akers was released from
custody on a $52,000 Full Cash Bond pursuant to an
‘Opinion and Order’, as rendered February 27, 1998, by
the Kentucky Court of Appeals, which ruled that Akers'
convictions and resulting imprisonment had been
unlawfully achieved.
In the further concealment of those said schemes
of/by the Defendants, and as an intentional and
_ continuing course of conduct by them, Akers was: (a)
further blackmailed/ extorted in March of 1998; was (b)
further oppressively imprisoned in April of 1998; was
(c) further blackmailed and/or extorted from April
through October of 1998, and then; (d) yet again,
oppressively and unlawfully prosecuted, convicted,
and then imprisoned for the very same unconstitutional
and fraudulent felony charges, pursuant to the very
same unconstitutional and fraudulent indictment, as
was the case in May of 1996.
Following Akers' additional unlawful,
oppressive, and unconstitutional imprisonment since
October 28, 1998, the Court of Appeals of Kentucky
rendered Its second “Opinion” on May 19, 2000, in
sid: r
149
which It reversed (in part) Akers' convictions for the
second time and ruling, in hereunto relevant part, as
follows:
ics A
‘It is clear that the trial court failed to
follow our instructions on remand;
‘The court heard arguments as to the
admissibility of the evidence. Prior to making its
ruling, the court acknowledged that it had not
read our decision’;
‘Without reading our decision, the court
could not have followed our directives’;
‘While our opinion did not specifically so
require, the trial court should have granted
Akers separate trials on each count’;
‘By not holding separate trials, the trial
court abused its discretion and denied Akers a
fair trial...’;
‘Fairness and justice require us to reverse
his (Akers) conviction...’ (emphasis added)
Akers is not an attorney, and does not have any formal
training or education in the Law. Having been forced to
expend vast resources in defense of the hereinafter enumerated
unlawful acts committed by the named Defendants, and
ancillary expenses related thereto, Akers can no longer afford,
nor will he seek, further assistance and/or counsel of attorneys
with respect to the matters set forth herein.” [Joint Appendix,
Volume One, Exhibit 02-6235-02, pages 16-19, emphasis added]
As this Honorable Court can readily determine from the
hereinabove, the within case is extensive. It involves at least
sixteen (16) Defendants-Appellees named in only their
individual private capacities as “ persons” as defined within Title
18 U.S.C. §§2 & 1961(3), and Title 42 U.S.C. §§ 1983 & 1985; four
(4) “enterprises” as defined within Title 18 U.S.C. § 1961(4), i.e.,
150
“Southland Christian Church of Lexington, Inc.”, the
“Association-in-fact”, “Dr. John J. Vaughan, M.D.”, & “Ernest
W. Williams, Attorney-at-law” ; and potentially two hundred ten
(210) “Does” who have yet to be either quantified or identified
due to foreclosure of discovery by the District Court. The case
does not, as the District Court alleges, name “Central Bank &
Trust Co., Lexington, Kentucky”, “the Fayette County Circuit
Court”, or “the Fayette County, KY Sheriff's Office” as either
“defendants” or “enterprises”.
Summarily, the factual allegations against these
Defendants-Appellees include, inter alia, charges that,
beginning in about mid-July, 1993, and continuing through July
7, 2000:
(a) The named Defendants-Appellees engaged in
various “conspiracies” and/or “chain conspiracies” in
violation of TITLE 42 U.S.C. § 1985 [joint Appendix,
Volume One, Exhibit 02-6235-02, viz, “COUNT ONE”
through “COUNT FOUR”, pages 110-113; “COUNT
TWELVE”, pages 118-119; & “COUNT TWENTY-
THREE, pages 136-137] and, in furtherance and
concealment thereof;
(b) The named Defendants- Appellees committed
numerous specific “overt acts” in violation of TITLE 42
U.S.C. § 1983 [id., vi., “COUNT[S] FIVE through
ELEVEN”, pages 113-118; “COUNT(S) THIRTEEN &
FOURTEEN”, pages 119-120; & “COUNT(S) TWENTY-
TWO & TWENTY-THREE”, pages 135-137] and, in the
course thereof;
(c) The named Defendants-Respondents
committed numerous predicate acts in violation of TITLE
18 U.S.C. § 1961, et seq., as are all detailed within Akers’
Complaint...
..and Memorandum in support [id., viz, “COUNT(S)
FIFTEEN through TWENTY-ONE”, pages 120-135
thereof, for enumerations].”
i
:
a
i
i351
Notwithstanding the specific requirements set forth in
F.R.C.P. 12((a)(4)(A), only a single Defendant-Appellee, Carolyn
P. Bishop, has filed what could even conceivably be considered
an “Answer” to Akers’ Complaint following the denial of their
respective and clearly frivolous “MOTION(S) TO DISMISS” as
filed in either United States District Court for the Middle District
of Tennessee-Nashville Division [Case No. 3:00cv1142] and as
renewed in United States District Court for the Eastern District
of Kentucky-Lexington Division [Case No. 5:02cv0162 therein].
Moreover, except for Defendant Vaughan’s denial that “he was
a party to any alleged conspiracy [or] engaged in any unlawful
conduct” [see USDC-MTD Case No. 3:00cv1142, D.E. #51 at 4
II(B)(1), page 2, lines 6 & 7];° Defendant Kelly’s denial that he
has had any contact with Akers since September 23, 1994 [id.,
D.E. #76, page 2, lines 8 & 9];° & Defendant Bishop’s denial of
“the substantive allegations against her with the exception of
any items which appear of public record” [USDC-KYED Case
No. 5:02cv0162, D.E. #2 at §3],° not even a single Defendant-
-~
> If the Court would be so inclined, Akers would respectfully ask that It
review those specific averments giving rise to these summary allegatioris as
contained within 912 through 127 of Akers’ “CIVIL ACTION PURSUANT
TO: TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42 U.S.C.
§ 1985(3)” in United States District Court for the Middle Tennessee District-
Nashville Division [Joint Appendix, Volume One, pages 34-109] together with
parallel 4/12 thru 127 and all footnotes thereto, respectively, of Akers’
therewith and contemporaneous “MEMORANDUM & MEMORANDUM OF
LAW” [id. , Volume Two, Exhibit 02-6235-11, page 195].
° Even so, the remaining factual allegations are clearly sufficient to sustain a
“Summary Judgement” against these Defendants-Appellees -
notwithstanding the fraudulent misrepresentations contained within their
said pleadings. [see USDC-TNMD Case No. 3:00cv1142, D.E. #68, D.E. #69,
& D.E. #78, respectively]. Moreover, Defendant Carolyn P. Bishop has
essentially admitted having committed the predicate acts of “ theft by unlawful
taking or disposition (over $300.00)” & “tampering with physical evidence”,
both being felonies under Kentucky Law and, therefore, violations of Title 18
U.S.C. § 1964(c); Defendant Jerry L. Kelly has essentially admitted having
committed the predicate act of “forgery in the second degree”, a felony under
Kentucky Law and, therefore, a violation of Title 18 U.S.C. § 1964(c) if coupled
with an additional such “predicate act”; and Defendants Pamela Miller &
Katherine Witt have essentially admitted the fundamental elements of
152
“conspiracy”, in violation of Title 42 U.S.C. § 1985(2) & (3). [See Akers’
allegations with respect thereto within Akers’ Complaint, Joint Appendix,
Exhibit 02-0635-02, 4] 142(c) & (d), 144(a), & 128, respectively]
Appellee has attempted to controvert even a single averment as
‘contained within Akers’ “CIVIL ACTION PURSUANT TO:
TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42
U.S.C. § 1985(3)” inasmuch as virtually all such averments are
mechanically-recorded on audiotapes and/or videotapes and
the Defendants-Appellees cannot deny the factual allegations
against them without subjecting themselves to still further
sanctions and/or penalties under Federal Law. The merits of
Akers’s herein case just, simply, can not be challenged.
Notwithstanding the hereinabove, however, on
September 25, 2002, District Judge Jennifer B. Coffman, Eastern
District of Kentucky-Lexington, entered her “JUDGEMENT”
dismissing Akers’ Complaint - in its entirety - with respect to
every conceivable defendant and every conceivable
“enterprise” - in every conceivable jurisdiction - “with
prejudice”, and accompanied by her contemporaneous thirty-
four (34) page “MEMORANDUM OPINION AND ORDER,
DISMISSING’” in which she cites eighty-tive (85) purported
“authorities” in support of her ruling.
Again, as a matter of right, this appeal follows that
“JUDGEMENT” and accompanying “MEMORANDUM
OPINION AND ORDER, DISMISSING” pursuant to F.R.A.P.
Rules 4 & 28(a) together with Akers previous arguments
pursuant to the “Collateral Order Doctrine” Cohen _ v.
Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221,
1225-26, 93 L.Ed. 1528 (1949), in which the United States
Supreme Court held that “...certain orders were immediately
appealable (1) if they were collateral to the merits; (2) if denial
of an immediate appeal would result in irreparable damage to
the party seeking review; and (3) if the issue raised was “too
important” to “be deferred until the whole case is adjudicated”
(emphasis added). Accord, Firestone Tire & Rubber Co. v.
Risjord, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).
153
|
12
8 SI a EEE aa ane
ARGUMENTS
ARGUMENT I: THE “ENDS OF JUSTICE” REQUIRE
RE-TRANSFER OF VENUE BACK TO
UNITED STATES DISTRICT COURT
FOR MIDDLE TENNESSEE DISTRICT-
NASHVILLE DIVISION
This Honorable Court is hereby asked to take judicial
notice of the entire contents of Akers’ “ARGUMENT(S) I, II, &
V”, Akers’ “FINAL BRIEF FOR APPELLANT” [see Joint
Appendix, Volume Two, pages 370-378]; appended “EXHIBIT
CA6-10” to Akers’ “PETITION FOR STAY OF MANDATE”
entered this Court on February 13, 2001 (Case No. 02-6243
herein); and as contained within Akers’ “Petition for Writ of
Certiorari” entered with the United States Supreme Court on
April 24, 2002. In essence, Akers’ arguments therein include,
but are not limited to, contentions that:
The list of “lay witnesses” required by Akers’ at
trial of this case will include residents of four (4) separate
and distinct Federal Districts within Kentucky; two (2)
separate and distinct Federal Districts within Tennessee;
and two (2) separate and distinct Federal Districts within
Indiana. All “expert witnesses” required by Akers at
trial are residents of the Federal District of Middle
Tennessee. Fearing reprisal by the herein Defendants-
Appellees as does Akers, all “lay witnesses” who are
residents of Kentucky and Indiana have made it clear
that they prefer to testify in the Federal District of
Middle Tennessee, at Nashville, and arrange for travel
and/or per diem costs at their own expense. The yet
undetermined number of lay witnesses. who are
residents of Middle Tennessee, and the only witnesses
who can provide proof as to the “whereabouts” and
“demeanor” of Akers during the time period
conviction, cannot be required to travel irrexcess of one
hundred (100) miles from the venue and it would be
unfeasible for the U. S. District Court for the Eastern
District of Kentucky to compel their appearance in
Lexington, Kentucky. All nine (9) of Akers’ expert
witnesses are residents of, and maintain offices in,
Middle Tennessee. Akers just, simply, no longer has the =
resources to compensate those expert witnesses for |
travel time, travel expense, and per diem expenses
required for testimony in U. S. District Court for the
Eastern District of Kentucky at Lexington and there are
no expert witnesses within Central Kentucky who can
competently testify with respect to the issues raised in
Akers’ claims. Moreover, every witness conceivably
required by the herein Defendants-Appellees have
already testified with respect to every conceivable
matter in Akers’ numerous trials and/or hearings within
Fayette [Kentucky] District & Circuit Courts. All such
testimony is mechanically-recorded on audiotapes
and/or videotapes and can be utilized by the
Defendants-Appellees, to whatever extent relevant and
admissible, pursuant to Rule 804 of the Federal Rules of
Evidence. Akers has no such luxury.
|
encompassing his fraudulent “First Degree Stalking” |
This Honorable Court is asked to consider the
following likely scenario in the event the “ORDER” of
transfer issued by United States District Court for the
Middle District of Tennessee is allowed to stand: (a)
Akers’, who is not an attorney and can no longer afford
an attorney after having all his resources depleted in
defense of the fraudulent charges in Kentucky and
subsequent incarceration within Kentucky, is compelled
to re-enter the jurisdiction of the Defendants-Appellees
for filings, depositions, pre-trial hearings, and,
ultimately, for trial; (b) The Defendants-Appellees,
Meta
155
realizing that they are in a “no win” situation, file
additional fraudulent charges against Akers pursuant to
the outstanding, albe:t unconstitutional, “Domestic
Violence Order” as detailed in 4 118 of Akers’
Complaint; corresponding { E-118, Akers’
Memorandum; & hereinabove “COUNT TWENTY-
TWO - FINAL OVERT ACTS/COVER-UP” [reference
omitted ]; (c) Akers is then, yet again, unlawfully
imprisoned within Kentucky for “God only knows” how
long; (d) Akers’ herein “CIVIL ACTION PURSUANT
TO: TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983;
& TITLE 42 U.S.C. § 1985(3)” is then, subsequently,
“DISMISSED FOR FAILURE TO PROSECUTE”; & (e)
The Defendants-Appellees escape liability and exposure
of corruption.
The herein Defendants-Appellees have
committed equally-dastardly acts in May through July of
1994; October through December of 1995; and May of
1994 through July of 2000, and not even the Federal
Courts can guarantee that the Defendants will not do
so again in order to prevent this case from going
forward - thereby avoiding exposure of the corruption
within their ranks.
Truly, the “ends of justice” require venue for
Akers’ herein “CIVIL ACTION PURSUANT TO: TITLE
18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42
U.S.C. § 1985(3)” to remain in the United States District
Court for the Middle District of Tennessee at Nashville.
“The Kentucky Defendants’ arguments with
respect to transfer of this case to Central Kentucky are
nothing more than a ploy to lure Akers back to the
jurisdiction of the Defendants, thereby subjecting him to
“more of the same” oppression and tyranny which gave
rise to Akers’ claims herein and to facilitate additional
violations of Title 18 U.S.C. § 1961, et seq., and Title 42
U.S.C. §§ 1983 & 1985 by those Defendants [see, e.g.,
D.E. #78 at § 2(B)(I)(iii), page 5; & D.E. #75 at § 1(A)(iv),
page 18]”
156
Yet further, while Akers was reluctant to suggest it at the
time, it is clear from the District Court’s “JUDGEMENT” and
accompanying “MEMORANDUM OPINION AND ORDER,
DISMISSING” as entered on September 25, 2002, by District
Judge Jennifer B. Coffman, Eastern District of Kentucky-
Lexington Division, that it will be virtually impossible for
Akers to receive a fair adjudication of the within case in any
Court situated in Central Kentucky and, perhaps, even in the
entire Commonwealth of Kentucky.
ARGUMENT II: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY, AT
LEXINGTON, ABUSED ITS
DISCRETION BY DENYING AKERS’
“DEMAND FOR JUDGEMENT BY
DEFAULT” & “MOTION FOR PARTIAL
SUMMARY JUDGEMENT”
“Notwithstanding the specific requirements set forth in
F.R.C.P. 12((a) (4)(A), only a single Defendant-Respondent,
Carolyn P. Bishop, has filed what could even conceivably be
considered an “ Answer” to Akers’ Complaint following denial
of their respective and clearly frivolous “MOTION(S) TO
DISMISS” as filed in United States District Court for the Middle
District of Tennessee-Nashville Division, on November 21, 2000
[Civil Action No. 3:00cv1142].
..not even _a_single Defendant-Respondent has
attempted to controvert evensingle averment as contained
within Akers’ ‘CIVIL ACTION PURSUANT TO: TITLE
18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42 U.S.C.
3 1985(3)’ inasmuch as virtually all such averments are
mechanically-recorded on audiotapes and/or videotapes. The
Defendants-Respondents cannot deny the factualallegations
against them without subjecting themselves to still further
sanctions and/or penalties under Federal Law and providing
both Akers and the Federal Courts more than sufficient
ea eer eee eee
157
admissions to both enter and sustain a ‘JUDGEMENT ON THE
PLEADINGS’.
3. Inasmuch as the Defendants-Respondents have not
presented, nor can they present, any meritorious defenses,
whatsoever, to Akers’ herein claims, it is in the best interest of
the American public-at-large and judicial economy would best
be served if Akers’ herein ‘CIVIL ACTION PURSUANT TO:
TITLE 18 U.S.C. § 1964(c); TITLE 42 U.S.C. § 1983; & TITLE 42
U.S.C. § 1985(3)’...is now and forthwith lawfully concluded
without further exhaustive litigation at the taxpayers’ expense.
There is no just cause for further delay of the redress Akers
seeks herein pursuant to TITLE 18 U.S.C. § 1964(c); TITLE 42
U.S.C. § 1983; & TITLE 42 U.S.C. § 1985(3) in conjunction with
the First Amendment to the United States Constitution, and no
further ‘Memorandum of Law’ is either warranted or
necessary.” [Exhibit 02-6235-15, 42 & 3, Joint Appendix, pages
747-748]
Clearly, Akers was entitled to “Judgement by Default”
against Defendants Doris Fleming, Allen I. Rushing, John J.
Vaughan, Pamela Miller, and Ernest W. Williams pursuant to
F.R.C.P. 12(a)(1)(A), F.R.C.P. 54(c), together with F.R.C.P. 55(a)
& (b)(2); and “Partial Summary Judgement” against the
remaining identified Defendants Todd M. Layne, Donald
Shannon, Jerry L. Kelly, Thomas L. Clark, Katherine H. Witt,
Lou A. Red Corn, Rebecca M. Overstreet, Cindy G. Schwartz,
Todd D. Ferguson, & Pamela R. Goodwine pursuant to F.R.C.P.
8(b) & (d), F.R.C.P. 52(c), together with F.R.C.P. 56(a) & (d).
-15-
ARGUMENT III: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY, AT
LEXINGTON, ERRED BY APPLYING
HECK V. HUMPHREY AND ROOKER-
FELDMAN DOCTRINE AS GROUNDS
FOR DISMISSAL OF ENTIRE CASE
FOR “FAILURE TO STATE A CLAIM”
This Honorable Court is hereby asked to take judicial
158
notice of the entire contents of 42(D)(i) of Akers’ “RESPONSES
& OBJECTIONS TO: ‘RE-NOTICE AND RENEWAL OF
DEFENDANT CAROLYN P. BISHOP’S MOTION TO
DISMISS”, filed as D.E. #43, Case No. 5:02cv0162, United States
District Court for the Eastern District of Kentucky, at Lexington,
on October 4, 2002 [Exhibit 02-6235-22, Joint Appendix, pages
850-854].
Additionally, Akers would point out that, with respect
to District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 476 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), both of those cases are obviously inapplicable to the
instant case’ inasmuch they...
‘ The underlying “criminal” cases originate from a series of events leading
to what, at its worst, could be legally construed as nothing more than a
misdemeanor “ assault under extreme emotional disturbance” [see. e.g., Case
No. 5:02cv0162, D.E. #29, § 7(b) & FN7 thereto, i.e., “Even under Kentucky law
(particularly.K.R.S. 508.040), Akers’ so-called act of ‘assault’ of Bishop was punishable for only a
maximum fine of $250 and/or 90-day sentence in the county jail [see ‘OFFENSE, PENALTY AND
BAIL SCHEDULE’, APPENDIX A, Kentucky Rules of Court, 1995, West Publishing Company,
November 1, 1994] absent unconstitutional ‘ex post facto’ enhancement under the disguise of
implementing, evolutionizing, and/or ‘testing the mettle’ of Kentucky's newly-enacted / enhanced
‘Domestic Violence & Abuse’ laws and, only then, if proceedings had been initiated within the
one (1) year statutory period required by K.R.S. 500.050(2).” [see also, e.g., Akers’
“Motion for Reconsideration” , as filed in this Court [Case No. 01-06243] on December 10,
2001, FN8, page 12 thereof]. Moreover, there can be absolutely no question that Akers had been
- at least twice - already fully-punished for the events of May 4" and/or .
1994 [see, e.g., Akers’ Memorandum, Exhibit 02-6235-11, Joint Appendix at
pages 538-593, 94 E-34 w/FN44 thereto, E-37, E-38 w/FN49 thru FN53
thereto, E-51 w/FN81 thereto, & 81 w/FN76 thru FN82 thereto]. Not even
considering the elements of malice, abuse of process, and fraud, inter alia,
Akers’ convictions for any charge related to May 4/5", 1994, was barred by
either the statute of limitations and/or the Fifth Amendment to the U.S.
Constitution. Akers’ conviction “First-Degree Stalking” is even more easily
defeated, i.e., (1) there were no charges against Akers at the time he migrated
back to Tennessee on September 23, 1994 [id., 4 E-51 w/FN63 thereto]; (2)
thereafter, Akers did not voluntarily return to any jurisdiction within
Kentucky and there is no allegation to the contrary [id., | E-54 w/FN64 &
FN65 thereto]; (3) Akers never made even a single threat of “serious physical
injury or death” to Bishop or anyone else - only “threats” of a civil law suit
- while within the State of Tennessee [id., 9] E-56 thru E-64 w/FN66 thru
FN69 thereto, FN72, &-FN75]; (4) Akers’ acts were lawful within the State of
Tennessee [id., § E-60 w/FN69 thereto]; (5) Akers acts were not cognizable
under Kentucky Law [see: K.R.S. 500.060 Territorial applicability”, id., page
159
31, w/ FN65 thereto]; & (6) in essence, Akers was convicted for violating a
“protective order” with which he had not been served and was not even
aware of, in blatant violation of the Fourteenth Amendment to the U.S.
Constitution [id., | E-65 & E-66 w/FN70 thereto]. Clearly, thére were no
actionable “criminal” bases for any manner of “assault” or “stalking”
charges against Akers and therefore, there could aave been no jurisdiction.
..address legal actions for which the trial court clearly had both
“personal” and “subject matter” jurisdiction. The same is true
with respect to United States v. Owens, 54 F 3d. 271, 274 (5" Cir.
1995); Gottifried v. Medical Planning Services., Inc.,142 f. 3d. 326,
330 (6" Cir.), cert denied, 525 U.S. 1041 (1998); Migra v. Warren
City School District Bd. of Ed., 465 U.S. 75, 85 (1984); Rowe v. Bank
One, Indianapolis NA, 230 F.3d 1359, 2000 WL 1477231 (6" Cir.,
Sept. 25, 2000); & Ritter v. Ross, 992 F.2d 750 (7" Cir. 1993), cert.
denied 510 U.S. 1046 (1994); 1008 (9" Cir. 2000); & Bartell v.
Lohiser, 215 F.2d 550, 559 (6 Cir. 2000). Moreover, Rowe v. Bank
One, Indianapolis, NA, and Gottifried v. Medical Planning Services,
Inc. were rendered after most of the acts giving rise to Akers’
herein claims were completed. Neither of those cases, whether
supportive of Akers’ case or supportive of any alleged
“defenses”, can either set or affirm a precedent with respect to
the instant case inasmuch as to do so would be in distinct
violation of Article 1- § 10 [Cl. 1] of the United States
Constitution, i.e, as follows:
“No state shall...pass any...ex post facto law,” or
law impairing the obligation of contracts, or grant any
title of nobility.” (emphasis added)
It would stand to reason, then, that if a state is prohibited
from making or enforcing any ex post facto law, that the Courts
of the United States are equally-prohibited from implementing
or enforcing any ex post facto common law. Further, although
it would seem superfluous to address this issue any further, a
perfect example of such a fundamental miscarriage of justice is
presented within this very case, i.e., the indictment which led to
160
Akers’ “criminal convictions” which underlie...
® The term “ex post facto” is defined as: “[For L.L. ex post facto, ‘from what is
done afterward.] Formulated after the fact; adding to or in'some way altering
previous requisites, thereby changing a previously determined situation.
After the fact. - ex post facto law, a law made after an offense but operative with
respect to it.” [Grolier WEBSTER INTERNATIONAL DICTIONARY, Copyright
1974] See also: “ex post facto law” defined: “ A law passed after the occurrence
of a fact or commission of an act, which retrospectively changes the legal
consequences or relations of such fact or deed.” “...every law which, in relation
to the offense or consequences, alters the situation of a person-to his
disadvantage. Wilensky v. Fields, Fla., 267 So.2d 1, 5." [Black's Law Dictionary,
6th Edition-1998 (emphasis added)]
..the bases for claims herein reads as follows:
COUNT 1:
On or about the 4th day of May, 1994, in Fayette
County, Kentucky, the above named defendant
assaulted Caro:yn Patrick Akers with his hands causing
serious physical injury;
COUNT 2:
From November 1994 until August 1995, in
Fayette County, Kentucky, the above named defendant
committed stalking in the first degree by intentionally
stalking Carolyn Patrick Akers when he contacted her
for no legitimate purpose, made explicit or implicit
threats of serious physical injury or death while said
James G. Akers was under a Domestic Violence Order
to have no contact with Carolyn Patrick Akers. [Akers’
Memorandum, Exhibit 02-6235-11, Joint Appendix at
pages 588-591, emphasis added]
The resulting “True Bill”, issued November 6, 1995,
charged Akers with:
> ay re ys 6!
SN OR ane oer ete ABE Ee Sr ene eee ee
161
“COUNT 1: ASSAULT FIRST DEGREE KRS
508.010; UOR 13013 CLASS B FELONY”; and
’ “COUNT 2: STALKING FIRST DEGREE KRS
: 508.140; UOR 13242 CLASS D FELONY”. [id.,
i pages 592-593]
Up to and including May 4, 1994, when Akers
supposedly “assaulted” his wife (then Carolyn P. Akers), the
standard of proof required for a “First Degree Assault” had been
firmly-established by the Kentucky cases of:
Wills v Commonwealth, 502 SW(2d) 60 (Ky
1973), i.e., : “Notwithstanding claim that instruction of
malicious striking and wounding with intent to kill
should not have been given because it was not proven
that defendant had used a deadly weapon, other than
his fist which has been held not to be a deadly weapon,
where defendant was not convicted upon charge of
striking and wounding but upon lesser charge of assault
and battery, instruction was not prejudicial to
defendant” (emphasis added);
Charles v Commonwealth, 321 SW(2d) 253 (Ky
1959), i.e., “The fist has been held not to be a deadly
weapon” (emphasis added);
Reed v Commonwealth, 248 SW(2d) 911 (Ky
1952), i.e., “Hands and feet are not deadly weapons.
(Annotation from former KRS 435.170)” (emphasis
added); &
Roney v Commonwealth, 695 SW(2d) 863 (Ky
1985), ie. “A human fist is_not_a ‘dangerous
instrument’ within the meaning of first-degree assault
statute, KRS 508.010; in light of the ambiguity of the
legislature's intent, rule of lenity is followed and it was
error to instruct the jury to convict an accused if it
believed fists were dangerous instruments.” (emphasis
added) [id., FN36, page 34]
162
In 1996, however, nearly two (2) years after the so-called
“assault”, the Kentucky Court of Appeals rendered Its decision
in Johnson v. Commonwealth, 926 SW(2d) 463 (Ky. App. 1996),
“overruling” the previous precedent set in Wills, Charles, Reed,
and Roney. Thus, the herein Defendants not only fraudulently
convicted Akers of “First Degree Assault”, but they did so
utilizing standards which had been unconstitutionally altered,
ex post facto. Likewise, the application of either Hermansen v.
Chandler; Smith-Hunter v. Harvey; Ruff v. Runyon; Harvey v.
Waldron; or Bartell v. Lohiser to the instant case would be
essentially the same, i.e., unconstitutionally ex post facto in
violation of Article 1- § 10 [Cl. 1] of the U. S. Constitution.
ARGUMENT IV: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY, AT
LEXINGTON, ERRED BY APPLYING
VARIOUS IMMUNITIES AS
GROUNDS FOR DISMISSAL
OF THE ENTIRE CASE
This Honorable Court is hereby asked to take judicial
notice of the entire contents of 4 3(f), “MOTION TO STRIKE:
DEFENDANT PAMELA MILLER’S’RE-NOTICE & RENEWAL
OF MOTION TO DISMISS’, ‘MOTION TO STAY DISCOVERY’,
& ‘MOTION TO SUSPEND TIME TO ANSWER COMPLAINT’
[Exhibit 02-6235-19, Joint Appendix at pages 803-805].
Obviously, the District Court completely misconstrued
the facts of the case - or, at least, the timing with respect to those
facts in that It has concluded that each and every one of the
named Defendants is shielded from civil liability by either
“judicial”, “prosecutorial/ quasi-judicial”, and/or “witness”
immunities and, thus, accepts the Defendants’ ridiculous
propositions that, e.g.,
(i) By virtue of successful implementation and
subsequent unlawful validation of 1993 conspiracies in
violation Title 42 U.S.C. § 1985, Defendants Miller, Witt,
163
and “LFG Does 1 through 50” have somehow gained
some sort of “immunities” [see “COUNT ONE”, Akers’
Complaint, Exhibit 02-6235-02, Joint Appendix, “COUNT
ONE”, page 110];
(ii) By virtue of their fraudulent testimony during
fraudulent criminal trials of Akers in 1996 and 1998,
Defendants Bishop, Fleming, Rushing, CBT Does 1 thru
40, Layne, Shannon, Vaughan, and Kelly acquired
immunities for their 1994 conspiracies in violation Title
42 U.S.C. § 1983 [id., “COUNT(S) TWO thru FOUR”,
pages 111-113];
(iii) Defendants Bishop, Fleming, Rushing,
- Layne, Shannon, Kelly, SCC Does 1 thru 50, Witt, FCC
Does 1 thru 30, Clark, and LFG Does 1 thru 60 have all
acquired immunities for their 1994 “unlawful
imprisonment” of Akers [id., “COUNT(S) FIVE, SIX, &
SEVEN”, pages 113-115] by virtue of fraudulent
testimony of Bishop, Fleming, Rushing, Layne, and
Shannon during fraudulent criminal trials of Akers in
1996 and 1998;
(iv) By virtue of their fraudulent testimony
during fraudulent criminal trials of Akers in 1996 and
1998, Defendants Bishop, Fleming, Layne, Kelly,
Rushing somehow acquired immunities for their 1994
predicate acts in violation of Title 18 U.S.C. § 1961, et
seq., viz, “kidnaping”, “unlawful imprisonment’, “theft
by unlawful taking (over $300.00)”, “tampering with
physical evidence”, “wire fraud”, “ mail fraud”, felonious
“forgery”, “theft by extortion”, “blackmail”, and
“extortion” [id., “COUNT(S) FIFTEEN (a) thru (d),
pages 120-124; SIXTEEN (a), pages 124-125; &
EIGHTEEN (a), pages 127-128, respectively];
(v) By virtue of their fraudulent criminal
convictions of Akers in 1996 and 1998, Defendants Red
Corn and Overstreet acquired immunities for their 1995
predicate acts in violation of Title 18 U.S.C. § 1961, et
seq., viz, “tampering with a witness” and “influencing
a jury” [id., “COUNT(S) NINETEEN (a) through (c),
pages 128-131; & TWENTY (a), pages 131-133; &
EIGHTEEN (a), pages 127-128, respectively]; &
(vi) Notwithstanding that such acts could not, by
any stretch of imagination, be considered “judicial”,
“quasi-judicial”, or in_any other manner lawful, the
Defendants Red...
..Corn, Overstreet, and Williams have immunities for
their 1998 predicate acts in violations of Title 18 U.S.C. §
1961, et seg., viz, interstate “blackmail”, interstate
“extortion”, and “civil rights intimidation” [id.,
“COUNT TWENTY-ONE (a) thru (c), pages 133-135].
First, it is crucial to recognize that the history of “judicial
immunities”, “prosecutorial/ quasi-judicial immunities”, and
“witness immunities” is demonstrative of the underlying
purpose and intent of ensuring “good faith” within the legal
process. In the instant case, however, the Defendants-Appellees
have intentionally misused and abused the common law
principles of “judicial immunities” ,“ prosecutorial / quasi-judicial
immunities”, “witness immunities”, and all other “absolute
and/or qualified immunities” as illicit amendments to the
United States Constitution and applied them for the self-serving,
self-protecting, and self-perpetuating purposes of concealing
their own criminal acts.. Rather than effect the intended
purpose of “good faith”, they have been nothing more than
licenses for these Defendants to “do as they well please” to
perpetuate their individual and/or collective agendas - with
total and complete impunity and absolutely no accountability.
Secondly, there are no constitutional, legislative, or
statutory bases for such immunities - especially when, as in the
instant case, they are clearly at odds with specific provisions of
the Constitution and duly-enacted Laws of the United States of
165
America. Although it is clear that the Federal Courts have
authority to implement policies with respect to the due
administration of _justice, they do not have authority to
sanction and/or pardon criminal acts or, indeed, any other act
in clear and distinct violation of the Constitution and Laws of
the United States of...
Moreover, insofar as Akers has been able to ascertain, those herein
Defendants-Appellees who are long-time members and/or officers of
Southland Christian Church of Lexington, Inc., include , but_are not
necessarily limited to: Carolyn P. Bishop, Todd M. Layne, Donald R.
Shannon, Jerry L. Kelly, Katherine H. Witt, and Rebecca M. Overstreet.
America. Not even the Chief Justice of the United States
Supreme Court is lawfully immune to criminal or civil
penalties for such unlawful acts, whether intrinsically or
extraneously associated with public office [see. e.g. McMillan v.
Svetanoff, 793 F.2d 149 (5th Cir. 1986), i.e.,
“Immunity is only granted when essential to
protect the integrity of the judicial process”; “When the
initiative and independence of the judiciary is not
effectively impaired, the doctrine of judicial immunity
does not apply”; “Judicial immunity should not be extended
lightly or only because the actor is a judge. Before a judge is granted
immunity, courts should examine the acts complained of to
determine whether they are ‘judicial’. If the acts do not involve the
judicial process so that a fear exists that freedom of judicial decision-
making may be stifled, the judge should not be free from suit”; &
(‘OUTCOME: The court affirmed the decision of the
district court, which denied appellant judge's motion for
summary judgment”).
See also: Cleavinger v. Saxner, 474 U.S. 193, 106
S. Ct. 496, 501, 88 L. Ed. 2d 507 (1985) (citing favorably
Saxner v. Benson, 727 F.2d at 669, 674 n.2 (Cudahy, J.,
concurring)), i.e., “We must be equally hesitant in
applying the doctrine to judges acting outside the
traditional dispute resolution function”; Doe v. County
of Lake, Indiana, et al, 399 F.Sup; 553, i.e., “Despite its
fundamental and efficacious pur; se, the doctrine of
judicial immunity is not absolute and unlimited; it does
not immunize every state court judge in every lawsuit.
On the contrary, application of the doctrine is restricted
to its single objective: to protect judicial freedom in the
delicate process of deciding civil and criminal matters on
their merits. Where the initiative and independence of
the judiciary will not be effectively impaired, courts have
refused to apply the doctrine [**6] of judicial immunity.
For example, there is no official immunity from criminal
liability. O'Shea v. Littleton, 414 U.S. 488, 503, 94S. Ct.
669, 38 L. Ed. 2d 674 (1974). The Supreme Court
recognized long ago that a state court judge can be made
to answer criminally for violating the criminal provisions
of the Civil Rights Act. Ex parte Virginia, 100 U.S. 339,
25 L. Ed. 676 (1879). In addition, federal courts have held
that application of the doctrine is restricted to the
following areas: 1. immunity applies only when judges
are faced with suits involving their judicial as opposed
to ministerial or administrative duties, and 2. immunity
applies only when officials are sued for damages”; and
Eades v. Sterlinske, 810 F.2d 723 (7th Cir. 1986),
i.e, “Judicial immunity is a creature solely of the
common law. However, Congress did not abrogate the
defense in enacting §§1 of the Civil Rights Act of 1871, 42
U.S.C.S. §§ 1983.”
Clearly, violators of Title 18 U.S.C. § 1961, et seq.; Title
42 U.S.C. § 1983; and Title 42 U.S.C. § 1985 can not be permitted
to escape liabilities by subsequently initiating fraudulent
criminal charges against their victim and then fraudulently
convicting him or testifying at his resulting trial.
167
ARGUMENT V: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY, AT
LEXINGTON, ERRED BY ITS
APPLICATION OF DOCTRINES
OF “COLLATERAL ESTOPPEL”/
RES JUDICATA AS GROUNDS FOR
DISMISSAL OF ENTIRE CASE
FOR “FAILURE TO STATE A CLAIM”
This Honorable Court is hereby asked to take judicial
notice of the entire contents of 92(F)(i)/ (ii), Exhibit 02-6235-19,
Joint Appendix at pages 803-805; and §2(C)(ii), Exhibit 02-6235-
22, Joint Appendix at pages 844-845.
Additionally, although the District Court does not
specifically use the terms “res judicata” or “collateral estoppel”,
It has obviously misapplied those doctrines in _ Its
“DISCUSSION _V.1 - _Preclusive Effect of 1999 Civil Rights
Order” [Exhibit 02-6235-05, Joint Appendix at pages 182-183]
and preludes thereto entitled “PRIOR LITIGATION IN THIS
COURT - 1999 Civil Rights Action” & ”1999 HABEAS CORPUS
PETITION” [id., pages 162-163], i.e., as follows:
“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 99-183 (‘the 1999
civil rights action’)”; & “The facts span the period
between May 1994 and October 1998, and are
summarized in this court’s May 19, 1999 Memorandum
Opinion and Order (‘the 1999 Civil Rights Order’), and
are adopted and incorporated herein by reference.” [id.,
page 3];
“The petition again reiterated all of the events
concerning Akers and Bishop’s marital discord and
Akers’s 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 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
168
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 proceeding.” [id., page 4]; &
“The 1999 civil rights action stemmed from
essentially the same set of facts and occurrences through
and including May 10, 1999) which form the basis of the
instant complaint. As discussed, the instant complaint
does contain some, but not many, facts alleged to 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 piaintiffs) is persuasive. Courts may
appropriately dismiss IFP actions as frivolous when the
action ‘seek[s] to relitigate claims which allege
sul'stantially 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.2d846, 850 (5th 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 allege ‘substantially the same facts that
arise from a common series of event that were
unsuccessfully litigated by Plaintiff in [1999].’ Curtis v.
Boggs at **2. Thus, dismissal of Akers’ complaint
against these defendants is appropriate on these
grounds.” [id., pages 23 - 24 thereof]
Akers also hastens to counter that there are countless
Federal Cases - including the very ones the District Court cites
169
- which make it abundantly clear that prior invalidation of state
court convictions is not a pre-requisite to a Title 42 U.S.C. § 1983
action when those convictions were obtained, as in the instant
case, without jurisdiction |Rooker v. Fidelity Trust Co., et al,
HN228]; or by either “abuse of process” or “some type of fraud”
[Heck v. Humphrey, HN11 & FN3]}.
Moreover, if the District Court had simply taken the time
to review the state court records or, more appropriately,
permitted a fair and impartial jury to do so, It would almost
certainly have recognized from the audiotapes and videotapes
incorporated herein by reference that this case has never been
“litigated” but, rather, perpetrated - twice. There isa significant
difference between the two concepts. Akers is not “attempting
to re-litigate” his two (2) criminal trials within the Fayette
[Kentucky] Circuit Court inasmuch as “the damage has already
been done” to Akers’ person, property, and businesses. In the
instant case, Akers is only attempting to obtain proper redress
as specifically provided by Title18 U.S.C. § 1964(c), Title 42
U.S.C. §§ 1983 & 1985(3), and the First Amendment to the
United States Constitution. Akers clearly understands that any
“injunctive relief” must properly be sought within the Kentucky
Court of Appeals, Kentucky Supreme Court, and/or the United
States Supreme Court.
It is also crucial to recognize the chronology of the
instant case - especially with respect to the timing of Akers’ two
(2) “criminal” cases and any subsequent actions seeking
injunctive relief, i.e., (a) Akers was released from the custody of
Kentucky authorities on July 11, 2000; ...
...(b) Akers herein claims pursuant to Title 42 U.S.C. §§ 1983 &
1985(3) would have been barred by applicable statutes of
limitations after November 28, 2000; and (c) many of Akers
herein claims pursuant to Titlel8 U.S.C. § 1964(c) were
approaching similar deadlines. A motion pursuant to R.Cr.
11.42 is not time barred until July 7, 2003, and insofar as Akers
can determine, there is no time limitation on the remedy Akers
170
will likely employ to have his criminal convictions either set
aside or otherwise declared invalid, i.e., a “Petition for Writ of
Prohibition”. Thus, first, it would have been virtually
impossible for Akers to complete either of those forms of relief
prior to the approaching deadlines and, secondly, any such
action would have invoked Younger’s Abstention Doctrine and
the Defendants would have prevailed on that basis.
Moreover, Akers clearly needs evidence from the
instant case to support his motion pursuant to R.Cr. 11.42
and/or “Petition for Writ of Prohibition” in the Kentucky Court
of Appeals, Kentucky Supreme Court, and/or United States
Supreme Court. Without such evidence; how could either of
those Courts render an informed decision with respect thereto?
’ ARGUMENT VI: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY,
LEXINGTON, ABUSED ITS
DISCRETION BY REFUSING TO
PROPERLY APPLY REQUIRED
“STANDARD OF REVIEW” WITH
RESPECT TO DEFENDANTS’
“MOTION|S] TO DISMISS”
In support of Its decision, the District Court cites the
cases of Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404
U.5.519 (1972); Malone v. Colyer, 710 F.2d 258,260 (6th Cir. 1983);
Conley v.Gibson, 335 U.S. 41, 45-46(1957); Scheuer v. Rhodes, 416
U.S. 232, 236 (1974); Rauch v. Day & Night Mfg. Corp., 576 F2d
697 (6th Cir. 1978); & Westlake v. Lucas, 537, F.2d 857 (6th Cir.
1976). A thorough review of these cases, however, reveals that
they actually support a reversal of her ruling, viz,
Cruz v. Beto, “Granting the plaintiff's motion in
forma pauperis and his petition for certiorari, the United
States Supreme Court vacated the judgment and
171
remanded the cause for a hearing and findings”;
“Federal courts sit not to supervise prisons, but to
enforce the constitutional rights of all ‘persons ’, which
include prisoners”; {***HR4} [4] “We said in Conley v.
Gibson, 355 U.S. 41, 45-46, that ‘a complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to
relief” ; & {**1082} ...” If the allegations of this complaint
are assumed to be true, as they must be on the motion
to dismiss, Texas has violated the First and Fourteenth
Amendments.” (emphasis added)
Haines v. Kerner, et al, i.e., “The District Court
dismissed the complaint for failure to state a claim upon
which relief could be granted, and the United States
Court of Appeals for the Seventh Circuit affirmed (427
F.2d 71). On certiorari, the United States Supreme Court
reversed. In a per curiam opinion, expressing the
unanimous views of the court, it was held that since it
did not appear beyond doubt that the inmate could
prove no set of facts in support of his claim which would
entitle him to relief, he was entitled to an opportunity to
offer proof.”
Malone v. Colyer, i.e., “Trial courts are granted
broad discretion to dismiss complaints as frivolous, but
such discretion may not be exercised arbitrarily. Byrd v.
Wilson, 701 F.2d 592 at 594, (6th Cir. 1983), citing Boyce
v. Alizaduh, 595 F.2d 948, 951-953 (4th Cir. 1979).
Therefore, on review this Court must examine the pro se
complaint anew to determine whether it is indeed
frivolous. Id. Pro se complaints are held to ‘less
stringent’ standards than formal pleadings drafted by
lawyers.’ Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d
652, 92 S. Ct. 594 (1972). And, the allegations in pro se
complaints must be taken as true and construed in favor
of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th
Cir. 1976). ...[*261] The Fourth Circuit follows a standard
which varies slightly from Estelle v. Gamble: ‘To satisfy
the test of frivolousness under §§ 1915(d), it is
172
accordingly essential for the district court to find
‘beyond doubt’ and under any ‘arguable’ construction,
‘both in law and in fact’ of the substance of the plaintiff's
1 Claim that he would not be entitled to relief.’ Boyce v.
Alizaduh, 595 F.2d at 952. The Tenth Circuit follows a
standard unique to itself: ‘The test of frivolity is whether
a plaintiff can make a rational argument on the law and
facts in support of his claim.’ Wiggins v. New Mexico
State Supreme Court Clerk, 664 F.2d 812, 815 (10th Cir.
1981) (J. Seymour dissenting, at 818, applying Estelle v.
Gamble). ... Two of Malone's claims withstand the test of
frivolousness we have discussed in this opinion.
Therefore, we remand the case to enable him to offer
proof on these claims. ...Judgment is affirmed in part and
reversed in part. The case is remanded for proceedings
consistent with this opinion.” (emphasis added)
Conley, et al, v. Gibson, et al, ie., “On
certiorari, the United States Supreme Court reversed the
judgment below. Black, J., speaking for a unanimous
Court, held that the Railway Labor Act did not give the
Adjustment Board jurisdiction of the controversy, and
ruled, further, that the complaint was not to be
dismissed either for failure to join the railroad as a
defendant (since the railroad was not an indispensable
party), or for failure to adequately set forth a claim upon
which relief could be granted.”
Scheuer v. Rhodes, et al, i.e., “..We granted
certiorari ™' in these cases to resolve whether the District
Court correctly dismissed civil damage actions, brought
under 42 U. S. C. § 1983, on the ground that these
actions were, {****4} as a matter of law, ...
..against the State of Ohio, and hence barred by the
{*234} Eleventh Amendment to the Constitution and,
alternatively, that the actions were against state officials
who were immune from liability for the acts alleged in
ee
173
the complaints. ...[S]ince Ex parte Young, 209 U.S. 123
(1908), it has been settled that the Eleventh Amendment
provides no shield for a state official confronted by a
claim that he had deprived another of a federal right
under the color of state law. Ex parte Young {****11}
teaches that when a state officer acts under a state law in
a manner violative of the Federal Constitution, he ‘comes
into conflict with the superior authority of that
Constitution, and he is in that case stripped of his official
or representative character arid is subjected in his person
to the consequences of his individual conduct. The State
has no power to impart to him any immunity from
responsibility to the supreme authority of the United
States.’ Id., at 159-160. (Emphasis supplied.) ...While it is
clear that the doctrine of Ex parte Young is of no aid toa
plaintiff seeking damages from the public treasury,
Edelman v. Jordan, supra; Kennecott Copper Corp. v.
State Tax Comm'n, 327 U.S. 573 (1946); Ford Motor Co.
v. Dept. of Treasury, 323 U.S. 459 (1945); Great Northern
Life Insurance {****12} Co. v. Read, 322 U.S. 47 (1944),
damages against individual defendants are a permissible
remedy in some circumstances notwithstanding the fact
that they hold public office. Myers v. Anderson, 238 U.S.
368 (1915). See generally Monroe v. Pape, 365 U.S. 167
(1961); Moor v. County of Alameda, 411 U.S. 693 (1973).
In some situations a damage remedy can be as effective
a redress for the infringement of a constitutional right as
injunctive relief might be in another. ...There is {****30}
no such avenue of escape from the paramount authority
of the Federal Constitution. When there is a substantial
{**1693} showing that the exertion of state power has
overridden private rights secured by that Constitution,
the subject is necessarily one for judicial inquiry in an
appropriate proceeding directed against the individuals
charged with the transgression.’ Id., at 397-398. ...The
District Court acted before answers were filed and
without any evidence other than the copies of the
proclamations issued by respondent Rhodes and brief
affidavits of the Adjutant General and his assistant. In
dismissing the complaints, the District Court and the
Court of Appeals erroneously accepted as a fact the good
faith of the Governor, and took judicial notice that ‘mob
rule existed at Kent State University.’ There was no
opportunity afforded petitioners to contest {*250} the
facts assumed in that conclusion. There was no evidence
before the courts from which such a finding of good faith
could be properly made and, in the circumstances of
these cases, such a dispositive conclusion could not be
judicially noticed. We can readily grant that a
declaration of emergency by the chief executive of a State
is entitled to great weight but it is not conclusive.
Sterling v. Constantin, supra. ...Further proceedings,
either by way of summary judgment or by trial on the
merits, are required. The complaining parties are
entitled to {***105} be heard more fully than is possible
on a motion to dismiss a complaint. ...We intimate no
evaluation whatever as to the merits of the petitioners’
claims or as to whether it will be possible to support
them by proof. We hold only that, on the allegations of
their respective complaints, they were entitled to have
them judicially resolved. ...The judgments of the Court
of Appeals are reversed and the cases are remanded for
further proceedings {****33}consistent with this opinion.”
(emphasis added)
Rauch v. Day and Night Manufacturing Corp.,
et al,,i.e., “It is an elementary principle of jurisprudence
that a court of justice cannot acquire jurisdiction over the
person...
..of one who has no residence within its territorial
jurisdiction, except by {**8} actual service of notice within
the jurisdictior upon him or upon someone authorized
to accept service in his behalf, or by his waiver, by general
appearance or otherwise, of the want of due service (emphasis
added). ...The judgment of the district court is reversed
and the case remanded to the district court for further
175
10
proceedings.’
Westlake v. Williams, et al, 537 F.2d 857 (6th Cir.
1976), i.e.,“Dismissals of complaints under the civil
rights statutes are scrutinized with special care. See Azar
v. Conley, 456 F.2d 1382, 1384 ™ ' (6th Cir. 1972);
Lucarell v. McNair, 453 F.2d 836, 838 (6th Cir. 1972).
...{*861} In our view, Appellant has adequately stated a
cause of action for deprivation of needed medical care
and the District Court was in error in dismissing the case
at the pleading stage. Appellant has alleged that he was
forced to endure a period of intense discomfort because
his pleas for medical assistance went unheeded by his
jailers. He should have the opportunity to prove the
truth of his ailegations at an evidentiary hearing.
Appellees should be directed to respond to Appellant's
complaint and, should the trier of fact conclude that
Appellant's accusations are true, the District Court is
empowered to grant complete relief. ...Reversed and
remanded.” (emphasis added)
The District Court should have read the entirety of
these cases before relying upon them as “authorities” for
dismissal of Akers’ Complaint.
ARGUMENT VII: DISTRICT COURT FOR EASTERN
DISTRICT OF KENTUCKY, AT
LEXINGTON, ABUSED ITS
DISCRETION IN THE DENIAL OF
AKERS’ FUNDAMENTAL RIGHTS
TO TRIAL BY A FAIR AND
IMPARTIAL JURY AS THE ULTIMATE
“FINDER OF FACT”
RULE 38. JURY TRIAL AS OF RIGHT, Federal Rules
of Civil Procedure reads:
“(a) Right Preserved. The right of trial by jury
as declared by the Seventh Amendment to the
176
Constitution or as given by a statute of the United States
shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by
jury of any issue triable of right by jury by (1) serving
upon the other_parties a demand therefor in writing at
any time after the commencement of the action...”
(emphasis added)
The Seventh Amendment to the United States
Constitution reads:
“In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the
United States, than according to rules of the common
law.”
© See, e.g., “ARGUMENT III” and, especially, FN7 thereto, supra, page 16
hereof.
Without question, Akers has made a such “demand” for
trial by jury, on all issues, viz:
“FOR TRIAL BY JURY comprised of twelve (12)
disinterested and impartial men and/or women of high
moral character and integrity, against all Defendants, on
all Counts.” [see Akers’ Complaint, Joint Appendix at
page 143 thereof];
Obviously, the “value in controversy” herein exceeds
“twenty dollars”; Akers is clearly entitled to a “trial by jury”
of the instant case; and, without question, the District Court
has abused Its discretion in denying Akers that fundamental
right.
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177
ARGUMENT VIII: ALTERNATIVELY, THE HEREIN
CASE SHOULD BE HELD “IN
ABEYANCE” PENDING FILING
& DISPOSITION OF AKERS’
“PETITION FOR WRIT OF
PROHIBITION” SEEKING TO SET
ASIDE CONVICTIONS AS
UNCONSTITUTIONAL
These Defendants-Appellees and, now, even the District
Court, have gone to great length to exploit Akers’ remaining
“criminal convictions” for felonious “assault” and felonious
“stalking” as grounds for dismissal of Akers’ instant “CIVIL
ACTION PURSUANT TO: TITLE 18 U.S.C. § 1964(c); TITLE 42
U.S.C. § 1983; & TITLE 42 U.S.C. § 1985(3)”. Nevertheless,
there can be no doubt, whatsoever, that those same
“convictions” were clearly prohibited by, inter alia, the Fourth,
Fifth, Sixth, Eighth, & Fourteenth Amendments to the United
States Constitution and must, therefore, be set aside.'' The
problem, of course, is “timing” and that issue has been
extensively addressed within Akers’ “ARGUMENT V” [supra,
pages 23-25 hereof].
If, even after consideration of the hereinabove, this
Honorable Court concludes that matter to be of significance,
Akers must respectfully ask that the instant case be “held in
abeyance” until such time as Akers’ “criminal convictions” are
properly disposed of. Akers will then, of course, proceed
immediately with all measures necessary to effectuate such a
disposal.
'T See, e.g., “ Akers’ Memorandum” [Exhibit 02-6235-11”, Joint Appendix at
pages 481-488 (esp., FN1 thru FN6); U.S. v. Casciano [id., FN70, page 575];
& “ARGUMENT III”, esp., FN7 & FN8 thereto [supra, pages 16-19].
178
CONCLUSION
WHEREFORE, with due consideration to all of the
foregoing, the Plaintiff-Appellant, James G. Akers, without
counsel in strict accordance with Title 28 U.S.C. § 1654,
respectfully asks and prays of this Honorable Sixth Circuit Court
of Appeals to “REVERSE” the “JUDGEMENT” and
“MEMORANDUM OPINION AND ORDER, DISMISSING” as
entered on September 25, 2002, by Judge Jennifer B. Coffman,
Eastern District of Kentucky-Lexington Division, and remand
with instructions that: (1) the case shall forthwith be re-
transferred to United States District Court for the Middle
Tennessee District-Nashville Division as Case No. 3:00cv1142
therein; (2) the case shall forthwith be set “FOR TRIAL BY
JURY comprised of twelve (12) disinterested and impartial men
and/or women of high moral character and integrity, against all
Defendants, on all Counts”, as demanded; (3) Akers shall be
afforded the opportunity to prove the truth of his allegations;
(4) the Defendants-Appellees be forthwith directed to answer
Akers’ complaint; (5) should the jury conclude that Akers’
accusations are true, the District Court is empowered to grant
complete relief consistent with Westlake v. Williams, et al,
supra, and Haines v. Kerner, et al. supra; or (6) alternatively,
that the case be “held in abeyance” consistent with
“ARGUMENT XII” [supra, page 29 hereof].
Respectfully submitted,
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
CERTIFICATION OF COMPLIANCE
PLAINTIFF-APPELLANT, James G. Akers, without
counsel in strict accordance with Title 28 U.S.C. § 1654, hereby
certifies that the foregoing “FINAL BRIEF FOR PLAINTIFF-
APPELLANT” fully complies with FRAP 32(a)(7)(C) inasmuch
as, according to the “WORD PERFECT 9” program utilized, the
said “FINAL BRIEF FOR PLAINTIFF-APPELLANT” contains
exactly 62,673 characters; 11,633 words; 486 sentences; 966 lines;
239 paragraphs; & 30 pages (excluding those items listed in 6
Cir. R. 28(b) and/or Rule 32(a)(7)(B)(iii) of the Federal Rules of
Appellate Procedure).
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
180
REQUEST FOR ORAL ARGUMENTS
The District Court has rendered a thirty-four (34) page
“MEMORANDUM OPINION AND ORDER, DISMISSING”
and cited no less than eighty-four (84) cases as purported
“authorities” in support of Its ruling. It would be virtually
impossible to address all those issues and cases within the
limitations imposed upon this “brief” by F.R.A.P 32(a)(7).
Akers believes that, within his hereinabove
“ARGUMENT(S) I through VIII”, he has adequately addressed
all significant issues presented by the District Court - and has
provided this Honorable Court with compelling arguments in
support of remand. If, however, the Court finds any remaining
contentions of the District Court to be conclusively meritorious,
Akers must hereby respectfully request that “oral arguments”
be granted pursuant to F.R.A.P. 34(a)(2) and_ 6 Cir. R. 34(a), in
order that his “due process rights” to be heard will be properly
respected.
Respectfully submitted,
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
FINAL DESIGNATION OF APPENDIX CONTENTS
PLAINTIFF-APPELLANT, James G. Akers, without
counsel in strict accordance with Title 28 U.S.C. § 1654 in
conjunction with 6 Cir. R. 28(d) and/or 6 Cir. R. 30(b), hereby
files and serves as an addendum to the foregoing “ FINAL BRIEF
FOR PLAINTIFF-APPELLANT” designation of the parts of the
record included in the “Joint Appendix” as follows:
EXHIBIT
02-6235-01
02-6235-02
02-6235-03
02-6235-04
02-6235-05
02-6235-06
VOLUME ONE
DESCRIPTION PAGE
Certified “Civil Docket” (Case No.
3:00cV1142), as Of 03/29/072.........c.csrersscsccsrcsccerees 1
Akers’ NE ctasoestirinciainesmneonsvenasesounsnniensionsons 15
“ORDER” and contemporaneous
“MEMORANDUM” transferring case
to Eastern District of Kentucky as entered
by Hon. Robert L. Echols, Chief Judge for
USS. District Court for the Middle Tennessee
District-Nashville Division, on
a ctieicssitasiedsininvanineniiansivvesonvennksitaiapincinseies 149
“JUDGEMENT” as entered by Judge
Jennifer B. Coffman, U. S. District Court
for Eastern District of Kentucky-Lexington
CAV RININ, CIR F BI Fo venesvesarsnesovssssasvvresssessecnvess 157
“MEMORANDUM OPINION AND ORDER,
DISMISSING” as entered by Judge Jennifer
B. Coffman, U.S. District Court for Eastern
District of Kentucky-Lexington Division,
a cel eclcid cis chsc nasi 160
“Motion to Dismiss or Transfer Venue”
filed on behalf of Defendants Thomas L.
Clark, Rebecca M. Overstreet, Pamela
R. Goodwine, Lou A. Red Corn, Cindy
G. Schwartz, & Todd D. Ferguson (D.E.
#38, Case No 3:00cv1142), as entered
Ser ea TT chctscinictenenhicns abistineteeintapaicantgiaisdanieansdduedntaiies 194
02-6235-07. “Memorandum in Support of the Motion
of Defendant, John J. Vaughan, M.D., to
Dismiss the Complaint or Transfer the
Action” (D.E. #52, Case No 3:00cv1142),
NE Far i atteniiteseccmanineniniinenines 204
02-6235-08 “Motion of Defendant Ernest Williams
to Dismiss” and “Memorandum of Law
in Support of Defendant Williams’ Motion
to Dismiss”, (D.E. #55, Case No. 3:00cv1142),
ar i ie ientiinientecncctiscicalantaeennnnantics 227
02-6235-09 “Motion to Dismiss”, filed by Defendant
Allen I. Rushing, (D.E. #71, Case No.
3:00cv1142), entered 01/30/01... cceseseesees 232
App. 3 y
VOLUME TWO
EXHIBIT DESCRIPTION PAGE
02-6235-10 “NOTICE OF APPEAL to UNITED
STATES COURT OF APPEALS for
the SIXTH CIRCUIT”; and transmittal
letter tendering “Cashier’s Check No.
1336703” for “filing fees” & “docketing
fees” therewith, as filed and served
SFT Beever ccneisnnsinlosiintinonatischianannvicinwesea 236
02-6235-11 Entire contents of Akers’ “Petition for Writ
of Certiorari” as filed with the United
EXHIBIT
02-6235-12
02-6235-13
02-6235-14
02-6235-15
02-6235-16
States Supreme Court and served upon
all parties on 04/24/2002.........ccessssseseseseseenees 240
VOLUME THREE
DESCRIPTION PAGE
“Civil Docket” (Case No. 5:02cv0162),
BOGE EET Ber Ciiecistnsiinitiiainasatemmninambaaciemiaal 667
Plaintiff James G, Akers’ “” Motion to
Strike; and Motion to Stay Proceedings
Pending Determination of ‘Venue’ by
United States Supreme Court” (D.E. #5,
Case No. 5:02cv0162), & “Memorandum
& Memorandum of Law [in support
thereuf]”, entered 05/13/02... cescesceseeeeees 676
Plaintiff James G. Akers’ “Motion to
Strike ‘Defendant Jerry L. Kelly’s Motion
to Dismiss’”; and “Renewed Motion to
Strike; and Motion to Stay Proceedings
Pending Determination of ‘Venue’ by
United States Supreme Court” (D.E. #7,
Case No. 5:02cv0162), & “Memorandum
& Memorandum of Law [in suppor
thereof] entered 06/19/02............:csccsessesseeeseees 719
Plaintiff James G. Akers’ “Demand for
‘Judgement by Default’; and Motion for
Partial Summary Judgement” (D.E. #12,
Case No. 5:02cv0162), entered 06/19/02........... 745
Plaintiff Akers’ “Motion to Strike
[Defendant, Doris Fleming, Motion
to Dismiss]; and Motion for Sanctions
Pursuant to F.R.C.P. 11(c)(1)(A) & 11(c)(2)”
(D.E. #25, Case No. 5:02 cv0162), entered
Fa ei sisciinessennnsbilncelisacahennsnatbnbalsamehiaaaben 760
184
02-6235-17 Plaintiff James G. Akers’ “ Motion to
- Strike [Defendant Defendant Witt’s
Response Motion to Plaintiff's Motion
for Summary Judgement]; and Motion
for Sanctions Pursuant to F.R.C.P. 11(c)
(1)(A) & 11(c)(2)” (D.E. #28, Case No.
5:02 cv0162), entered 08/08/02..........:cccecseeseeees 768
02-6235-18 Plaintiff James G. Akers’ “Response &
Objections to: Defendants’ Clark, Red
Corn, Overstreet Schwartz, Ferguson, &
Goodwine] “Motion to Stay Discovery,
Suspend Time to Answer Complaint
Until Dispositive Motions Have Been
Addressed, or Alternatively to Dismiss
for Failure to Comply with Rule 8...”
(D.E. #29, Case No. 5:02 cv0162),
Ft Rea nte mT One TONE OT 778
02-6235-19 Plaintiff James G. Akers’ “Motion to Strike
{Defendant Pamela Miller’s ‘Re-notice &
Renewal of Motion to Dismiss’”, (D.E. #32,
Case No. 5:02cv0162), entered 08/14/ 02........... 798
02-6235-20 Plaintiff James G. Akers’ “Response &
; Objections to: ‘Re-notice and Renewal of
Defendants’, John J. Vaughan, M.D., and
Allen I. Rushing to Dismiss Complaint; &
Motions to Stay Discover & Suspend Time
to Answer Complaint’ (D.E. #33, Case No.
5:02 cv0162), entered on 08/14/02..........ccccesee 813
02-6235-21 Defendant Ernest W. Williams’ “Motion
for Status Conference” (D.E. #34, Case No.
5:02cv0162), entered 08/15/02...........cccsssseeeeeees 826
——_ ——_ = ———
185
02-6235-22 Plaintiff James G. 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),
SUN OT TT Ds Cillies vinitnccrsncccnnssstsinsinresinsnnniinin 832
02-6235-23. “Memorandum Opinion and Order”
dismissing, “without prejudice”, Civil
Action No. 99-173 in United States District
Court for the Eastern District of Kentucky,
at Lexington, and as entered 05/17/1999
(Over the “OBJECTIONS” of Plaintiff
James G. Akers on bases, inter alia, that
same is irrelevant and inadmissible with
respect to the instant Case Nos. 3:00cv1142,
9:02 cv0162, & COA6-02-6235).......eseeeeseeeeeneteees 874
s/ James G. Akers ,
JAMES G. AKERS, Plaintiff-Appellant
Post Office Box 3648
Brentwood, Tennessee 37024
Telephone: 615/834-2843
Facsimile: 615/831-9307
186
CERTIFICATE OF SERVICE
COMES THE PLAINTIFF-APPELLANT, James G.
Akers, without counsel in strict accordance with Title 28 U.S.C.
§ 1654, and certifies that I have on this, the 28" day of February,
2003, served two (2) true and complete copies of the foregoing
“FINAL BRIEF FOR PLAINTIFF-APPELLANT” upon respective
lead counsel for each and every named Defendant-Appellee, via
“UNITEDSTATES MAIL-FIRST CLASS”, postage pre-paid, and
in that manner as follows:
(Listing of served Parties and/or their respective
Counsel-of-Record are omitted from instant Petition
for Writ of Certiorari for the purposes of economy &
handling by Court. See official record for listings.)
s/ James G. Akers
JAMES G. AKERS, Plaintiff-Appellant
POST OFFICE BOX 3648
BRENTWOOD, TENNESSEE 37024
App. 5
[END OF DOCUMENT]
187
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
In Re
JAMES G. AKERS,
Plaintiff-Petitioner,
FILE NO. 5:02cv0162
CAROLYN P. BISHOP; et al,
Defendants-Respondents.
me me ee ee ee ee eee”
NOTICE OF APPEAL to
UNITED STATES COURT OF APPEALS
for the SIXTH CIRCUIT
NOTICE IS HEREBY GIVEN that James G. Akers, the
plaintiff, without counsel in strict accordance with Title 28
U.S.C. § 1654, appeals to the United States Court fo Appeals for
the Sixth Circuit from the order of the district court for the
Eastern District of Kentucky, Lexington Division, entered
September 26, 2002, to wit: order of “JUDGEMENT” and
contemporaneous “MEMORANDUM OPINION AND ORDER,
DISMISSING” the above-styled case and ordering that plaintiff's
“Motion[s] to Strike”, “Motion for Default Judgement”, and
“Motion for Summary Judgement” be “DENIED”.
The parties to the said order appealed from and the
names and addresses of their respective attorneys are as follows:
Plaintiff-Appellant: Attorney of record:
(a) James G. Akers James G. Akers, pro se
Post Office Box 3648
Brentwood, Tennessee 37024
188
Defendants-Appellees:
(a) Carolyn P. Bishop
(b) Doris Fleming
(c) Allen I. Rushing
(d) CBT Does 1 through 40
(e) Todd M. Layne
(f) Donald R. Shannon
(g) Jerry L. Kelly
(h) SCC Does 1 through 50
(i) John J. Vaughan, M.D.
Attorney(s) of record:
Leslie Rosenbaum, Esquire
300 Lexington Building
201 West Short Street
Lexington, Kentucky 40507
Douglas L. Hoots, Esquire
Landrum & Shouse, LLP
Post Office Box 951 -
Lexington, Kentucky 40588-0951
William W. Allen, Esquire
201 West Short Street
Lexington, Kentucky 40507-1269
[unserved and unrepresented due to
foreclosure of discovery]
Guy R. Colson, Esquire
Fowler, Measle & Bell, LLP
300 West Vine Street, Suite 600
Lexington, Kentucky 40507-1660
Guy R. Colson, Esquire
Fowler, Measle & Bell, LLP
300 West Vine Street, Suite 600
Lexington,,Kentucky 40507-1660
Augustus S. Herbert, Esquire
Middleton Reutlinger
2500 Brown & Williamson Tower
Louisville, Kentucky 40202
[unserved and unrepresented due to
foreclosure of discovery]
William W. Allen, Esquire
201 West Short Street
Lexington, Kentucky 40507-1269
(j) Thomas L. Clark
(k) Katherine H. Witt
(1) FCS Does 1 through 30
(m) Pamela Miller
(n) LFG Does 1 through 60
(0) Lou A. Red Corn
(p) CAO Does 1 through 20
(q) FCC Does 1 through 10
(r) Rebecca M. Overstreet
189
D. Brent Irvin, Asst. Atty. Gen.
Commonwealth of Kentucky
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
Bennett E. Bayer, Esquire
Landrum & Shouse
P. O. Box 951
Lexington, Kentucky 40588-2424
[unserved and unrepresented due to
foreclosure of discovery]
Leslye M. Bowman, Dir. of Litig.
Lexington-Fayette Urban County
Govt. 200 East Main Street
Lexington, Kentucky 40507
[unserved and unrepresented due to
foreclosure of discovery]
D. Brent Irvin, Asst. Atty. Gen.
Commonwealth of Kentucky
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
[unserved and unrepresented due to
foreclosure of discovery]
[unserved and unrepresented due to
foreclosure of discovery]
D. Brent Irvin, Asst. Atty. Gen.
Commonwealth of Kentucky
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
ean ree
190 ; t
(s) Cindy G. Schwartz D. Brent Irvin, Asst. Atty. Gen.
‘Commonwealth of Kentucky
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
Ss opts dgtyphee:
SP. SOG Ss Stands
(t) Ernest W. Williams Patrick W. Michael, Esquire
Woodward, Hobson & Fulton
2500 National City Tower 5
Louisville, Kentucky 40202 :
(u) Todd D. Ferguson D. Brent Irvin, Asst. Atty. Gen.
Commonwealth of Kentucky
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
(v) Pamela R. Goodwine D. Brent Irvin, Asst. Atty. Gen.
Commonwealth of Kentucky
_ Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601
DATED: October 3, 2002
SIGNED: s/ James G. Akers
Plaintiff-Appellant, pro se
ADDRESS: Post Office Box 3648
Brentwood, TN 37024
[END OF DOCUMENT]
:
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:
19]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
JAMES G. AKERS, CASE NO: 5:02cv0162
Plaintiff-Petitioner, JENNIFER B. COFFMAN,
Judge
Eastern District of Kentucky
FILED
OCT 04 2002
AT LEXINGTON
Defendants-Respondents. ) LESLIE G. WHITMER
) CLERK U.S. DISTRICT COURT
)
)
)
)
Vv. )
.
CAROLYN P. BISHOP; et al, )
)
RESPONSES & OBJECTIONS TO: “RE-NOTICE
AND RENEWAL OF DEFENDANT CAROLYN P.
BISHOP’S MOTION TO DISMISS”
COMES THE PLAINTIFF-PETITIONER, James G.
Akers (hereinafter “
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