Petition for Writ of Certiorari — Martinez v. American Oil & Supply Co.

Supreme Court, u.s.

PILED

00 S377 SEP 1am

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

RAMON HERMAN MARTINEZ

Petitioner

V.

AMERICAN OIL AND SUPPLY COMPANY

; and

AMERICAN TELEPHONE AND TELEGRAPH

COMPANY

~ Respondents

On Petition For Writ of Certiorari

To the United States Court of Appeals

For the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Ramon Herman Martinez

Pro Se

Apartment C-301

3901 Indian School Road, Northwest

Albuquerque, New Mexico 87110

(505) 256-9328

QUESTIONS PRESENTED FOR REVIEW

The petitioner seeks overthrow of Summary

Judgment with prejudice and either Trial At Law by

12 jurors or assessment of damages.

Ss

Why did not Court(s) send required Notice of

Consequences to a legally totally disabled Pro

Se Litigant, as required by Federal Rule of Civil

Procedure 56 in some Circuits and not here?

Why did the Court deprive a third set of

potential attorneys entry into the case who

requested reasonable extensions, pleading that

Pro Se Litigant was unable physically

(medically) to act in that capacity?

Why did District Court allow petitioner's

second set of attorneys to withdraw from this

case without requiring a reason as to why they

were doing so, as required by Federal Rules of

Appellate Procedure, Tenth Circuit Rules 46,

4(1).

PARTIES TO THE PROCEEDING

All parties to the proceeding in this Court are listed

on the Cover:

li

TABLE OF CONTENTS

Questions Presented for Review ooo ccccccssssseeece i

a ii

ssc edips ceed OO OE CT EE iii

ae iv

Text Of The Petition

ee EE DT TRE OES 1

Jurisdiction 1

SOOO O TOTES O EEE EHH E EOE EE ESET ESEE EEE EE SESE SEES SEES EESESS

Constitutional Provisions, Statutes, Rules,

Regulations, Canons oo ccccsseceee 1

Concise Statement of Case Facts Material

to Consideration of Questions Presented __ 3

Direct, Concise Argument Amplifying

Petitioner's Reasons Relied on for

Granting of the Writ 5

TABLE OF AUTHORITIES

Statutes

42 US.C.A. § 1993, 28 U.S.CA Li cccscsssssseseesseeeen -

Federal Rules of Appellate Procedure for

I ie cas 10, 11

Federal Rules of Civil

Poemeene 2, 3, 8, 10, 11, 15, 16, 17

ABA Model Code of

Judicial Conduct essen 2,3, 4, 5, 10, 14, 16

Authority Citations

Farred v. Hicks, 915 F.2d 1530 cess sessssscccceseessee °

Lynch v. Household Finance Corpcration

405 U.S. 555, 92 5. Ct. 1113, 1122 [1972] cece 5

Goka v. Bobbitt, 862 F.2d 646 ooo cccssesasssnsesneeee 8

SBK Catalogue Partnership v. Orion Pictures

Sa iat suc iansantorseriainianinunsie 8

In Re: Exxon Valdez, 102 F.3d 429, 432

I ceahsdtcdbinkenansslaintlae 12 -

Geder v. Godinez, 375 F. Supp 1334 oo sseee 15

iv

TEXT OF THE PETITION

Citations:

The District Court of the State of New Mexico

dismissed case by summary judgment. :

The Order and Judgment before Circuit Judge

Tacha, Ebel, and Briscoe upheld Summary

Judgment, 23 June 2000.

Jurisdiction:

Jurisdiction for this Court to review is upheld

by fact case originated in District Court, State

of New Mexico, the Court of first instance.

Constitutional Provisions; Statutes, Rules,

- Regulations, Canons:

Constitutional Provisions

Amendment V

...nor be deprived of life, liberty, or property, -

without due process of law,...

Amendment XIV

Section 1

All persons born...in the United States, and

subject to the jurisdiction thereof are citizens of

the United States and of the State wherein they

reside. No State shall ...abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 5

The Congress shall have power to enforce, by

appropriate legislation, the provisions of this

article.

Preamble

We the people of the United States,...establish

Justice,...promote the general welfare, and

secure the Blessings of Liberty and our

Posterity...

Article I, Section 8 [1]

The Congress shall have the power

to...provide for the...and General Welfare of

the United States;...

Article IV, Section 2 [1]

The Citizens of each State shall be entitled to

all Privileges and Immunities of Citizens in the

several States.

Statutes, Rules, Regulations

42 US.C.A. § 1983; Federal Rules of Civil Procedure

12(b)(6), 56(c), 28 U.S.C.A.

District Court failed to give pro se civil rights

plaintiff clear notice required by civil rules of need to

file affidavit or other responsive materials and of

consequences of default upon converting Motion to

Dismiss for Failure to State Claim into Motion for

Summary Judgment and give parties 30 days to

submit additional materials, it did not specifically

inform plaintiff of need to file affidavits and of

consequences of default. C.A.11 (GA.) 1990

Federal Court committed bias, prejudice. ABA

Model Code of Judicial Conduct Canon 3B(6).

Concise Statement of Case Facts Material to

Consideration of Questions Presented

This is a case of severe toxic poisoning exposure to

Respondents' chemical K5-16832 L2 lubricant and

further mineral oil chemicals. The former is a very

foul-smelling, thick lubricant for which the safety

regards of OSHA were ignored by both Respondents.

Facts exist that first doctor opened can in exam room

and had to close room for 24 hours to remove toxic

fumes and odor‘(s).

Respondents never told Petitioner that the

chemical that he was working with, K5-16832 L2, was

a toxic chemical (ingredients is on (TSCA) , see A.OS.

MSDS, attached to Lodging.

Respondents made Petitioner work in closed areas

without proper ventilatory safeguards, clothing, et al.

Result of exposure: multi-system involvement with

permanent, totally legal injury, accepted by Social

Security, 1994, ignored by company doctors obviously

unaware or ignorant of the harm. Injury detected by

private physicians. Court ignored letter from toxic

poisoning specialists. First attorney found he couldn't

handle case; second group abandoned Petitioner:

third group was given serious consideration.

Petitioner now having spent life Savings (mortgage

moneys, et al.) asked for more time. Magistrate Judge

denied. Federal Judge Conway intolerant, biased,

ignorant of facts clearly shown with no consequence

warnings issued Summary Judgment, upheld by

Tenth Circuit Judges Tacha, Ebel, Briscoe. - Petitioner

argued for Trial at Law by 12 jurors to decide on

merits of case presentation. Judges decided they

knew more of toxic poisonings than a jury, leaving

Petitioner helpless and devoid of funds after circa

$60,000.00 expenditures.

Issues to be considered were raised in both Courts.

Affidavits from specialists were attached. Canon

violations ABA Code Judicial Conduct 2 and 3 were

obviously done. Right to be heard according to law

was denied. Property rights include Petitioner's

body, thus becoming civil rights, ignored.

Respondents argued against de novo standard and

that Magistrate's Order effectively dismissed claim.

Petitioner issues were raised throughout District

Court's hearings and in Motion by Petitioner "Reply

in Support of Objections to Magistrate's Order

Denying Further Extensions," pages 1 - 5, filed May

28, 1999, attached to Lodging. Petitioner points out to

Court that facts were submitted to Court that toxicity

effects take 20 - 30 years to appear; now harm is

established and on-going with increasing magnitude

and severity. Constitutional cites not made per se

[Pro Se], but the repeated pleas of Petitioner in lower

Courts obviously point to repeated scope of same in

latter's arguments.

Both lower courts ignored pleading by Petitioner

to the effect that he could not pro se in this case

because of continuing medical problems. A potential

third set of attorneys who wanted to take the case

voiced some concerns, as did Petitioner's doctors, Joel

S. Hochman and George R. Schwartz (included are

their Affidavits), attached to Lodging. This is a

violation of Canon 3 B(6), ABA Code of Judicial

Conduct, a clear violation of civil rights, and

socioeconomic discrimination against the medically

disabled, forcing them to act Pro Se against formally

trained attorneys who are physically able, and is

totally wrong. Bias and discrimination are evident

here.

Direct, Concise Argument Amplifying Petitioner's

Reasons Relied On For Granting Of The Writ

1.

Ww

Circuit Courts_are at variance with the Tenth

Circuit on Statutes and Rule 56. [Georgia,

Florida, Tennessee, Texas, California to mention a

few.] Cite: Farred v. Hicks, 915 F.2d 1530.

A Magistrate Judge should not take it upon

himself to decide questions that should be sorted

out by a jury.

Judge Conway's demeanor so obviously departed

from the accepted and usual course of judicial

proceedings that bias and prejudice is glaring.

It is in the Public Interest and General Welfare of

the United States (Preamble; Article I, Section 8,

[13] is affected. Like tobacco, the petroleum and

plastic industries must be protected at all costs

since at least 25% of the employed populace is

slowly being poisoned. Their day has arrived.

Due Process [V] and equal protection of the laws

[XIV Section 1] and laws of Congress [XIV Section

5] must be ignored or hidden as here, the facts

explained show with clarity.

As stated, Petitioner's body is his. That rights in

property are a basic civil right has long been

recognized and affirmed by this Court and

Congress. Cite: 405 US. 555, Lynch v.

Household Finance Corporation, 92 S. Ct. 1113,

1122 [1972].

10.

As Tenth Circuit stated, page 1, Order and

Judgment is not binding precedent...why

discriminate against Petitioner? To protect

Corporate United States?

Life, liberty, and pursuit of happiness are

supposed to be protected [XIV, Section 1.] Equal

protection under the law. Vicarious

discrimination? The poor and ethnic do these

jobs here, ignorant of Congress' laws. The

Respondents sublimated their responsibilities

here.

The Affidavits by prominent medical authorities

support Petitioner. Yet, Judge Conway professed

to be an authority on toxic substances. The

judicial system in both Courts increasingly refuse

to dispense justice by allowing cases to avoid

going before a jury, unquestionably knowing a

jury would weigh the overwhelming evidence

here and rule for the Petitioner.

The increasing erosion of national boundaries in

the drive for total global economic imperialism

must not be hindered, for this case would force

awakening of the populace and lead to a "clean-

up"—Congressional laws and OSHA regulations

would have to be observed, excluding health

follow-ups and environmental evaluations.

Certain rights are inalienable—the right to know,

the right to force powerful interests to obey

Congress, the right to clean air, et al. The recent

Miranda Case Decision sent a powerful message

to abusive law enforcement agencies and was

hailed by the population. Your Chief Justice in

11.

12.

ia

14.

recent years [paraphrased] that perhaps the Court

should take a look at Stare decisis et non quieta

movere and pursue justice instead.

This case offers this Court an opportunity to send

this back for a jury trial or award significant

punitive damages that will let global giants know

this Court will not tolerate discrimination in

destruction of health by the most blatant toxicity

in violation of all humanity, numerous laws

passed by Congress, and regulatory agencies such

as OSHA —dispensing JUSTICE and letting all

lower courts be aware that

Honesty vivere;

alterum non loedere;

and

summ cuique tribuere —

are an inalienable Maxim of Justice in this Nation

again.

The events and facts in this case clearly show

abuse of the Privileges and Immunity clause of

the Constitution ruling this Court begot in 1999.

Article IV: Section 8.[1] and XIV Amendment

Section 1.

A Pro Se Litigant is discriminated against when

he is held to stern requirements of an attorney's

knowledge of the law, especially when the

Litigant is racing to find new attorneys while

handicapped by poor health conditions.

Motion for Summary Judgment should only be

granted against a litigant without counsel (pro se)

if the court gives clear notice of the need to file

Affidavits and other responsive material and the

15.

16.

consequences of default (Fed Rules Civ. Proc. 56,

28 U.S.C.A). C.A. 11 FLA (1988) at variance.

C.A.7(111) 1988. When a party has obtained

knowledge through the course of discovery or

otherwise that a material factual dispute exists

and yet proceeds to file a Motion for Summary

Judgment in hopes that the opposing party will

fail or be unable to meet its burden of responding

to the motion, he defeats the purpose of the

Summary Judgment Rule, which is to isolate

factually unsupported claims. This violates rules

of procedure that govern conduct of trial,

specifically Rule 11, Goka v. Bobbitt, 862 F2d 646.

Respondents have been well aware all along that

Petitioner can prove they are in possession of

many reports on Petitioner. They also have

chemical reports; an Affidavit from Joel

Hochman, M.D.; a letter from James Lindsey,

chemist; x-rays and CT scans; and a letter from

George R. Schwartz, M.D., main expert witness,

indicating that Petitioner was exposed to

Respondent's chemicals and that his medical

problems are a result of this. All of this is enough

to create controversy and show that causation can

be proven. Yet, Respondents waited until the

time was right, when the second attorneys

withdrew, leaving Petitioner vulnerable. They

sought to capitalize on this situation and made a

Motion for Summary Judgment.

It is within the Court's discretion to enter

summary judgment in favor a party opposing

summary judgment, despite absence of a cross-

application for such relief, where undisputed

facts show that the non-moving party is entitled

to such relief. SBK Catalogue Partnership _v.

Le a

Orion Pictures Corp., 723 F. Supp. 1053. D.N.I.

1989. Petitioner has demonstrated beyond a

shadow of doubt that he can prove causation

from Respondents' chemicals if given a chance.

Petitioner pleads and prays that this Honorable

Court reverse this biased, prejudicial summary

judgment from lower court in favor of

Respondents, and instead render summary

judgment in favor of Petitioner.

Petitioner is clearly the victim of :

a. Two lawyer abandonments (not justified).

b. Bias and prejudice of lower courts

c. His inability to perform in Pro Se capacity and

refusal of District Court to allow third set of

lawyers to enter case. (See Reply in support of

objections to Magistrate's order denying

further extensions, attached to Lodging.)

d. His medical disability is the result of being

exposed to Respondents' chemical K5-

16832L2.

The Magistrate Court Judge in his order denying

further extensions makes a comment that is all too

familiar on page two, where in effect he states that

he feels bad, that allowing extensions in this case

would be prejudicial and add financial burden to

AT&T; AOS AT&T is the richest corporation on

earth. I believe the real prejudice is against this

Petitioner, who not only is a man of modest means

but has also been poisoned by Respondents'

chemical and is trying hard to achieve justice with

diligence and perseverance and faith in this

Honorable Court that they will judge fairly. The

Magistrate did not feel same for Petitioner's

predicament, brought on by two_ lawyer

abandonments, and by his actions did not allow

him a potential third set of lawyers to enter the

case. They will enter the case if this summary

judgment is reversed. Petitioner has shown that

his civil rights have been violated by lower courts

favoring the rich over the common, and seeks

reversal of this Motion for Summary Judgment.

Federal Court judges ignored Federal Rules of

Appellate Procedure for the Tenth Circuit, Rule

46.4(1) (on withdrawals), by allowing the law firm of

Kenneth Wagner, P.C. to withdraw from this case

without giving the Court a valid reason as to why

they were withdrawing, as required by Tenth Circuit

Rules. There is no record in Court filings or Civil

Docket case no. 97-CV-523 listing of this law firm ever

filing with the Court a reason as to their withdrawal.

First attorney Peterson complied with this rule and

filed Document [52], dated June 9, 1998. The Order of

Magistrate Lorenzo F. Garcia of Conditional

Withdrawal of Plaintiff's Counsel demonstrates this

fact, citing financial constraint as the reason for

withdrawal, included in lodging is this Document

[52]. The second set of attorneys definitely did not

give Federal Court a reason as to their withdrawal, as

required by Rule 46.4(1).

The lower court chose to ignore this violation of

Circuit Rules, thus violating A.B.A Model Code of

Judicial Conduct Canon 3B.(6), citing discrimination

on both disability and socioeconomic circumstances

of the Petitioner. Bias and prejudice is evident by

their allowing attorneys an easy out and leaving the

medically disabled Petitioner in a_ terrible

predicament, all to the advantage of the defendants.

10

Contrary to what has been written, this withdrawal

was not by mutual consent of this Petitioner.

Attorneys simply told Petitioner that they were

withdrawing from the case. During this period of

withdrawal, Petitioner found an expert witness that

attorneys needed, George R. Schwartz, M.D., a

toxicologist. Petitioner told them that he had the

required expert, yet they still went ahead and

withdrew.

Respondent's current favorable position is the

result of bias, even without affidavits earlier on in the

case. Petitioner had sent to lower courts sufficient

documents to show that he had the material facts to

prove causation affidavits would come later. Judges

ignored Federal Rules of Civil Procedure for the

Tenth Circuit Rule 56.(f) by not ordering a

continuance, time for Petitioner to send affidavits to

Court. Petitioner has affidavits now. Included in

lodging of this appeal are several affidavits. The

Judges' common sense should have alerted them,

after viewing all the genuine material facts that

Petitioner sent to the Court in opposing summary

judgment, that indeed Petitioner could present

affidavits if given a chance (continuance), but they

chose to ignore Rule 56.(f).

Petitioner has been unfairly treated by the lower

courts since being abandoned by the second set of

attorneys and being placed in the position of pro se

against his will. Judges' statements that they have

been fair are simply not true; an example being that

they gave Petitioner ten calendar days to find a new

attorney and that is simply not enough time. It can

take up to two weeks for a lawyer to review a client's

papers after he has spent time finding a lawyer.

11

Petitioner is a victim twice. A_ victim of

respondent's chemicals and of the lower court judicial

system. Civil rights have been violated since

Petitioner was forced to go pro se.

The potential third set of attorneys, Guebert and

Yeomans, P.C. state in their Reply to Magistrate's

Order denying further extension dated May 28, 1999,

page 4 (in Lodging) that Magistrate's Order is

tantamount to dismissal of plaintiff's claims. They

further state that only in "extreme circumstances"

where violation is due to willfulness, bad faith, or

fault of the party. In Re: Exxon Valdez, 102 F. 3d 429,

432 (9th Cir. 1996); dismissal was justified here.

Petitioner's fight for justice has been demonstrated

beyond any doubt. He mortgaged his home to

finance this case and even after two lawyer

abandonments (the second one unethical and

permitted by court) Petitioner is still trying to gain

justice. On his own, he has filed two appeals; one

with Federal Court and one with the Tenth Circuit

Court of Appeals, and now is petitioning the Supreme

Court of the United States for true justice to be

rendered. How can this Petitioner's diligence in his

quest for justice be questioned? It simply cannot.

This whole case is a classic example of the Rich vs. the

Common Man. So far, the lower courts have been

totally inconsiderate since abandonment by the

second set of lawyers, and have damaged his case by

their evident bias and prejudice in favor of Corporate

America (poisoners). This court can change this

reversing judgment in favor of petitioner.

Many civil rights violations have occurred since

the second lawyer abandonment. Instead of showing

sincere consideration for the predicament of

12

petitioner (medically disabled on Social Security and

unfamiliar with rules of law), they chose to ignore his

and his doctors! pleadings for justice. Federal Judges

made a feeble, insincere attempt to cover their bias

and prejudice. Ten calendar days to find a lawyer,

and for them to review the case, is totally

unreasonable. When petitioner did find a third law

firm willing to finish his case (Guebert & Yeomans,

P.C.), the judges' actions in dealing with them in bad

faith (denying reasonable extension deadlines)

prevented them from entering the case. Letter dated

3/25/99 in Lodging shows this fact. Judges were

never sincere in petitioner finding new attorneys.

Federal civil rights violations were made here: forcing

a medically disabled person (neurologically and

physically; check doctor affidavits attached to

Lodging) to represent himself pro se. Several rules of

civil procedure were violated as well, as has been

amply represented.

Because of the large amount of KS-16832L2 being

used for upwards of eight hours at a time with no

ventilation available, no windows in any building

with communication equipment, surety the OSHA-

accepted maximum level of exposure of

SMG/CUMTLV-TWA was being exceeded. No

protective equipment was offered such as masks,

gloves, etc. Material safety data sheets (MSDS) were

also not available. OSHA and the Federal "Right to

Know" law requires that MSDS's be available at job

sites where chemicals are being used. Petitioner did

not see a MSDS until after he retired. He never had

the "right to know." This is a violation of the Federal

‘Right To Know" law.

Nonetheless, James D. G. Lindsay in his report

(attached to Lodging) states that American Oil &

13

Supply Company's (manufacturer of KS16832L2)

MSDS's are worthless, purposely hiding much

important safety and health information from the

user. This MSDS, however, does state that the

_ chemical can contribute to pulmonary injury and all

ingredients are listed in the Toxic Substance Control

Act (TSCA); all are toxic. (MSDS attached to

Lodging.) Also in Lodging is report by Hazard Safety

Data Bank (HSDB) on the dangers of mineral oil, an

ingredient of KS-16832L2, composition 44%.

All those persons that have worked with the KS-

16832L2 in the past have the right to know what they

were working with. Many no doubt are suffering

medical health problems such as petitioner. Yet

because of a long latency period (20 plus years) these

persons lose track of their chemical exposure.

The Tenth Circuit Court of Appeals judges feel that

the lower court judges did not err in their decisions

dealing with the petitioner, quoting several citations,

etc. The fact of the matter is that the lower court

judges showed a total disregard for the condition of

the petitioner and the circumstances that brought him

to this predicament. They did not consider the

following:

1. That petitioner has been unethically abandoned by

his second set of attorneys, violating Tenth Circuit

rules on withdrawal (46.4(1)).

2. Untrained in the law, this pro se litigant is forced

to stay in that position by refusal of Federal Court

judges to allow Guibert & Yeomans entry into the

case.

14

3. The judges totally disregarded the fact that they

were dealing with a legally medically disabled

person (physical, neurological). See Dr. Joel S.

Hochman's affidavits attached in Lodging; also the

affidavits of Dr.George R. Schwartz and Allan

Lenetsky, M.D.

It is absurd to believe that any judge bent on

rendering true justice would not consider all of the

foregoing. A judge's function is to render judgment,

not block justice. The judges demonstrated the worst

kind of bias and prejudice here, showing no

consideration for this petitioner's condition. Most

federal circuits show this consideration when dealing

with pro se litigants; none was shown by lower

courts.

Consider the following N.D. 111.1995. On Motion

for Summary Judgment, pro se litigants are not held

to the same stringent standards as formally trained

attorneys, their pleadings are to be liberally

construed. Goeder v. Godinez, 375 F. Supp. 1334.

Obviously, consideration is suggested here.

In opposing the Motion for Summary Judgment,

petitioner sent the federal judge a mountain of

documents to back up his claim of causation (material

facts). Most of them are in the Lodging of Appeal and

then more that are not included in this Lodging

would be too voluminous. Included were Dr. Joel S.

Hochman's affidavit and expert witness on toxicology

Dr. George R. Schwartz's letter dated December 21,

1998 showing that he could be petitioner's expert

witness. The judge should have realized that with

reports such as these, the affidavits that he required

would come later. He chose not to comply with Rule

56(f) on continuance to produce affidavits, and also

15

Rule 56(e) which allows for other types of material

facts to be sent in opposing summary judgment

(example material in Lodging). The judge decided to

ignore violating Federal Rules of Civil Procedure.

Lower court judges are not chemical or medical

experts and should allow petitioner's doctors and

expert chemist to testify in a court of law.

Money and influence should never be the reason as

to whether a litigant receives justice or not. Such has

been the case here. Lower court judges protecting

corporate America, corporate poisoners. This should

never be the case in American jurisprudence. The

Pledge of Allegiance states "...and justice for all."

Lower court judges made feeble attempts to justify

summary judgment for respondent. In doing this

they used empty statements and half-truths that hide

the real truth. Petitioner was even denied a Request

for Hearing where the truth could have been

explained thoroughly.

Federal court judges did not care that Petitioner

was legally medieally disabled and could not perform

as pro se and denied a third set of attorneys entry into

the case. Petitioner's doctors' affidavits showing this

problem, and their opposition to the petitioner acting

pro se, was not considered. This is a violation of

ABA Model Code of Judicial Cannon 3B.(6

discrimination against the medically disabled. In this

case, forcing a legally disabled litigant to fight his case

against all odds. (See Dr. Hochman's affidavit dated

July 27, 200; Hochman's other affidavit dated August

19, 1998; and George R. Schwartz's affidavit dated

July 30, 1999.) All are undeniable proof of medical

condition of petitioner and their advice that he was

not capable of acting pro se. Judges ignored all this.

16

This affidavit could have been presented earlier if

Judge Conway would have allowed a continuance in

this case, as required by Federal Rule of Civil

Procedure 56(f). Also ignored was Federal Rule of

Civil Procedure 56(e). The Judge's actions here were

in violation of Canon Law 2-3, violating 3B(6), civil

rights of petitioner, who has struggled throughout

this case against many odds.

Lower court judges definitely violated civil rights

of petitioner throughout, refusing to work with him

in good faith since the second lawyer abandonment.

He not only was battling opposing respondent

lawyers, but also federal court judges bent on

dismissing his case once he was put in this horrible

predicament, not considering his medical condition or

his unfamiliarity with legal rules as he is not a

formally trained attorney.

There were more than enough genuine material

facts in the Lodging sent to Judge Conway in

opposing summary judgment. A _ prudent mind

dedicated to justice should easily see this (note this

Lodging). More documents than are in this Lodging

were sent to Judge Conway. If all of this information

used by petitioner to prove causation and sent to

Judge Conway was not enough, he should have

ordered a continuance to produce more affidavits.

Rule 56(e).

Is the Tenth Circuit at such a variance with other

circuits that allow special consideration to pro se

litigants? How much more consideration would they

show to a medically disabled litigant? Lower court

judges chose not to have consideration and instead

violated the civil rights of petitioner.

17

No one is above the law. Let justice prevail.

Both lower courts denied petitioner an oral

hearing. A hearing would be justified here under

Canon 3B.(1).

WHEREFORE, Petitioner prays that this most

honorable court reverse this biased Motion for

Summary Judgment awarded respondents by the

lower court. This will allow a potential third set of

attorneys to enter this case as indicated by their letters

to the Court.

OR, on behalf of petitioner, that this court reverse

this biased order and without cross-application

reverse summary judgment in favor of the petitioner.

This would be justified in view of civil rights

violations committed by the lower courts.

Additionally, award damages to petitioner brought

about by respondents' chemicals that can be

demonstrated by the attached medical reports

(attached to Lodging).

Respectfully submitted:

“without prejudice UCC 1-207"

Ramon Herman Martinez, Petitioner

Ramon Herman Martinez

Pro Se

Apt. C-301

3901 Indian School Rd NE

Albuquerque, New Mexico 87110

Telephone: (505) 256-9328

18

APPENDIX

United States Court of Appeals for the Tenth

Circuit, Order and Judgment before TACHA,

EBEL, and BRISCOE, Circuit Judges filed

document: None

U.S. District Court, District of New Mexico

Memorandum Opinion and Order by Chief

Judge John E. Conway overruling Plaintiff's

objections to Magistrate Judge's order denying

further extensions [92] and granting

defendant's motion for summary judgment

[98] filed document: 104, June 28, 1999.

U.S. District Court District of New Mexico

Order by Magistrate Judge Lorenzo F. Garcia

denying further extensions filed document: 91,

April 16, 1999.

U.S. District Court, District of New Mexico

Order by Magistrate Lorenzo F. Garcia of

conditional withdrawal of plaintiff's counsel

and extension of case management deadlines.

Document: 52 filed June 9, 1998.

Filed June 23, 2000

No Document Number

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RAMON H. MARTINEZ,

Plaintiff-Appellant,

No. 99-2228

(D.C. No. CIV-97-523-JC)

AMERICAN OIL AND (D. N.M.)

SUPPLY COMPANY and

AMERICAN TELEPHONE

& TELEGRAPH COMPANY,

Defendants- Appellees

ORDER AND JUDGMENT'

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this

panel has determined unanimously that oral argument

would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without

oral argument.

" This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

Security Act (ERISA), all arising out of injuries he

alleged were caused by his use of lubricant KS168321-2

while employed by AT&T. Plaintiff amended his

complaint in March 1998, deleting his ERISA claim and

dropping some defendants. Soon after plaintiff's

deposition was taken in June 1998, plaintiffs first attorney

withdrew, citing financial considerations. The magistrate

judge assigned to preside over discovery matters extended

the case management and discovery deadlines, and

shortly thereafter, a second attorney entered an

appearance on plaintiff's behalf. This second attorney,

however, withdrew in December 1998. .

Plaintiff, now appearing pro se, was given additional

extensions of the case management and discovery

deadlines by the magistrate judge, based on plaintiff's

assurances that entry of new counsel was imminent. On

April 16, 1999, after nomnew counsel had made an

appearance on plaintiff s behalf, the magistrate judge

denied plaintiffs request for a further extension of the

deadline for disclosure of plaintiffs expert witnesses and

other case management deadlines. The magistrate judge

noted in his order that plaintiffs complaint had been

pending for two years; that he had extended the case

management and discovery deadlines at plaintiff's request

on three prior occasions; and that he had granted plaintiff

four extensions of time to designate his expert witnesses

and to produce expert reports in accordance with Fed. R.

Civ. P. 26. The magistrate judge further noted that

On June 28, 1999, the district court granted defendant's

motion for summary judgment, finding that plaintiff had

failed to submit any evidence that created a genuine issue

establishing the requisite causation. The district court

ruled that neither Dr. Schwartz's letter nor Mr. Lindsay's

statement provided the factual basis for their stated

opinions nor established that they were competent to

testify as to the matters stated in their submissions; that

the list of photocopied publications was insufficient to

establish causation; and that "none of the complete

excerpts suggested] a tie" between pulmonary fibrosis

and plaintiffs exposure to the KS I 6832L2 lubricant. R.

Vol. 111, Doc. 104 at 3-4.

DISCUSSION

Plaintiff argues that the magistrate judge erred in

refusing to extend the time allowed for expert witness

discovery. We review discovery rulings for Man abuse of

discretion. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1386

(10th Cir. 1994). “[W]e will not reverse a decision to limit

discovery absent a clear showing that the denial of

discovery resulted in actual and substantial prejudice to

the complaining litigant." Davoll v. Webb, 194 F.3d 1116,

1139 (10th Cir. 1999) (quotations omitted; alteration in

original). We conclude the magistrate judge's decision to

deny further extensions of time was not an abuse of

discretion. The magistrate judge granted plaintiff

numerous extensions of time

at 781 (quotation omitted). "At a minimum, the expert

testimony should include a description of the method used

to arrive at the level of exposure and scientific data

supporting the determination. The expert's assurance that

the methodology and supporting data is reliable will not

suffice." Id. Here, we have carefully reviewed the

materials submitted by the parties and the record on

appeal, and we agree with the district court's

determination that plaintiff s submitted materials, not in

the form of affidavits, fell short of meeting this standard.

Plaintiff has submitted additional materials on appeal

which are dated after the district court's order granting

summary judgment. Because those materials were not

presented to the district court when its ruling was made,

we do not consider them. See Boone v. Carlsbad

; Bancorporation, Inc., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992).

We AFFIRM the district court's grant of summary

judgment in favor of defendants for substantially the same

reasons stated in the district court's thorough order filed

June 28, 1999. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

US

Filed June 28, 1999 11:16

Document No. 104

District Court

District of New Mexico

Digital File Stamp

Case:

97cv00523

Title:

Martinez v. American Oil

Document Type:

Memorandum Opinion and Order

Document Number:

104

Description:

MEMORANDUM OPINION

AND ORDER by Chief Judge John

E. Conway overruling Plitf's

Objections to Magistrate Judge's

Order Denying Further Extensions

[92] and granting Defendant's

Motion for Summary Judgment

[98]

Total Pages:

+

Exhibits/ Attachment:

0

Court Signature:

3e 82 4f f0 65 25 1b 47 64 ba c3 9a

3a dO le 16 dO c5 39 df e6 Ob bd a7

f3 56 eb 62 d7 d7 88 de f9 a5 97 50

ca bb e8 84 13 le 9c 35 06 df 02 7d

80 73 24 £3 56 6b 94 3b 46 dc ae c2

la ce 81 74

This document constitutes an official stamp of the Court

and, if attached to the document identified above, serves

as an endorsed copy of the pleading. It may be used in

lieu of the Court's mechanical file stamp for the named

document only, and misuse will be treated the same as

misuse of the Court's official mechanical file stamp. The

Court's digital signature is a verifiable mathematical

computation unique to the filed document and the Court's

private encryption key.

change can be detected.

This signature assures that any

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

RAMON HERMAN MARTINEZ,

Plaintiff.

vs. No. CIV 97-0523 JC/LFG

AMERICAN OIL ANTI) SUPPLY

COMPANY, AMERICAN

TELEPHONE AND TELEGRAPH

COMPANY, and U S WEST

COMMUNICATIONS, INC.

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER came on for consideration of Plaintiffs

Objections to Magistrate Judge's Order Denying Further

Extensions, filed April 26, 1999 (Doc. 92). and Defendants’

Motion for Summary Judgment, filed May 26, 1999 (Doc.

98). The Court has reviewed the motions, the memoranda

submitted by the parties, and the relevant authorities. The

Court finds that Plaintiff's Obiections to Magistrate Judge's

Order are not well taken and will be overruled. The Court

further finds that Defendants' Motion for Summary

Judgment is well taken and will be granted.

1. Objections to Magistrate Judge's Order

Plaintiff seeks to overturn Magistrate Judge Garcia's

April 16, 1999 Order denying Plaintiff s renewed motion

for "extension and request to establish new case

management deadlines." Order at 1 (Doc. 91). Plaintiff

claims Judge Garcia's Order is equivalent to a dismissal

with prejudice because without the extension Plaintiff will

be unable to establish the causation element of his claim.

Plaintiff contends that he did not intentionally miss the

previous deadlines set by Judge Garcia and that he should

be given significant leeway because he is acting pro se.

Plaintiff also asserts that Judge Garcia's Order Should be

reviewed under a de novo standard of review.

Defendants counter that Judge Garcia's Order is

simply a non-dispositive case management order that

should be reviewed under the clearly erroneous or

contrary to law standard. Defendants highlight that

Plaintiff has been given four previous extensions, and the

case has been docketed for over two years. Defendants

assert that Plaintiff's inability to establish tile essential

elements arise from his failure to comply with the

previous case management deadlines established by the

Court and not from Judge Garcia's denial of the additional

extension for expert witness discovery.

I find that this issue is non-dispositive and therefore

governed by the clearly erroneous or contrary to law

standard. Judge Garcia's Order did not dismiss Plaintiff's

case and was not a sanction against Plaintiff. Judge

Garcia's Order simply denied Plaintiff an additional

extension to find an expert.

Under Federal Rule of Civil Procedure 72(a), the Court

shall consider objections made by the parties and shall

modify or set aside any portion of the magistrate's order

found to be "clearly erroneous or contrary to law." FED. R.

Civ. P. 72(a). "The clearly erroneous standard is intended

to give the magistrate a free hand in managing discovery

issues." R. MARCUS & E. SHERMAN, COMPLEX

LITIGATION at 643 (1985). "To be clearly erroneous, a

decision must strike us as more than just maybe or

probably wrong, it must...strike us as wrong with the

force of a five-week-old unrefrigerated dead fish." Parts &

Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th

Cir. 1988).

Judge Garcia's order was not clearly erroneous or

contrary to law. As previously noted, this case has been

pending for over two years. Plaintiff has had several

deadline extensions and Judge Garcia has made every

effort to accommodate Plaintiff under the rules.

Consequently, Plaintiff's Objection to Magistrate's Order

will be overruled.

I]. Summary Judgment

Summary judgment is appropriate if the moving party

presents evidence that shows there is no genuine issue of

material fact and that the moving party is entitled to

judgment as a matter of law. Upon sucha showing, and

where the non-movant bears the burden of proof at trial,

the non-movant must then come forward with specific

facts; the non-movant cannot rely on the allegations

contained in the pleadings alone. Lopez v. LeMaster, 172 F.

3d 756, 759 (10th Cir. 1999). Of course, the facts are

viewed in a light most favorable to the non-moving party.

Luckett v. Bethlehem Steel Corp., 618 F. 2d 1373, 1377 (10th

Cir. 1980).

In this case, Plaintiff cannot survive summary

judgment on the causation element of his claims.

Plaintiff's toxicology evidence consists of: (1) a letter from

a Dr. George R. Schwartz to Plaintiff indicating that there

is a causal connection between exposure to oil mist and his

pulmonary problems; (2) a statement by a Mr. James

Lindsey; and (3) a list of mineral oil toxicity publications.

See Exhibits to Pl.'s Resp. and Pl's Amend. Resp. (Docs. 100

& 101).

Under FED. R. Civ. P. 56(e), an affidavit must

affirmatively show that the affiant is competent to testify

as to the matters stated therein. No such showing has

been made for either Dr. Schwartz or Mr. Lindsey.

Additionally, in Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1984), the Supreme Court held that although the non-

movant's evidence need not be in "a form admissible at

trial," the party must be able to prove the underlying facts.

An expert's affidavit submitted in connection with a

motion for summary judgment must state the factual basis

for the opinion. Neither Dr. Schwartz’ letter nor

Mr. Lindsey's statement provide the required factual basis.

Plaintiff fails to submit any additional evidence that

would create a genuine issue over causation. Plaintiff's

submission of a photocopied list of mineral oil

publications is insufficient. None of the complete excerpts

suggest a tie between fibrosis and the oil exposure.

Consequently, Defendants' Motion for Summary

Judgment will be granted.

Wherefore.

IT IS HEREBY ORDERED that Plaintiff's Objections to

Magistrate Judge's Order Denying Further Extensions,

filed April 26, 1999 (Doc. 92), are overruled.

IT IS FURTHER ORDERED that Defendants' Motion

for Summary Judgment, filed May 26, 1999 (Doc. 98), is

granted.

DATED this 28th day of June, 1999.

CHIEF UNITED STATES DISTRICT JUDGE

Counsel for Plaintiff: Ramon M. Martinez, Pro se

Albuquerque, New Mexico

Counsel for AT&T Theresa W. Parrish

Rodey, Dickason, Sloan

Akin & Robb, P.A.

Albuquerque, New Mexico

Counsel for American Oil: | Norman L. Gagne

Butt, Thornton & Baehr. P.C.

Albuquerque, New Mexico _

Filed April 16, 1999 10:27

Document No. 91

US District Court

District of New Mexico

Digital File Stamp

Case: 97cvOO523

Title: Martinez v. American Oil

Document Type: Order

Document Number: 91

Description: ORDER by Magistrate Judge

Lorenzo F. Garcia Denying

Further Extensions

Total Pages: 4

Exhibits/ Attachment: | 0

Court Signature: 61 c4 8f 3a 9b fb b0 Ob cb 19 3d

dO 9c c3 2a d7 c5 5e 6c 22 c0 44

aa e7 4a db 4a 68 1d cc 40 af e0

4b a5 le d9 55 cc cc 8d 12 02 2

dd 9a 92 65 e6 d4 7f cc aa 67 47

e4 el 6d 45 fO e7 3b 80 9b

This document constitutes an official stamp of the Court

and, if attached to the document identified above, serves

as an endorsed copy of the pleading. It may be used in

lieu of the Court's mechanical file stamp for the named

document only, and misuse will be treated the same as

misuse of the Court's official mechanical file stamp. 'Me

Court's digital signature is a verifiable mathematical

computation unique to the filed document and the Court's

private encryption key. This signature assures that any

change can be detected.

-IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO _

RAMON H. MARTINEZ,

Plaintiff,

vs. No. CIV 97-523 JC/LFG

AMERICAN OIL AND SUPPLY

COMPANY et al.,

Defendants.

ORDER DENYING FURTHER-EXTENSIONS

THIS MATTER is before the Court on Plaintiff, Ramon

H. Martinez's ("Martinez") renewed motion for extension

and request to establish new case management deadlines.

At present, Martinez is proceeding as a pro se litigant, but

has attorneys, Guebert and Yeomans, P.C., who are willing

to enter an appearance and represent Martinez should the

Court agree to extend existing deadlines and establish new

case management deadlines calling for new discovery,

expert reports, motion practice and a new trial. This

would, in effect, wipe the present case management slate

clean and the Court and parties would start anew.

Defendants oppose the request. (See letters dated April

12, 1999, which are made part of the court file.)

This lawsuit was filed two years ago, on April 17, 1997.

Pursuant to the district's Civil Justice Expense and Delay

Reduction Plan promulgated under the Civil Justice

Reform Act, 28 U.S.C. 471 et seq., this case was assigned

to a "standard" case management track with a target

dispositional date of one year. That means that the case

should have been brought to final disposition by way of

settlement, motion or trial within one year from the date

the issues were joined by-answers.

Since then, Martinez sought and obtained numerous

extensions of time to perform certain acts called for by the

case management plan. For example, Martinez has been

afforded four prior extensions to designate his experts and

to produce expert reports in accord with the requirements

of Fed. R. Civ. P. 26. He has yet to comply. On three prior

occasions, the Court extended the discovery deadline and

all other case management deadlines. This case was set for

trial on three separate occasions, and is currently set for

trial on August 16, 1999.

Martinez's proposed attorneys would be his third set

since commencement of this litigation. Since withdrawal

of his last set of attorneys, Martinez has not made

mandatory Rule 26 expert disclosures. Depositions that

were scheduled prior to the discovery deadline were

vacated.

The Court sympathizes with Martinez and his

predicament. Should the Court deny his request, he is

faced with the onerous burden of representing himself in

an upcoming trial, and, worse, not having any expert to

assist him because of Martinez's failure to provide expert

reports. Yet, the Court may not disregard the significant

expenses already incurred by Defendants or the prejudice

they would suffer by granting Martinez's most recent

request.

Defendants have labored under the cloud of litigation

for two years. They have complied with the Court's case

management schedule, even submitting expert reports

without the benefit of Martinez's expert reports.

Defendants have been forced to accept delay and the ©

concomitant legal expenses that are part of a delayed

proceeding. Now, they are faced with the unpleasant and

expensive prospect of starting anew as if this case was

recently filed.

The prejudice to Defendants is real, not imagined. So

as to comply with Court schedules, they've retained

experts; they've incurred significant costs and have now

disclosed their defense theories. Should the Court allow

this case to commence, as if new, Defendants' work

product may well be useless or, at the very least, severely

compromised.

Martinez's on-again, off-again status with various law

firms has caused significant delays in the disposition of

this case. It has been necessary to vacate depositions to

accommodate Martinez's, new attorneys, only to have

them withdraw from the litigation. The Court has

repeatedly admonished Martinez about his responsibilities

to comply with the rules of civil procedure, the Court's

orders and directives, and the case management plan.

Notwithstanding those admonitions and directives,

Martinez has failed to comply. Martinez's predicament is

not caused by any Defendant, yet, in seeking to extricate

himself from the difficulties of pro se representation,

Defendants would be forced to bear the burden of ongoing

litigation, additional costs and delays. This case is more

than one year past the dispositional target required by the

district's Civil Justice Expense and Delay Reduction Plan.

Granting the motion would result in another year's delay.

That would be unconscionable. It is simply unfair to foist

such a burden on the Defendants.

The Court concludes that Martinez' request to extend

present deadlines and to establish new case management

deadlines, calling for new discovery, expert reports and

motion practice is inappropriate and is denied. The Court

will allow the parties to take depositions that were

scheduled within the discovery deadlines, but vacated

because of Martinez's pro se status.

Lorenzo F. Garcia

United States Magistrate Judge

. Filed June 09, 1998 11:22

Document No. 52

US District Court

District of New Mexico

Digital File Stamp

Case: 97cv00523

Title: Martinez v. American Oil

Document Type: Order

Document Number: 52

Description: ' ORDER by Magistrate Lorenzo

F. Garcia of conditional

withdrawal of Pltf's counsel

and extension of case

management deadlines

Total Pages: 2

Exhibits/Attachment: | 0

Court Signature: 98 9d c3 54 6d 17 65 81 56 01 74

fb 43 b2 d3 5b 45 34 b4 29 d7 Oe

f3 e0 76 8b b5 3d 87 £9 5b 8b da

81 14 7f b3 b8 42 75 £3 0c 80 5c be

67°c9 40 c6 71 74 d9 17 8b 7c df

64 65 7d 85 eb el f7 ea

This document constitutes an official stamp of the Court

and, if attached to the document identified above, serves

as an endorsed copy of the pleading. It may be used in

lieu of the Court's mechanical file stamp for the named

document only, and misuse will be treated the same as

misuse of the Court's official mechanical file stamp. The

Court's digital signature is a verifiable mathematical

computation unique to the filed document and the Court's

private encryption key. This signature assures that any

change can be detected.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

RAMON H. MARTINEZ,

Plaintiff,

VS. No. CIV 97-523 JC/LFG

AMERICAN OIL AND SUPPLY

COMPANY et al.,

Defendants.

ORDER OF CONDITIONAL WITHDRAWAL

AND EXTENSION OF CASE

MANAGEMENT DEADLINES

THIS MATTER is before the Court on a conference call

' hearing concerning case management deadlines and a

pending motion to withdraw as counsel for the Plaintiff.

This case has been significantly delayed, and at the last

Rule 16 conference conducted, the Court established case

management deadlines so as to bring this matter to

conclusion within a specified amount of time. To facilitate

motion practice, the Court authorized a bifurcated

deposition of the Plaintiff with the first portion being

limited to preliminary issues necessary for Defendant's

proposed motions to dismiss or for summary judgment.

The first portion of the deposition is scheduled in late

June. Completion of this deposition is necessary to allow

Defendants to proceed on their proposed motion practice.

Subsequent to the Rule 16 conference, Plaintiff's

counsel served a motion to withdraw. In a private

conference between Plaintiff's counsel and Court,

conducted with the consent of opposing counsel, the Court

learned that there is no conflict of interest, lack of

cooperation, or philosophical disagreement between client

NW

and counsel on the processing of this case. Rather, the

reason for the motion to withdraw is based on economic

considerations concerning the costs of litigation. Under

these circumstances, the Court deems it appropriate to

delay the withdrawal of counsel until after completion of

the first portion of the deposition scheduled for June.

Plaintiff's counsel shall proceed with that deposition, and,

subsequent to the completion of the deposition, will be

authorized to withdraw.

In the interim, Plaintiff is directed to proceed with

good-faith efforts to secure substitute counsel. In the

event he does not secure substitute counsel by the date of

withdrawal of present counsel, Plaintiff will be deemed to

be representing himself in a pro se capacity. Plaintiff will

nonetheless be obligated to comply with all rules of

practice and procedure, discovery obligations, and motion

practice requirements as applicable to any licensed

member of the bar.

So as to minimize the expenses to Plaintiff and

Defendants pending completion of the upcoming

deposition, the Court will extend the expert report

disclosure and report production deadline by thirty days.

Similarly, the Court will extend discovery by thirty days.

However, all other deadlines remain in full force and

effect.

Lorenzo F. Garcia

United States Magistrate Judge