Opposition Brief — Lampkin-Asam v. Volusia County School Board (No. 07-1359)

| ae . _~— -—«-

() ° FILED

!

| MAY 29 238

No.07:1359;

i eae 8

IN THE

Supreme Court of the ¥nited States

JULIA McCAIN LAMPKIN-ASAM,

Petitioner,

v.

VOLUSIA COUNTY SCHOOL BOARD, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED States Court oF APPEALS

FOR THE ELEVENTH CIRCUIT

,

EE Site

4 . at Nee

2 hi A h bea eo iin —

~ 6.5 % 209,

} iy tee ee oes

ccs ow

BRIEF IN OPPOSITION FOR

RESPONDENT SUZANNE EVANS, R.N.

H. MicuagEt Muniz

Appellate Counsel

Law OFFICES OF

STEVEN M. ZIEGLER, PA.

4000 Hollywood Boulevard

Presidential Circle, Suite 375 So.

Hollywood, Florida 33021

hmichael.muniz@smzpa.com

Telephone: (954) 966-2696

Facsimile: (954) 966-2446

Attorneys for Respondent

Suzanne Evans, R.N.

216113 g

COUNSEL PRESS

(800) 274-3321 + (800, 359-6859

II.

Il.

1

QUESTIONS PRESENTED

Whether Petitioner presented any compelling

reason to enable this Court to exercise its certiorari

jurisdiction and reach the merits of the case, where

Petitioner failed to not only establish but address

any of the requisites of Rule 10 or otherwise?

Whether Petitioner presented any compelling

reason for this Court to exercise its certiorari

jurisdiction and reach the merits of the case, where

Petitioner, just as she did in the lower court,

presented a petition that was unintelligible?

Whether Petitioner’s claims against Respondent

Evans failed, as a matter of law?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

TIRE GOIN LINED oe cc iecncececsendecs ii

TABLE OF CITED AUTHORITIES ......... iii

STATEMENT OF THE CASE ............... 1

ST BIE oo i plc kg a's od ve She ROOK 4

REASONS FOR DENYING THE PETITION ... 5

I. No Basis Was Established by Petitioner

to Enable the Court to Exercise Its

Certiorari Jurisdiction. ................ 5

II. The Instant Petition, Like Petitioner’s

Pleadings Below, Was Unintelligible..... 14

III. Petitioner’s Claims Against Respondent

Evans Failed, as a Matter of Law. ...... 18

A. Plaintiff Failed to Allege Facts

Sufficient to Support Requisite that

Evans Was a State Actor. .......... 19

B. Plaintiff Had Not Alleged Facts

Sufficient to Support a Cause of

Action Against Evans. ............. 21

EY. 6d CON 0 85S bo 5 06 oe ee 8 pees em 23

itt

TABLE OF CITEDAUTHORITIES

Page

Cases

2025 Emery Highway, L.L.C. v. Bibb County,

377 F.2d 1310 (M.D. Ga. 2005) .............. 2

Allen v. State, 598 So. 2d 1031 (Ct. App. Ala.

RO i aac es pay tee inca wemiususs 9

Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S.

MN ee iid ies Aes VA KAREN e RENEE 20, 22

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) .. 5

Arizona v. Evans, 514 U.S. 1 (1995) .......... 4

Asam v. Ala. State Bar, 519 U.S. 982 (1996) ... 6, 23

Asam v. Ala. State Bar, 675 So. 2d 866

a a he 8, 10, 15, 23

Asam v. Capps Trailer Sales, Inc., 631 So. 2d

See: Ch PI, Be BD ovo vc oc eccveriosenes 8

Asam v. City of Tuscaloosa, 506 U.S. 1033

NS £20k bbb ude hidiic dls da kchalehed Kase kp a 6

iv

Cited Authorities

Asam v. City of Tuscaloosa, 907 F.2d 11438

CE IE ok ih kbs Civ eouebes shrews

Asam v. City of Tuscaloosa, 912 F.2d 1470

CR te a Fok cheb as Choe kaos

Asam v. City of Tuscaloosa, 585 So. 2d 60

Se I AONE). has hiv siewhe caer saseenes

Asam v. City of Tuscaloosa, 599 So. 2d 1192

CCR a FI CE Se oe Sas ESSE tees

Asam v. Devereaux, 520 U.S. 1265 (1997) ......

Asam v. Devereaux, 686 So. 2d 1222 (Ala. 1996)

oepervreeeneeereenereeneneeeeeneeeeeeereeeeeeeeeeeeee @

Asam v. Disciplinary Bd. of the Ala. State Bar,

Oe Shae Sn COD os So vv So Seba eka

Asam v. Disciplinary Bd. of the Ala. State Bar,

Se SE EE ceeds Rulee nada ed a's

Asam v. Hancock, 522 U.S. 983 (1997) ........

Asam v. Harwood, 511 U.S. 1078 (1994) .......

Asam v. Harwood, 513 U.S. 826 (1994) ........

Asam v. Harwood, 19 F:3d 36 (11th Cir. 1994) ....

\

Vv

Cited Authorities

\

Asam v. Lee County Dist. Sch. Bd. as U.S. 1083

CE a Api eniits hu den cure aees ' ayes Eee ee

Asam v. Lee County Dist. Bd., 816 F.2d 686

Ger Ce WD |... oni... c ce: Beas

Asam v. Lee County Dist. Sch. Bd., 484 U.S. 951

EERE ERSRCES SEH: VA ASFIne Ry eg Ce Ne

Asam v. Norris, 520 U.S. 1265 (1997) .........

Asam v. Norris, 691 So. 2d 1056 (Ala. 1996) ...

Asam v. Owens, 522 U.S. 862 (1997) ...........

Asam v. Owens, 113 F.3d 1251 (11th Cir. 1997) ...

Asam v. Ryan, 520 U.S. 1275 (1997) ..........

Asam v. Ryan, 106 F.3d 417 (11th Cir. 1997) ...

Asam v. Sexton, 79 F.3d 1159 (11th Cir. 1996) ..

Asam v. Shapiro, 488 U.S. 1024 (1989) ........

Asam v. Shapiro, 489 U.S. 1073 (1989) ........

Asam v. Shapiro, 858 F.2d 744 (11th Cir. 1988)

e*eeeeeeeeeeveeeeeeeeeeeneeeseeeeeneseeeeeeeee ee

vi

Cited Authorities

Page

Asam v. Stanley, 459 U.S. 1189 (1983) ........ 6

Asam v. Stanley, 459 U.S. 859 (1982) .......... 6

Asam v. V.A., 168 F.3d 507 (11th Cir. 1999) ..... 7-8

Asam v. V.A., 176 F.3d 496 (11th Cir. 1999) ..... 8

Asam v. Vreeland, 51 F.3d 1051 (11th Cir. 1995) ;

Bishop v. Southrail Corp., 595 So. 2d 857

RSS NRA UAE eS ee EE 9

Blum v. Yaretsky, 457 U.S. 991 (1982) ........ 20, 22

Boag v. MacDougal, 454 U.S. 364 (1982) .. 12, 13,14

Brooks v. Blue Cross & Blue Shield of Fla., Inc.,

116 F.3d 1364 (11th Cir. 1997) .............. 22

Brown v. Morris, 593 So. 2d 59 (Ala. 1992) .... 9

Burton v. Wilmington Parking Auth., 365 U.S.

EES ERE CA 19

Bus. Alliance for Responsible Dev. v. Storm

Water Mgmt., 462 F. Supp. 2d 1186 (N.D. Ala.

TREES a ea 21

aE

oe

vil

Cited Authorities

Page

Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S.

kL) IRRRURRMESS Tat che Sean pe pee gee eS 7

Civil Rights Cases, 109 U.S. 3 (1883) ......... 20

Conley v. Gibson, 355 U.S. 41 (1957) .......... 18

Cryder v. Oxendine, 24 F.3d 175 (11th Cir. 1994)

se ieee i cite arin ch i a oe a 19

Davis v. Prudential Sec., Inc., 59 F.3d 1186

Rae NR a i as Dik Gers ck who ewes Kuga 19

Ta i FG, OAS US. TID IB): se oo cine cee venience 7, 23

Delta Airlines, Inc. v. August, 450 U.S. 346

Ce a oy Nay ee 10

“stelle v. Gamble, 429 U.S. 97 (1976) ........ 3, 7, 10

Ex parte Asam, 681 So. 2d 650 (Ala. 1996) ..... 8

Ferguson v. Moore-McCormack Lines, Inc.,

Se Sh NE: (hrs Wane acecd en kaevs ox 7

Focus on the Family v. Pinellas Suncoast

Transit Auth., 344 F.3d 1263 (11th Cir. 2003)

Lea H ASS COREA LAA Kk ae Laas Os tr EE Ces 19

Gant v. Gant, 562 So. 2d 1347 (Ct. App. Ala.

EN obs Vesa haed £00k Vande oh eemaehaee 9

Vili

Cited Authorities

Page

Garner v. Barnett, 576 So. 2d 284 (Ala. 1991) .. ]

Garner v. Walker, 577 So. 2d 1276 (Ala. 1991) .. 9

GJR Inv. Inc. v. County of Escambia, 132 F.3d

SOR ALI Ce BO is okies sakdeeceretns 10

Haines v. Kerner, 404 U.S. 519 (1972) ......... 11

Hishon v. King & Spaulding, 467 U.S. 69

CON sc COS OU UEU UTA yy hae cs eee emo ee 18

Hubbard v. United States, 514 U.S. 695 (1995) e

I.T.S. Rubber Co. v. Essex Rubber Co., 272 U.S.

SO CE ini hbk bis REA ew as 17

In re Asam, 117 F.3d 1482 (11th Cir. 1997) ..... 8

In re Asam, 484 U.S. 1021 (1988) ............. 6

In re Asam, 484 U.S. 909 (1987) .............4. 6

In re Asam, 519 U.S. 981 (1996) ethan deeeeoen 6

In re McDonald, 489 U.S. 180 (1989) .......... 7

In re Vey, 520 U.S. 303 (1997) ............085. 23

ix

Cited Authorities

Jairath v. Dyer, 154 F.3d 1280 (11th Cir. 1998) ...

Johnson v. Citizens State Bank, 587 So. 2d 96

NE i ie Nalini cd anise whinieen heer

Kay v. Ehrler, 499 U.S. 482 (1991) ............

Lampkin-Asam v. District Court of Appeal,

364 So. 2d 469 (Fin. 1978) ....cccccccecccacs

Lampkin-Asam v. Dunning, 358 So. 2d 1201

RE | ene reed oe

Lampkin-Asam v. FTP-NEA Union, 451 U.S.

ae vet Lia y's ceddivi ne aman ne’

Lampkin-Asam v. FTP-NEA Union, 453 U.S.

ak Saye Ca wah nb we Ga Chae we

Lampkin-Asam v. Lee County Sch. Bd., 404

So. 2d 869 (Fla. Ist DCA 1981) .............

Lampkin-Asam v. Miami Daily News, Inc.,

408 So. 2d 666 (Fla. 3d DCA 1982) ..........

Lampkin-Asam v. Miami Daily News, Inc.,

417 So. 2d S29 (Fla. 1962) ........cccceveees

Lampkin-Asam v. Miami Daily News, Inc.,

ME OE i oon piaag ke bana dn¥desss

Page

4

x

Cited Authorities

Page

Lampkin-Asam v. Miami Daily News, Inc.,

SOD TE Fe DA CME) vik vc ddan rvdivigedsccee 6

Lampkin-Asam v. Supreme Court of Fia.,

GOR AEs SURO cccdcsccduccsacucdeees 6

Lampkin-Asam v. Supreme Court of Fla.,

BEDE Te CEE ide dedeasevesceant sa 6

Lampkin-Asam v. Supreme Court of Fla.,

601 F.2d 760 (Sth Cir. 1979) ................ 8-9

Lampkin-Asam v. Volusia County Sch. Bd.,

No. 07-12704, WL 80708 (11th Cir. Jan. 9,

PN Ree GN ere ye es boy wae eu eS passim

Lampkin-Asam v. Volusia County Sch. Bd.,

No. 6:07-cv-116-Orl-31DAB, WL 1129002

COE Ws I ER obi cos ceecerscwesec 1,2

Lampkin-Asam v. Volusia County Sch. Bd.,

No. 6:07-cv-116-Orl-31DAB, WL 1577814

(M.D. Fla. May 16, 2007) ................ 2, 4, 10

Lugar v. Edmondson Oil Co., 457 U.S. 922

SE ica has Gh coucdwh awa as Kane Mabon 19, 20, 22

Marek v. Chesny, 473 U.S. 1 (1985) ........... 9

Marine Coatings of Ala., Inc. v. United States,

792 F.2d 1565 (11th Cir. 1986) .............. 18

xi

Cited Authorities

Page

Marshall County Bd. of Educ. v. Marshall

County Gas Dist., 992 F.2d 1171 (11th Cir.

IE es oe esa eA hae ee had eunke sees 18

McNeil v. United States, 508 U.S. 106 (1993)

AS CSRS CaCI 22 en eae ne ge pete ND Yt yA Se 4,11, 16

Merrell Dow Pharm., Inc. v. Thompson,

SO RROD sv oie k's cnc sco ee iene oe 21

Morrison v. Morgan Stanley Properties,

No. 06-80751-CIV, WL 149975 (S.D. Fla. Jan.

a cori er a hae vase u wean ne 4

N.L.R.B. v. Sands Mfg. Co., 306 U.S. 332 (1939)

PAE SRN NRL UREN TR pO BREST DRA CRO EO POE Ea 17

Nat’l Collegiate Athletic Ass’n v. Tarkanian,

Me TIO oa 0 05s-5 0d ca iccieueneece es 19

Nelson v. Adams USA, Inc., 529 U.S. 460

a 17

Nelson v. Univ. of Ala. Sys., 594 So. 2d 632

EER, aS SR ee ES pe 9

Shelley v. Kraemer, 334 U.S. 1 (1948) ........ 20, 22

State of Md. v. Baltimore Radio Show, 338 U.S.

as ee rie Ba Baal 6

xii

Cited Authorities

Page

Stokes v. Hatch, 510 U.S. 1115 (1994) ......... 6

Waters v. Hipp, 600 So. 2d 981 (Ala. 1992) ..... 9

Waters v. Univ. of Ala. Hosp., 591 So. 2d 450

RN NE a a i Ces dislbin ad adn eoew 9

Williams v. Capp Trailer Sales, 589 So. 2d 159

I oy ed a awe ae wie kee’ 9

Williams v. Capps Trailer Sales, Inc., 607 So.

pS og A te SG | - 4 9

Williams v. City of Northport, 557 So. 2d 1272

CF FR IE 86 bs Ge wkb kclemasancucess 9

Yee v. City of Escondido, 503 U.S. 519 (1992) .. 12

Zlotnick v. Premier Sales Group, Inc., 480 F:3d

ee es 22

xiii

Cited Authorities

Page

Constitutional Provisions, Statutes, Rules

and Treatises

Rie ee IR oss cc cccavescuecsess 16, 17

Re Re IY occ ects ccdvus cues 16, 17

USCA Omens. RIV ww. cece eens passim

Re IE 6 is ss occa os ee cnn nnuw eebwes 5

5k SA er rere rere re ae 4

2 error Terre 3, 4, 16, 19, 20

§ 119.011, Florida Statutes (2007) ........... 16, 17

§ 440.134, Florida Statutes (2007) ............ 21

6 ne errr ree Tse 3, 4

OEE OEE isk deceeanws beens ces cng bess 3

oc iekv ns vac ev veweansaedenss ee GS

a Oy icone Ko ou biurs eeeae ees 17

EUGENE GRESSMAN, ET AL., SUPREME COURT

PMP Ce GE PE 6 6 ob ods cv shed iecec’s 5,12

1

STATEMENT OF THE CASE

The instant Petition primarily concerns the adverse,

yet just, result obtained by a former attorney’s repeated

failure to abide by governing federal rules of civil

procedure, in addition to failing to comply with the

district court’s orders. Petitioner’s failures occurred in

the midst of presenting her pro se pleadings to the

federal trial court.

Petitioner, Plaintiff below, filed suit in the Middle

District of Florida during January 2007. Her first

pleading was dismissed on Respondents’ motions to

dismiss because “it was disjointed, repetitive,

disorganized and barely comprehensible.” Lampkin-

Asam v. Volusia County Sch. Bd., No. 6:07-cv-116-Orl-

81DAB, WL 1129002, at *1 (M.D. Fla. Apr. 16, 2007).

In its initial order, the district court concluded

[i]t is impossible for the Court to decipher

which claims are brought against which

parties under which counts. Plaintiff

purportedly [holds] J.D. and Ph.D. degrees,

and practiced as an attorney in Alabama until

she was disbarred. While federal courts

typically grant greater latitude to the

pleadings of pro se plaintiffs, the complaint

filed in this case is unacceptable by any

standard, and particularly from a former

attorney.

Id.

2

Plaintiff followed her initial pleading with an

amended complaint which, like the first, was also

“disjointed, repetitive, disorganized and barely

comprehensible.” Jd. The district court could not

“unravel th[e] document, and the Defendants should not

be required to respond to it.” Id.; see 2025 Emery

Highway, L.L.C. v. Bibb County, 377 F.2d 1310, 1317

(M.D. Ga. 2005) (concluding the court’s attempt to,

essentially, understand plaintiff’s pleading was “no more

successful than an attempt to herd cats”). Nevertheless,

Plaintiff was permitted another opportunity to amend

her pleading but, at the same time, admonished that

she must satisfy the requirements of the Federal Rules

of Civil Procedure. Lampkin-Asam v. Volusia County

Sch. Bd., No. 6:07-cv-116-Orl-31DAB, WL 1129002, at

a =

Plaintiff then filed her third pleading, or a second

amended complaint. Lampkin-Asam v. Volusia County

Sch. Bd., No. 6:07-cv-116-Orl-81DAB, WL 1577814, at

*1 (M.D. Fla. May 16, 2007). Yet, again, Plaintiff’s third

pleading was “a 26-page labyrinth of claims, counts,

accusations and repetition.” Jd. at *2. The district court

concluded that “litigation framed by such a pleading

would certainly waste scarce judicial and parajudicial

resources, impede the due administration of justice and,

in avery real sense, amount to an obstruction of justice.”

Id. Having been forewarned, not once but twice on the

same issue by the district court, Plaintiff’s third pleading

was dismissed with prejudice.! /d.

' The district court stated in its two reported decisions that

it acted sua sponte, which it has the rule and inherent authority

(Cont’d)

3

On appeal to the Eleventh Circuit, the court of

appeals observed that “[iJn her second amended

complaint, [Plaintiff] sought relief under 42 U.S.C.

§ 1983” based upon a student hitting her in the back of

the head while she, a substitute teacher, was teaching

math at Deltona Middle School. Lampkin-Asam v.

Volusia County Sch. Bd., No. 07-12704, WL 80708, at

*1 (11th Cir. Jan. 9, 2008) (per curiam). “The complaint

alleged, among other things, that those defendants

violated her Fourteenth Amendment due process

rights.” Id.

Upon de novo “review of Lampkin-Asam’s second

amended complaint, (the court] agree[d] with the district

court that it is confusing, incoherent, and clogged with

seemingly irrelevant factual allegations.” Lampkin-

Asam v. Volusia County Sch. Bd., No. 07-12704, WL

80708, at *2 (11th Cir. Jan. 9, 2008) (per curiam).

Accordingly, the court of appeals affirmed the judgment

of the district court, concluding that Plaintiff had

sufficient opportunity to correct the deficiencies in her

pleadings and “as a former attorney and person who

possess[es] formal legal training, should have been able

to draft a complaint that complies with Rule 8.” Jd.;

(Cont'd)

to do. Lampkin-Asam v. Volusia County Sch. Bd., No. 07-12704,

WL 80708, at *2 (11th Cir. Jan. 9, 2008) (per curiam) (providing,

in relevant part, “district courts have a supervisory obligation,

under Rule 12(e), to swa sponte direct a plaintiff to better plead

his [or her] complaint”); see Estelle v. Gamble, 429 U.S. 97, 98

(1976) (“The District Court, sua sponte dismissed the complaint

for failure to state a claim upon which relief could be granted.”).

The record reveals the defendants filed multiple motions and

memoranda to dismiss against each pleading filed.

4

Lampkin-Asam v. Volusia County Sch. Bd., No. 6:07-

ev-116-Orl-81DAB, WL 1577814, at *2 n.2 (M.D. Fla.

May 16, 2007) (“Although proceeding pro s<, the Plaintiff

claims to hold both Ph.D. and J.D. degrees. As a (former

attorney,] substitute teacher and cancer scientist, she

ostensibly has the education, training and experience

to be capable of drafting a coherent complaint.”); see

Morrison v. Morgan Stanley Properties, No. 06-80751-

CIV, WL 149975, at *3-*6 (S.D. Fla. Jan. 14, 2008)

(addressing inadequacies of typical, pro se pleading and

finding Eleventh Circuit’s decision in Lampkin-Asam

v. Volusia County Sch. Bd. instructive).

The unrelenting Petitioner then proceeded to seek

certiorari review in this Court notwithstanding that, at

this juncture, the district court as well as the three-judge

appellate panel, or four federal judges, had found

Plaintiff’s third pleading legally insufficient, defective

and rule non-compliant. Fp. R. Crv. P 8(a); see McNeil

v. United States, 508 U.S. 106, 113 (1998) (discussed

infra).

JURISDICTION

“Federal courts have original jurisdiction of all civil

actions that arise under the Constitution or laws of the

United States.” Jairath v. Dyer, 154 F.3d 1280, 1282

(11th Cir. 1998) (citing, 28 U.S.C. § 1331). Additionally,

the United States Supreme Court is the final arbiter of

the U.S. Constitution, as well as issues arising under

federal law, such as Petitioner’s claims under 42 U.S.C.

§ 1983 and the 14th amendment of the U.S. Constitution.

Arizona v. Evans, 514 U.S. 1, 8 (1995). Petitioner also

invoked the Court’s certiorari jurisdiction under

5

28 U.S.C. § 1254(1),? and Respondent does not dispute

that the Court has jurisdiction to determine its own

jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500,

514 (2006) (“Moreover, courts, including this Court, have

an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence

of a challenge from any party.”).

REASONS FOR DENYING THE PETITION®

I. No Basis Was Established by Petitioner to Enable

the Court to Exercise Its Certiorari Jurisdiction.

Without exception, just like her profusive filings in

this Court before the instant Petition, the pro se

Petitioner, who (obviously) is no stranger before this

Court, has once again failed to present a “compelling

reason” to enable the Court to exercise its certiorari

jurisdiction. Sup. Ct. R. 10; EUGENE GRESSMAN, ET AL.,

SUPREME Court PRACTICE § 4 (9th ed. 2007); see, e.9.,

Asam v. Hancock, 522 U.S. 983 (1997) (denying cert.);

Asam v. Owens, 522 U.S. 862 (1997) (denying cert.);

Asam v. Ryan, 520 U.S. 1275 (1997) (denying cert.);

Asam v. Norris, 520 U.S. 1265 (1997) (denying cert.);

Asam v. Devereaux, 520 U.S. 1265 (1997) (denying cert.);

Asam v. Disciplinary Bd. of the Ala. State Bar, 519 U.S.

2 Petition, at p. i, Question Presented No. I.

3 The arguments presented by Respondent are not

intended to be nor are they directed at Petitioner per se but,

rather, are directed at Petitioner’s decisions to appeal the

district court’s as well as the Eleventh Circuit’s judgments, all

the while proceeding pro se. Infra note 8.

6

814 (1996) (denying cert.), reh’g denied, 519 U.S. 1001

(1996); In re Asam, 519 U.S. 981 (1996) (denying cert.);

Asam »v. Ala. State Bar, 519 U.S. 982 (1996) (denying

cert.); Asam v. Harwood, 513 U.S. 826 (1994) (denying

cert.); Asam v. Harwood, 511 U.S. 1078 (1994) (denying

cert.); Stokes v. Hatch, 510 U.S. 1115 (1994) (denying

cert.); Asam v. City of Tuscaloosa, 506 U.S. 974 (1992)

(denying cert.); Asam v. City of Tuscaloosa, 506 U.S.

1033 (1992) (denying cert.); Asam v. Shapiro, 488 U.S.

1024 (1989) (denying cert.), rek’g denied, 489 U.S. 1073

(1989); Asam v. Lee County Dist. Sch. Bd., 484 U.S. 951

(1987) (denying cert.), reh’g denied, 484 U.S. 1083 (1988);

In re Asam, 484 U.S. 909 (1987) (denying cert.), reh’g

denied, 484 U.S. 1021 (1988); In re Asam, 484 U.S. 909

(1987) (denying cert.), reh’g denied, 4° U.S. 1021 (1988);

Lampkin-Asam v. Miami Daily Ne .s, Inc., 459 U.S.

806 (1982) (denying cert.), reh’g denved, 459 U.S. 1189

(1983); Asam v. Stanley, 459 U.S. 859 (1982), reh’g

denied, 459 U.S. 1189 (1983); Lampkin-Asam v. FTP-

NEA Union, 451 U.S. 978 (1981) (denying cert.), reh’g

denied, 453 U.S. 923 (1981); Lampkin-Asam v. Supreme

Court of Fla., 444 U.S. 1013 (1980) (denying cert.), reh’g

denied, 444 U.S. 1103 (1980).

If the Court declines to exercise its certiorari

jurisdiction, as it should, the Court would not reach the

merits of the case. State of Md. v. Baltimore Radio Show,

338 U.S. 912, 919 (1950) (Frankfurter, J., respecting the

denial of the petition for writ of certiorari)

(“Inasmuch, therefore, as all that a denial of

a petition for a writ of certiorari means is that

fewer than four members of the Court thought

it should be granted, this Court has

MIE SE Se ETE EL Tf Sead Pe eh RE oe ap ee

7

rigorously insisted that such a denial carries

with it no implication whatever regarding the

Court’s views on the merits of a case which it

has declined to review. The Court has said this

again and again; again and again the

admonition has to be repeated.”)

cf. Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S.

660, 673 (1990) (Rehnquist, C.J., concurring) (“But the

Court by its grant of certiorari has decided that the case

should be considered on the merits.”); (citeng, Ferguson

v. Moore-McCormack Lines, Inc., 352 U.S. 521, 559

(1957) (Harlan, J., dissenting)); Estelle v. Gamble, 429

U.S. 97, 115 n.9 (1976) (Stevens, J., dissenting)

(questioning why certiorari was granted where the case

merely involved well-settled principles “at a time when

the Court is thought by many to be burdened by too

heavy a caseload”).

Similar to the burden Petitioner has placed on this

Court over multiple decades,* the Eleventh Circuit’s

judicial landscape has been littered with filings by

Petitioner, the majority of the time filed pro se over the

past thirty (30) years. See, e.g., Asam v. VA., 168 F.3d

4 Day v. Day, 510 U.S. 1, 2 (1993) (per curiam) (“Every

paper filed with the Clerk of this Court, no matter how

repetitious or frivolous, requires some portion of the

institution’s limited resources. A part of the Court’s

responsibility is to see that these resources are allocated in a

way that promotes the interests of justice.”) (citing, In re

McDonald, 489 U.S. 180, 184, (1989) (per curiam)).

“Consideration of Day’s repetitious and frivolous petitions for

certiorari does not promote this end.” Day, 510 U.S. at 2. Infra

note 8, 16.

See Lee PE OR ie f DES EAR CLAM Ee ge EAN RPDS Pines DOP PRESS PRA EY PRE RE REY EWN Ota eh SONNE ROR fee Re ELI, SCRE TiS eee Are SER ma Ae GER ERM RE Ce te”

8

507 (11th Cir. 1999), reh’g en banc denied, 176 F.3d 496

(11th Cir. 1999); In re Asam, 117 F.3d 1482 (11th Cir.

1997) (affirming without opinion); Asam v. Ryan, 106

F.3d 417 (11th Cir. 1997) (affirming without opinion);

Asam v. Owens, 113 F.3d 1251 (11th Cir. 1997) (affirming

without opinion); Asam v. Norris, 691 So. 2d 1056 (Ala.

1996) (affirming without opinion); Hx parte Asam, 681

So. 2d 650 (Ala. 1996) (denying cert.); Asam ».

Devereaux, 686 So. 2d 1222 (Ala. 1996) (per curiam)

(affirming trial court judgment); Asam v. Ala. State Bar,

675 So. 2d 866 (Ala. 1996) (affirming disbarment of

attorney Lampkin-Asam from Alabama State Bar, who

was admitted in 1988); Asam v. Sexton, 79 F.3d 1159

(11th Cir. 1996) (affirming without opinion); Asam ».

Vreeland, 51 F.8d 1051 (11th Cir. 1995) (affirming

without opinion); Asam v. Harwood, 19 F.3d 36 (11th

Cir. 1994) (affirming without opinion); Asam v. Capps

Trailer Sales, Inc., 631 So. 2d 251 (Ct. App. Ala. 1993)

(affirming trial court judgment awarding fees and costs

against then, Alabama-licensed attorney Asam); Asam

v. City of Tuscaloosa, 599 So. 2d 1192 (Ct. App. Ala.

1992) (affirming trial court judgment); Asam v. City of

Tuscaloosa, 585 So. 2d 60 (Ct. App. Ala. 1991)

(dismissing appeal for lack of jurisdiction); Asam v. City

of Tuscaloosa, 907 F.2d 1148 (11th Cir. 1990) (affirming

without opinion), reh’g en banc denied, 912 F.2d 1470

(11th Cir. 1990); Asam v. Shapiro, 858 F.2d 744 (11th

Cir. 1988) (affirming without opinion); Asam v. Lee

County Dist. Bd. , 816 F.2d 686 (11th Cir. 1987) (affirming

without opinion); Lampkin-Asam v. Miami Daily

News, Inc., 417 So. 2d 329 (Fla. 1982) (denying cert.);

Lampkin-Asam v. Lee County Sch. Bd., 404 So. 2d 869

(Fla. lst DCA 1981) (affirming without opinion);

Lampkin-Asam v. Supreme Court of Fla., 601 F.2d 760

9

(5th Cir. 1979) (per curiam) (affirming district court

judgment); Lampkin-Asam v. Dunning, 358 So. 2d 1201

(Fla. 3d DCA 1978) (dismissing 2ppeal).

In all but two of the identified, reported cases

wherein the former Alabama-licensed practitioner

represented an appellant, the results obtained were

virtually as dismal, as when Petitioner proceeded pro

se. See, e.g., Allen v. State, 598 So. 2d 10381 (Ct. App.

Ala. 1992) (affirming trial court judgment); Bishop v.

Southrail Corp., 595 So. 2d 857 (Ala. 1992) (affirming

trial court judgment); Waters v. Hipp, 600 So. 2d 981

(Ala. 1992) (affirming trial court judgment); Nelson v.

Univ. of Ala. Sys., 594 So. 2d 632 (Ala. 1992) (affirming

trial court judgment); Brown v. Morris, 593 So. 2d 59

(Ala. 1992) (per curiam) (affirming trial court judgment);

Williams v. Capps Trailer Sales, Inc., 607 So. 2d 1272

(Ct. App. Ala. 1992) (affirming virtually all of trial court’s

judgment); Waters v. Univ. of Ala. Hosp., 591 So. 2d

450 (Ala. 1991) (affirming trial court judgment);

Williams v. Capp Trailer Sales, 589 So. 2d 159 (Ala.

1991) (affirming trial court judgment); Gant v. Gant, 562

So. 2d 1847 (Ct. App. Ala. 1990) (affirming trial court

judgment); Williams v. City of Northport, 557 So. 2d

1272 (Ct. App. Ala. 1989) (affirming trial court

judgment); Garner v. Barnett, 576 So. 2d 234 (Ala. 1991)

(reversing and remanding); Garner v. Walker, 577 So.

2d 1276 (Ala. 1991) (same as Barnett).

In most circumstances, consistency is preferred,

even necessary and a highly regarded attribute. See

Marek v. Chesny, 473 U.S. 1, 21 (1985) (“We previously

have held that words and phrases in the Federal Rules

must be given a consistent usage and be read in pari

ewe tha ee

10

materia, reasoning that to do otherwise would attribute

a schizophrenic intent to the drafters.”) (Brennan, J.,

Marshall, J., Blackmun, J., dissenting) (citing, quoting

majority decision in Delta Airlines, Inc. v. August, 450

U.S. 346, 353 (1981)). However, little or no regard may

exist where a Petitioner has consistently failed to

demonstrate that certiorari jurisdiction lies, just as

Petitioner has again failed to demonstrate in this case.

Unlike most pro se litigants, Petitioner is not

without legal training, having obtained a legal education,

practiced law and been “a former member of the

Alabama State Bar.” Lampkin-Asam v. Volusia County

Sch. Bd., No. 07-12704, WL 80708, at *1-*2 & n.1 (11th

Cir. Jan. 9, 2008) (per curiam) (citing, Asam v. Ala. State

Bar, 675 So. 2d 866 (Ala. 1996) (discussed infra)).

Petitioner simply is not the typical pro se litigant,

Lampkin-Asam v. Volusia County Sch. Bd., No. 07-

12704, WL 80708, at *2, nor was she eligible for leniency

with respect to her pleadings because she affirmatively

claimed to hold a Juris Doctor degree. Lampkin-Asam

v. Volusia County Sch. Bd., No. 6:07-cv-116-Orl-31DAB,

WL 1577814, at *2 n.2 (M.D. Fla. May 16, 2007)

(discussed infra) (citing, Asam v. Ala. State Bar, 675

So. 2d 866 (Ala. 1996)). Pro se Petitioner, unlike others,

was not entitled the leniency afforded those litigants

without the benefit of a legal education. GJR Inv., Inc.

v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir.

1998) (“Courts do and should show a leniency to pro se

litigants not enjoyed by those with the benefit of a legal

education.”) (citation omitted); see Estelle v. Gamble,

429 U.S. 97, 106 (1976) (providing, in relevant part, “a

pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings

ROR Oe pee! RES, aE. ge te Ba

11

drafted by lawyers”) (citing, quoting Haines v. Kerner,

404 U.S. 519 (1972)). Accordingly, the Court should not

treat the instant Petition with any less stringent a

standard than it would when drafted by an attorney,

lawyer or other person claiming to have been legally

educated. /d.; see also McNeil v. United States, 508 U.S.

106, 113 (1993) (providing, in relevant part, “we have

never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes

by those who proceed without counsel”)

[I]n the present day federal court system...

review by this Court is almost entirely

discretionary .. . We receive nearly 7,000

petitions for certiorari every Term,* and can

grant only a tiny fraction of them. A high

degree of selectivity is thereby enjoined upon

us in exercising our certiorari jurisdiction and

our Rule 10 embodies the standards by which

we decide to grant review. One of the reasons

contained in Rule 10.1(a) is the existence of a

conflict between one court of appeals and

another. The negative implication of this

ground, borne out time and again in our

decisions to grant and deny certiorari, is that

ordinarily a court of appeals decision

interpreting one of our precedents-even one

deemed to be arguably inconsistent with it-

will not be reviewed unless it conflicts with a

decision of another court of appeals. This fact

5 The Court’s website currently discloses “more than 10,000

cases on the docket per term” or 43% more than the 1995 term.

12

is a necessary concomitant of the limited

capacity in this Court.

Hubbard v. United States, 514 U.S. 695, 720 (1995)

(Rehnquist, C.J., O’Connor, J., Souter, J., dissenting);

see Yee v. City of Escondido, 503 U.S. 519, 537 (1992)

(declining to consider question and acknowledging if a

conflict exists between the lower courts, “such a conflict

is, of course, a substantial reason for granting certiorari

under this Court’s Rule 10”).

Moreover, Petitioner failed to establish that the

Eleventh Circuit’s decision (i) was in conflict with the

decision of another United States court of appeals on

the same important matter; (ii) had decided an important

federal question in a way that conflicts with a decision

by a state court of last resort; (iii) had so far departed

from the accepted and usual course of judicial

proceedings as to call for an exercise of the Court’s

supervisory power; (iv) decided an important question

of federal law that has not been, but should be, settled

by the Court or conflicts with a decision of this Court;

or (v) presented any other sound, material basis for

certiorari review. Sup. Ct. R. 10; EUGENE GRESSMAN, ET

AL., SUPREME Court Practice § 4 (9th ed. 2007). In fact,

none of these factors which, generally, provide the basis

for the Court’s exercise of certiorari jurisdiction, were

even addressed in the subject Petition. Evidently,

Petitioner jumped right into the merits of the case,

without first substantively addressing and overcoming

the threshold, required issue of certiorari jurisdiction.

See Boag v. MacDougal, 454 U.S. 364, 366 (1982)

(O’Connor, J., concurring) (discussed infra).

13

... I find merit in Justice REHNQUIST’s

comments that this Court is not equipped to

correct every perceived error coming from the

lower federal courts.® The effectiveness of this

Court rests in part on its practice of deciding

cases of broad significance and of declining to

expend limited judicial resources on cases,

such as the present one, whose significance is

limited to the parties. In exercising our

discretionary certiorari jurisdiction, we should

not be influenced solely by the merits of the

petitioner’s case.

Boag v. MacDougal, 454 U.S. at 366 (O’Connor, J.,

concurring).

“The Supreme Court is not, and never’ has

been, primarily concerned with the correction

of errors in lower court decisions.’ In almost

all cases within the Court’s appellate

jurisdiction, the petitioner has already

received one appellate review of his [or her]

case. The debates in the Constitutional

Convention make clear that the purpose of the

establishment of one supreme national

tribunal was, in the words of John Rutledge

of South Carolina, ‘to secure the national

§ This aspect of the decision is not intended to be nor should

it be construed as an admission of error, where there was none,

by the Eleventh Circuit. Lampkin-Asam v. Volusia County Sch.

Bd., No. 07-12704, WL 80708 (11th Cir. Jan. 9, 2008) (per curiam).

7 Infra note 6.

14

rights & uniformity of Judgmts.’ The function

of the Supreme Court is, therefore, to resolve

conflicts of opinion on federal questions that

have arisen among lower courts, to pass upon

questions of wide import under the

Constitution, laws, and treaties of the United

States, and to exercise supervisory power

over the lower federal courts. If we took every

case in which an interesting legal question is

raised, or our prima facie impression is that

the.decision below is erroneous, we could not

fulfill the Constitutional and statutory

responsibilities placed upon the Court. To

remain effective, the Supreme Court must

continue to decide only those cases which

present questions whose resolution will have

immediate importance far beyond the

particular facts and parties involved.”

MacDougal, 454 U.S. at 368 (Rehnquist, C.J., White,

J., dissenting) (quoting former Chief Justice Vinson).

Having failed to address as well as overcome the

threshold certiorari jurisdictional issue, the Petition is

fatally flawed and destined for the same fate, as all her

other petitions; to wit: “cert. denied.” (citations omitted).

II. The Instant Petition, Like Petitioner’s Pleadings

Below, Was Unintelligible.

Reportedly, twice before being admitted to practice

law by the Alabama State Bar, 30 and 26 years ago,

respectively, Petitioner made prudent decisions to

engage counsel to represent her on two separate

15

matters on appeal.’ Lampkin-Asam v. District Court of

Appeal, 364 So. 2d 469 (Fla. 1978), receded from,

Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla.

1989); Lampkin-Asam v. Miami Daily News, Inc., 408

So. 2d 666 (Fla. 3d DCA 1982). The legal landscape does

not reflect or show that such a decision was ever again

made by Petitioner, just as in the case at bar.

Even a skilled lawyer who represents himself

[or herself] is at a disadvantage in contested

litigation.® Ethical considerations may make

it inappropriate for him [or her] to appear as

a witness. He [or she] is deprived of the

judgment of an independent third party in

framing the theory of the case, evaluating

alternative methods of presenting the

evidence, cross-examining hostile witnesses,

formulating legal arguments, and in making

sure that reason, rather than emotion,

dictates the proper tactical response in the

courtroom. The adage that “a lawyer who

§ Petitioner’s skills, as a lawyer, were found severely

lacking. Asam v. Ala. State Bar, 675 So. 2d 866, 867-79 (Ala.

1996) (quoting from Tuscaloosa lawyer’s letter that “Asam was

completely and hopelessly unqualified,” cautioning Asam that

“you need an attorney in the worst sort of way to represent you

in this hearing,” and affirming Alabama State Bar’s findings of

guilt on 17 of 28 charges including, znter alia, multiple violations

of rule requiring competent representation of a client, resulting

in her disbarment). Her qualifications to conduct cancer

research have also been assailed. Lampkin-Asam v. Miami

Daily News, Inc., 408 So. 2d 666, 667 (Fla. 3d DCA 1982).

® Infra note 8.

16

represents himself [or herself] has a fool for a

client” is the product of years of experience

by seasoned litigators."

Kay v. Ehrler, 499 U.S. 482, 437 (1991) (Stevens, J.,

delivering the opinion for a unanimous Court).

“Indeed, we have previously recognized a systematic

interest in having a party represented by independent

counsel even when the party is a lawyer.” McNeil v.

United States, 508 U.S. 106, 113 n.10 (1993) (citing, Kay

v. Ehrler, 499 U.S. 432 (1991)).

A few examples, excerpted from the subject Petition,

readily show its tortuous structure, lack of

arrangement, patent incoherency and inept character;

to wit: (i) within her first question presented Petitioner

provided, in part, “the U.S.Court [sic] of Appeals . . . by

affirming apparently never read the first three (3) pages

of the 2nd Amended Complaint that was in the record,

which clearly showed that the Federal Rules of Civil

Procedure was correctly written . . .”; (ii) within her

second question presented Petitioner provided, in part,

“(wJhether the U.S. Court of Appeals, 11th Circuit.

holding F. S. state statute, 119,011(1) [sic], a public

record, invalid snd [sic] repugnant to the U.S.

Constitutional Amendments, One, Fifth and Fourteenth

as well as 42 U.S.C. Section 1983 .. .!*” (foremost, the

10 Infra note 8.

Infra note 8.

2 Below, Plaintiff only pled a violation of rights under

42 U.S.C. § 1983 and the 14th amendment of the U.S.

(Cont'd)

Be

>

ay

ESS,

Bae

ae

fe

17

Eleventh Circuit never even mentioned § 119.011(1),

Florida Statutes, in its written opinion; see Lampkin-

Asam v. Volusia County Sch. Bd., No. 07-12704, WL

80708 (llth Cir. Jan. 9, 2008) (per curiam)); (iii) also,

within her second question presented Petitioner

provided, in part, “Dr. Lampkin-Asam has two

lymphomas named after her that are mutant lymphomas

... (even if her assertion is correct, “[t]he contention

is irrelevant to any issue in the cause.” N.L.R.B. v. Sands

Mfg. Co., 306 U.S. 332, 346 (1939)); (iv) Petitioner’s

“concise” statement of the case, Sup. Ct. R. 14(1)(g),

drones on for 24 pages, /.7.S. Rubber Co. v. Essex Rubber

Co., 272 U.S. 429, 482 n.2 (1926) (“%" is rule provides

that the brief... shall contain, inter alia, a concise

statement of the case .. .”); and (v) within her scant

argument for why the Petition should be granted,

Petitioner provided, in part, “(t]he instant case could

be attempted murder ONE SINCE CLEARLY

ACCORDING TO Sheriff record filed in Deland, Florida

... (again, even if her assertion is correct, “[tjhe

contention is irrelevant to any issue in the cause.”

N.L.R.B. v. Sands Mfg. Co., 306 U.S. at 346).

It should be clear that the instant Petition, like her

pleadings in the district court, was disjointed, repetitive,

disorganized, barely comprehensible, confusing,

incoherent, clogged with irrelevant factual assertions

(Cont’d)

Constitution. Therefore, her assertions under the first and fifth

amendments of the U.S. Constitution were not preserved for

review. Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000) (“It

is indeed the general rule that issues must be raised in lower

courts in order to be preserved as potential grounds of decision

in higher courts.”).

18

and just plain unintelligible."* The instant Petition only

demonstrates that Petitioner should have, as she did

twice before several decades ago, engaged counsel to

represent her because, as it. stands, her Petition is

destined for the same fate, as all her other petitions; to

wit: “cert. denied.” (citations omitted).

Ill. Petitioner’s Claims Against Respondent Evans

Failed, as a Matter of Law.

A motion to dismiss is appropriate when it is

demonstrated “beyond doubt that the plaintiff can prove

no set of facts in support of his [or her] claim which would

entitle him [or her] to relief.” Conley v. Gibson, 355

U.S. 41, 45-46 (1957). For the purpose of the motion to

dismiss, the complaint is construed in the light most

favorable to the plaintiff, and all facts alleged by tiie

plaintiff are accepted as true. Hishon v. King &

Spaulding, 467 U.S. 69, 73 (1984). Regardless of the

zlleged facts, however, a court may dismiss a complaint

on a dispositive issue of law. Marshall County Bd. of

duc. v. Marshall County Gas Dist. , 992 F.2d 1171, 1174

(11th Cir. 1993). “Conclusory allegations in the complaint

need not be taken as true and the plaintiff must allege

sufficient facts to support his [or her] allegations.”

Marine Coatings of Ala., Inc. v. United States, 792 F.2d

1565, 1568 (11th Cir. 1986).

8 ynfra note 8.

Infra note 1.

19

A. Plaintiff Failed to Allege Facts Sufficient to

Support Requisite that Evans Was a State

Actor.

“Constitutional due process protections do not

extend to ‘private conduct abridging individual rights.’ ”

Davis v. Prudential Sec., Inc., 59 F3d 1186, 1190 (11th

Cir. 1995) (citing, quoting Nat'l Collegiate Athletic Ass'n

v. Tarkanian, 488 U.S. 179, 191 (1988) (citing, quoting

Burton v. Wilmington Parking Auth., 365 U.S. 715, 722

(1961)). As the Eleventh Circuit stated in Davis, “only

state action is subject to scrutiny under the Due Process

Clause.” Jd. at 1190-91. In that case, the Eleventh Circuit

held that the arbitration at issue was a private and not

state action, even though the federal arbitration act

sought to regulate private arbitration proceedings and

even though a district court affirmed the arbitrator’s

award of punitive damages. See Davis, 59 F.3d at 1191.

In other words, absent state action, the claim is,

essentially, dead on arrival.

In order to state a claim under section 1983, a

plaintiff must allege and prove three elements:

(1) a deprivation of a constitutionally-protected liberty

or property interest; (2) state action; and (3)

constitutionally inadequate process. Cryder v.

Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). The second

requirement, state action, means that section 1983,

“excludes from its reach private conduct, no matter how

discriminatory or wrongful.” Focus on the Family v.

Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277

(11th Cir. 2003); Lugar v. Edmondson Oil Co., 457 U.S.

922, 936 (1982) (providing the 14th amendment offers

no shield against private conduct “however

PR OE PON ae bE Fe Oni OME EAT RC Nee EE See eh NO ROE S: ETS ON Ny kee eee IR AL ORL, RAPE "

° fo as it ra A og hie RP a PY ev gs tage Oe? ee PFE Fa at ee “ay «aah 2 Fg Oe ae dy an BEY pie!

Bist ASR A fe AG gta hoes oa CS Se ENE ea ee NCE Oa SR eee ern TMS eS Soe oar eo ee aoe

PRESS ae get E TR A Se eT Ee EG PITS APR od SIT BO OE RN AR

ba Bie ta a BL Nee ae oS 2 Std un gay i ES a ae it alba

20

discriminatory or wrongful”) (citing, quoting Civil

Rights Cases, 109 U.S. 3 (1883)).

Stated otherwise,

[t]o state a claim for relief in an action brought

under § 1983, [petitioner] must establish that

{s]he[] w[as] deprived of a right secured by

the Constitution or laws of the United States,

and that the alleged deprivation was

committed under color of state law. Like the

state-action requirement of the Fourteenth

Amendment, the under-color-of-state-law

element of § 1983 excludes from its reach

“merely private conduct, no matter how

discriminatory or wrongful.’” Blum v.

Yaretsky, 457 U.S. 991, 1002 (1982) (quoting

Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).

Where, as here, deprivations of rights under

the Fourteenth Amendment are alleged, these

two requirements converge. See Lugar v.

Edmondson Oil Co., 457 U.S. 922, 935, n. 18

(1982).

Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-

50 & n.8 (1999).

Plaintiff, however, never alleged that Evans’ actions

constituted “state action.” Instead, Plaintiff merely

alleged that Evans was “connected to state action” or

that she “does have a connection with state action.”

Plaintiff’s sole support for these allegations of

connection with state action was her other allegations

that Evans “showed she was connected to state action

21

when she did not have the USIS pay the hospital bill.” .

Plaintiff further alleged that because Evans “has been

abusing the Florida Statute 440.134(17) she does have

connection with state of Florida action,” and that Evans

has violated the Plaintiff’s “rights of life, liberty, and

property under the 14th amendment to the U.S.

Constitution.” None of these allegations, even taken as

true, was sufficient to support a cause of action that

requires state action. USIS is not the State of Florida,

nor had the Plaintiff so alleged, nor does a private

person’s alleged “abuse” of a state statute convert that

private person’s action into state action.

For these and other compelling reasons, all of the

Plaintiff’s claims against Defendant Evans were

properly dismissed with prejudice.

B. Plaintiff Had Not Alleged Facts Sufficient to

Support a Cause of Action Against Evans.

Plaintiff had not alleged that Evans breached any

legal duty to her or violated any law that would give

rise to a private cause of action. See Bus. Alliance for

Responsible Dev. v. Storm Water Mgmt., 462 F. Supp.

2d 1186, 1189 (N.D. Ala. 2006) (“A complaint alleging

the violation of a federal statute ... does not necessarily

state a claim arising under the laws of the United States

when Congress has created no private, federal cause of

action for the violation of federal law.”) (citing, Merrell

Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808-09

(1986); other citation omitted). However, the U.S.

Congress could not lawfully create a private, federal

cause of action under the 14th amendment because this

Court has already determined such action must

5

ay

*

a

a

22

constitute state action or action by an actor of the state

and not a private person. Blum v. Yaretsky, 457 U.S.

991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S.

1, 13 (1948)); Lugar v. Edmondson Oil Co., 457 U.S. 922,

935, n. 18 (1982); Am. Mfrs. Mutual Ins. Co. v. Sullivan,

526 U.S. 40, 49-50 (1999).

Petitioner’s second amended complaint and

attachments showed that Plaintiff received care from

at least three medical care professionals. Defendant

Evans followed up on the Plaintiff’s health status,

sought out Dr. Gebel’s evaluation of her ability to return

to work, and informed Plaintiff that her physician said

that she was “able to return to Full Duty work as of

11/29/05 with regard to your Worker’s Compensation

injury.’®” Plaintiff simply failed to state any legally

cognizable claim upon which relief could be granted

against Respondent Evans.

For all these and other compelling reasons, all of

Plaintiff’s claims against Respondent Evans were

properly dismissed with prejudice.

‘6 On a motion to dismiss for failure to state a claim, “courts

review only the face of the complaint and attachments thereto.”

Zlotnick v. Premier Sales Group, Inc., 480 F.3d 1281, 1287 (11th

Cir. 2007) (citing, quoting Brooks v. Blue Cross & Blue Shield of

Fla., Inc., 116 F.3d 1864, 1368 (11th Cir. 1997)). The quoted

statement above was excerpted from an attached exhibit to

Petitioner’s pleading (below).

23

CONCLUSION

Petitioner did not even address and, therefore, failed

to establish any compelling reason to enable the Court

to exercise its certiorari jurisdiction and then consider

the merits of the case. Accordingly, Respondent,

Suzanne Evans, R.N., respectfully requests the Petition

be denied. Even if the Court might exercise its certiorari

jurisdiction, which it should not, nevertheless, there is

no basis in law or fact to disturb the lower courts’

judgment against Respondent Evans. Thus, even if the

Court reaches the merits, which it should not, the

judgment below should be affirmed with respect to

Respondent, Suzanne Evans, R.N.

In conclusion, Respondent takes the liberty and this

opportunity to recommend that, after 30 filings (before

the instant Petition) in an institutional Court of limited

resources during the past 28 years, it may be time for

the Court to issue a decree to preclude any further pro

se filings by Petitioner, in this Court.'* See In re Vey, 520

U.S. 303, 303-04 (1997) (per curiam); Day v. Day, 510

U.S. 1, 1-2 (1998) (per curiam). The incessant, rising

tide of cert. petitions in this Court seems to warrant

such a decree.”

‘6 Petitioner asserted in her Petition that “(o]n September

18, 1992, I was personally allowed to practice in the Supreme

Court of the United States.” Petition, at p. 11. In light of the pro

se Petitioner’s repeated, non-cert.-worthy filings in this Court,

as well as her disbarment and lack of a license to practice law,

the Court may also wish to consider revoking that privilege.

Asam v. Ala. State Bar, 675 So. 2d 866 (Ala. 1996); cert. denied,

519 U.S. 982 (1996). If for no other reason, Respondent deemed

this issue worthy of the Court’s consideration. Infra note 4, 8.

“ Infra note 4, 5.

24

Respectfully submitted,

H. MicHaEL MuNIz

Appellate Counsel

Law OrFicres OF

STEVEN M. Zrecuer, PA.

4000 Hollywood Boulevard

Presidential Circle, Suite 375 So.

Hollywood, Florida 33021

hmichael.muniz@smzpa.com

Telephone: (954) 966-2696

Facsimile: (954) 966-2446

Attorneys for Respondent

Suzanne Evans, R.N.