IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
MARTIN LINDSTEDT, )
Plaintiff, )
)
v. ) No. 97-5064-CV-SW-1
)
JASPER COUNTY, et. al., )
Defendants. )
PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER DISMISSING
FROM SUIT DEFENDANT SCHOEBERL
Comes now the Plaintiff, Martin Lindstedt, to make this Motion for
Reconsideration of this Court’s ORDER of November 18, 1997 dismissing,
apparently with prejudice, Defendant Schoeberl from this case. This
Motion for Reconsideration comes under the relevant sections of Rule
59 and 60, Federal Rules of Civil Procedure. Plaintiff requests that
this Court overrule, or vacate its ORDER of Nov. 18, 1997. Plaintiff
will show, using this Court’s Order’s format, that this Order should
be withdrawn.
Another ORDER of Nov. 18, 1997 summarily dismissed Plaintiff’s case
with prejudice against Defendants Blauckat and Gilbert. While
Plaintiff would have preferred that these summary dismissals had been
in one ORDER to save time and postage, Plaintiff will answer each
ORDER separately, with different responses of fact and law, like this
Court saw fit to do.
Background
This Court seems to have one of the material facts vital to its
order of summary judgment incorrect. Plaintiff was not in the
courthouse when Plaintiff was detained by several officers asking
questions about whether Plaintiff had had a problem in the
courthouse. Plaintiff was outside the courthouse walking to his
car to leave Carthage when Plaintiff was detained, and falsely
arrested. Later, once Deputy Gilbert had gotten
Motion to Reconsider, Re. Schoeberl 1 Martin Lindstedt
Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road
No. 97-5064-CV-SW-1 Granby, Missouri 64844
his orders from Defendant Schoeberl, Defendant was then handcuffed
and imprisoned for twelve hours under color of Revised Statute of
Missouri (RSMo) 67.315.
The reason this material fact is important is that this Court
bases its entire Order of Nov. 18, 1997 concerning Defendant Schoeberl
on the notion that Plaintiff’s false arrest and imprisonment at
Defendant Schoeberl’s order took place within the courthouse. See
Page 7, ORDER of Nov. 18, 1997. "The Court finds it is certainly
within a judge’s discretion to direct judicial officers to uphold
the law within his or her courthouse. Having a person removed from
a courtroom because they are causing a disturbance, irrespective of
whether they are a party to a specific dispute, is still a judicial
act. . . ."
When Plaintiff was initially detained and arrested, it was well
outside the courthouse, much less a courtroom of that courthouse. It
is not Plaintiff’s fault that Plaintiff was forced out of public
view by Defendants Gilbert, Blauckat, and other unknown Jasper County
Deputies to a more secluded spot out of public view closer, but still
not inside the Jasper County courthouse.
This material fact as to where Plaintiff’s detention, false arrest,
and handcuffing took place at the order of Defendant Schoeberl well
outside any possible judicial jurisdiction of Defendant Schoeberl
renders this Court’s ORDER invalid, as it relies on an invalid fact.
Defendant Schoeberl has no jurisdiction or judicial function over the
public sidewalks outside the courthouse.
Discussion
A. Dismissal of Frivolous Claims
This Court has already held that this Court in its ORDER of August
7, 1997 held that Plaintiff’s case was not frivolous under 28 U.S.C.
§ 1915(d) and did not use this as a basis for summary judgment in
the ORDER of November 18, 1997.
B. Failure to State a Claim
On Page 3 of its Nov. 18th ORDER, this Court spends the first
paragraph showing
Motion to Reconsider, Re. Schoeberl 2 Martin Lindstedt
Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road
No. 97-5064-CV-SW-1 Granby, Missouri 64844
that this Court assumes the truth of all facts alleged in the complaint and draws all reasonable inferences in favor of the complainant. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993). Yet regrettably far too often this Court ignores material fact vital to this case, such as the location of Plaintiff outside the courthouse when he was arrested. Plaintiff hopes that bringing up this vital material fact will be sufficient for this Court to reconsider its ORDER. This Court, at the end of this paragraph, says that as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. (quoting Jackson Sawmill Co., Inc. v. United States, 580 F2d, 306. In the next paragraph on page 3 of its ORDER, this Court says that a defendant’s absolute immunity from suit presents an insuperable bar to relief such that dismissal under Rule 12(b)(6) is appropriate. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218 holds "this immunity applies even when the judge is accused of acting maliciously and corruptly." Plaintiff would say that Defendant Schoeberl is a malicious and corrupt judge, and that absolute immunity from suit is far more than Schoeberl deserves or should have as a matter of public policy. If Defendant Schoeberl had a basis for his claim of absolute immunity, there would be nothing much Plaintiff could do about it. Rather, the Supreme Court has indicated that immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Forrester v. White, 484 U.S. 219, 227-29, 108 S.Ct. 538, 544-45; Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 1106. This district court has not indicated what official capacity Defendant Schoeberl has as a judge to order the Jasper County Sheriff’s Department or even his bailiff to arrest persons visibly intoxicated or incapacitated by alcohol under RSMo 67.315 outside a courtroom in which judicial process is taking place or, even for that matter, outside a courthouse when judicial processes are not taking place. Second, a judge is not immune for his actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-57, 98 S.Ct. at 1104-05; Bradley v. Fisher, 80 U.S. 335, 351 (1872). So therefore, Motion to Reconsider, Re. Schoeberl 3 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
even if this Court can and does define as judicial in nature
Defendant Schoeberl’s ordering the Jasper County Sheriff’s Department
to arrest drunks under color of RSMo 67.315, Defendant Schoeberl has
no jurisdiction to do so on the public streets and sidewalks of
downtown Carthage, outside a courtroom or even outside the courthouse.
Thus on the basis of these two sets of circumstances, Defendant
Schoeberl has failed to qualify for absolute judicial immunity.
On Page 4, this Court goes on to conclude that Defendant
Schoeberl’s actions were taken in his judicial capacity, although it
does admit that "Of course, a judge’s direction to police officers to
arrest a sober individual for appearing intoxicated is not a
‘function normally performed by a judge.’" Stump v. Sparkman, 435
U.S. at 362, 98 S.Ct. at 1108. This Court should have concluded that
a malicious act directing police officers to arrest a sober individual
is not a judicial function at all. RSMo 67.315 has to do with police
officers arresting drunks and throwing them in a jail cell for twelve
hours with no mention of having a judge helping them out in this
executive branch function. Administrative decisions, even though they
may be essential to the very functioning of the courts, have not been
similarly been regarded as judicial acts. Forrester v. White, 484
U.S. 219, 228, 108 S.Ct. 538, 544. Whether the act done by him [a
judge] was judicial or not is to be determined by its character, and
not by the character of the agent. Id. at 228, 108 S.Ct. at 545
quoting Ex parte Virginia, 100 U.S. (10 Otto) 339. As Forrester
instructs, (at 484 U.S. 229, 108 S.Ct. at 545) it is "the nature of
the function performed, not the identity of the actor who performed
it, that inform[s] our immunity analysis." Therefore, since the
nature of the function, (the arrest of Plaintiff under RSMo 67.315,
which was a police action) is not judicial, the identity of the actor
who performed it (a judge who ordered a false arrest under RSMo
67.315) is not what inform[s] an immunity analysis. This district
court got it totally backwards on Page 5 of its Nov. 18, 1997
ORDER in its assumption that just because one of the acting defendants
is a judge, that the nature of the function, his actions, were
somehow judicial in nature.
This Court continues on Page 5 of its ORDER to "find that
even if Schoeberl did order the deputies to arrest Lindstedt
under Missouri Revised Statute § 67.315, such an
Motion to Reconsider, Re. Schoeberl 4 Martin Lindstedt
Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road
No. 97-5064-CV-SW-1 Granby, Missouri 64844
act would be a judicial act." No case law is provided for such an assertion by this district court. Rather, the material facts are misapplied by this Court. "In this case Lindstedt entered the courthouse of his own volition," (a non sequitur) "it is certainly a judicial act for a judge to direct courthouse deputies or officers to enforce the state laws against those who are in the courthouse." Plaintiff was not in the courthouse when those state laws were used as color to arrest and imprison Plaintiff at the direction of Defendant Schoeberl. Throughout pages five and six this Court wanders about claiming that Defendant Schoeberl acted "in excess" of his jurisdiction. However, Plaintiff notes that Defendant Schoeberl cannot act "in excess of his jurisdiction" when he has no jurisdiction at all. Judges are not immune from lawsuits based on actions taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288 (1991). A distinction thus exists between acts performed in excess of jurisdiction and those done in absence of jurisdiction. Duty v. City of Springdale, 42 F.3d 100, 104 (8th Cir. 1994) However, this Court has not bothered to show, other than by allegation, why Defendant Schoeberl ever had any jurisdiction to immunize his misconduct. Having made a total hash of the case law involved, this Court proceeds to misstate the material facts in its close on Page 7 of its Nov. 18, 1997 ORDER involving Defendant Schoeberl: "The Court finds that it is certainly within the judge’s discretion to direct judicial officers to uphold the law within his or her courthouse." Plaintiff was outside the courthouse when Defendant Schoeberl proceeded to abuse for his own purposes RSMo 67.315 and order Plaintiff arrested by the Jasper County Sheriff’s Department, (an executive branch police force, not judicial officers) for public intoxication. "Having a person removed from a courtroom because they are causing a disturbance, irrespective of whether they are a party to a specific dispute, is still a judicial act." Plaintiff never entered any courtroom whatsoever, much less one in which a specific dispute under judicial authority was taking place. Therefore, since Plaintiff never entered a courtroom in the first place, Plaintiff did not need to be removed from a courtroom as a judicial act. Motion to Reconsider, Re. Schoeberl 5 Martin Lindstedt Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road No. 97-5064-CV-SW-1 Granby, Missouri 64844
Plaintiff was not even in the courthouse, much less a courtroom, when
Plaintiff got arrested by Jasper County Deputy Sheriffs upon the order
of Defendant Schoeberl.
Lacking jurisdiction or judicial authority to order the arrest of
Plaintiff under color of RSMo 67.315, it really makes no difference as
to whether Defendant Schoeberl was an associate circuit court judge or
full circuit court judge or Missouri Supreme Court judge or United
States Supreme Court judge. Plaintiff has no idea as to why this
district court devoted a large footnote on the matter at the bottom
of Page 6 of its Nov. 18, 1997 ORDER. In any case, Defendant
Schoeberl was not conducting a hearing, Defendant Schoeberl was
ordering Plaintiff’s false arrest and imprisonment.
Also to be noted is that Defendant Schoeberl, in his Aug. 29, 1997
affidavit paragraph three and four made no mention of Plaintiff’s
possible intoxication or incapacity. Yet it would seem that
Defendant Schoeberl deliberately arranged for Plaintiff’s false
arrest and imprisonment under color of RSMo 67.315 nevertheless.
Anyone with a lick of common sense looking at the material facts
and evidence already presented should know what happened. The
circuit court clerks were annoyed because Plaintiff insisted on
making the clerks file some papers like they were supposed to do and
Plaintiff carried a tape recorder to record any refusal to file
papers in violation of Missouri law. These clerks bellyached to
Defendant Schoeberl, and Defendant Schoeberl called the Jasper County
Sheriff’s Deputies to arrest Plaintiff. Plaintiff was outside the
courthouse and onto a public sidewalk when the Sheriff’s Deputies
detained him. While Plaintiff was so detained, having his tape
recorder taken to prevent recording of this misconduct and other
property stolen by Defendant Blauckat, Defendant Gilbert and
Defendant Schoeberl were hatching ‘a reason’ to arrest Plaintiff
for something that might wash. RSMo 67.315 was settled upon as the
best opportunity to imprison Plaintiff without having a charge
being filed. Defendants Schoeberl, Gilbert, Blauckat and the rest of
the deputies unknown to Plaintiff knew full well that Plaintiff was
not drunk, but a small matter such as using RSMo 67.315 as color of
law wasn’t going to stop them from arresting, handcuffing and
imprisoning Plaintiff for 12 hours. Plaintiff was deprived of
Motion to Reconsider, Re. Schoeberl 6 Martin Lindstedt
Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road
No. 97-5064-CV-SW-1 Granby, Missouri 64844
his liberty for twelve hours and of property in the value of ten
dollars without due process of law but under color of law by
Defendants Schoeberl, Gilbert, Blauckat, and some unknown Jasper
County Sheriff’s Deputies. Yet this Court has refused to interpret
the material facts and evidence in other than a prejudicial manner
in favor of making known defendants Schoeberl, Gilbert, Blauckat,
and others and immune from suit under 42 U.S.C. § 1983.
Wherefore, Plaintiff asks this Court to overrule, overturn, vacate
or set aside its ORDER of November 18, 1997 regarding a summary motion
to dismiss Defendant Schoeberl as a party to this case; to let this
matter proceed to trial by jury so as to settle the facts and law
involved in this matter, plus whatever other relief this Court finds
just and proper.
Respectfully submitted,
-s- Martin Lindstedt 11/28/97
______________________________
Martin Lindstedt, Plaintiff
(417) 472-6901
Certificate of Service
Plaintiff certifies that a copy of this document was
mailed November 28 1997 to Attorney Wayne K. Davis, c/o the
Missouri Attorney General’s Office, Box 899, Jefferson City,
Missouri 65102 as for some reason entered on behalf of
Defendant Joseph Schoeberl, Associate Circuit Judge,
Carthage, Missouri.
Plaintiff certifies that a copy of this document was
mailed November 28, 1997 to Attorney Jeffrey L. Groves,
Daniel, Clampett, Powell & Cunningham LLC, 3171 East
Sunshine, P.O. Box 10306, Springfield, Missouri, 65808 for
Defendants Pierce, Blauckat, Gilbert, and possibly
Schoeberl, Jasper County, and Two Unknown Jasper County
Sheriff’s Deputies.
This Court says that Defendant Schoeberl presented a
motion to have the case against him dismissed. Plaintiff
suspects that this Court means that Attorney Davis made the
motion. But to be on the safe side, Plaintiff also mails a
copy of this motion on Nov. 28, 1997 to Defendant Joseph
Schoeberl, Jasper County Courthouse, Carthage, Missouri
64836.
-s- Martin Lindstedt
Motion to Reconsider, Re. Schoeberl 7 Martin Lindstedt
Re: Lindstedt v. Jasper County et. al. 338 Rabbit Track Road
No. 97-5064-CV-SW-1 Granby, Missouri 64844
.
Comment: The Federal judiciary has always been determined to let their fellow criminals at the bar go free, regardless of the plain language of 42 U.S.C. § 1983 that Congress established in the anti-Ku Klux Klan Act of 1871. The one case where the law was enforced against a state judge was in the case of Ex Parte Virginia, 100 U.S. 339, (1880) where a Virginia state judge remained in jail for his part in making sure negroes were not allowed on a jury. The Supremes then decided that Congress had passed 'enabling legislation' to enforce the 14th Amendment and it had good reason to do so. Judges who exceeded their authority, who used their power outside jurisdiction, were liable to charges for their misconduct..However, well before 1963, federal judges used 'common law' as an excuse to dismiss civil cases against corrupt judges, even though the doctrine of a federal common law had been overturned in Erie Railroad v. Thompkins (1938). The other excuse used is "public policy" demands an independent judiciary, although for all practical purposes this doctrine of absolute judicial immunity means that these black-robed criminals are thus independent of having to obey the law, getting to submit their whims as a masquerade of law without consequence.
However, the Gubbnmint Kangaroo Korts, for reason of "public policy" can't just say that judges can commit any criminal act they want because they are above the law. That would finish the pretence that gubbnmint korts and justice are anything other than the mechanism to lend a superficial legal gloss to criminal tyranny. So the korts go through the motions and procedures of misquoting both law and fact before they let the criminal judge off the hook. Such was done by Federal Judge Dean Whipple. This Motion of mine was to try getting him to set aside his judgment or face the appeals court.
However, Whipple knows that I already have been turned down twice by the 8th Circuit Court of Appeals, once involving suing Schoeberl for other his criminal activities in having me imprisoned for contempt for 30 days over a bogus traffic misdeameanor. Whipple thinks he can get away with his bogus ruling, and thus he tried it. Whipple may very well be right.
It is not a matter of "law" anymore. It never was a matter of justice. It is a matter of power. The gubbnmint cannot set up a police state unless it has a bunch of crooked judges to legitimize its tyranny. It must protect those judges from suits from the judges' victims. Ergo, it must rule that corrupt judges are absolutely immune from lawsuit.
Of course this does not last forever. Sooner or later the regime is destroyed by the collapse of its civilization or by revolution. The very first criminals of the ancient regime held totally responsible for the corruption leading to the regime's overthrow are the former judges, who are butchered out by their former victims in the name of justice.
Back to Lindstedt v. Jasper Co. et. al.,
Over to Patrick Henry On-Line?