Rhodes v. Meyer (225 F. Supp. 80, 1963)

DELEHANT, Senior District Judge.

Submitted in behalf of the parties, and pending for ruling by the court, are four separate motions to dismiss the plaintiff’s amended complaint:

a) one filed by the defendant Robert A. Nelson (filing 26);

b) one filed by the defendants, Maurice Sigler and George Lewis (filing 27);

e) one filed by the defendants, Dwain L. Jones, Gerald S. Vitamvas, Peter E. Marchetti, H. B. Evnen and J. Arthur Curtiss (filing 28); and

d) one filed by the defendants, Clarence A. H. Meyer, Cecil Bru-baker, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Ed-ard F. Carter, Fred W. Mess-more, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Brower, Richard M. Van Steenberg, Albert W. Crites, Ted R. Feidler and John Greenholtz (filing 29).

Submitted also in the Motion to Dismiss of the defendant, Robert A. Nelson, is what constitutes a Motion to Strike paragraphs XIX, XXI and XXIII of the Amended Complaint as scandalous and impertinent, specifically with respect to that moving defendant.

The grounds upon which the Motions to Dismiss are explicitly premised may be recalled very briefly. Each of these Motions asserts all of these separate grounds for its allowance:

a) that the amended complaint is scandalous; impertinent and vexatious;

b) that the amended complaint fails to state a claim upon which relief can be granted against the several moving defendants;

c) that plaintiffs alleged claim is not within the protection of the Federal Civil Rights Act, or any other statutory or constitutional provision upon which plaintiff seeks to predicate his action; and,

d) that each moving party is immune from liability under the Federal Civil Rights Act for the reason that the conduct attributed to him or her, as the case may be, to the extent to which, if at all, any such conduct occurred, was done in his or her official capacity (as shortly herein indicated); for conduct in which capacity it is contended that immunity to suit exists.

Each of the two several motions filed as numbers 27 and 29 asserts the identity of the facts alleged in support of the claim put forth in the present amended complaint with the facts set out in ease No. 01322, entitled Rhodes v. Houston, et al., D.C., 202 F.Supp. 624, affd. 8 Cir., 309 F.2d 959, cert. den. 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719; wherefore, bar by the rule res judicata is claimed. For that matter, on the oral submission, all of the parties defendant pointed to the ruling in Rhodes v. Houston, supra, the defendants who were parties to it under the rule res judicata, and all parties defendant for its authoritative reasoning and legal cogency. And the several motions noted as filings 26, 27, and 29 insist that the amended complaint contains all of the vital defects of the complaint initially filed herein, which the court heretofore, upon motion, struck from the files (filing 24 and memorandum, filing 23).

To an understanding of the amended complaint, and the motions aimed at it, the identification of the parties and of their respective official positions or employment at the time or times involved in the litigation, appears to be necessary. This is now set down almost exclusively upon the basis of averments in the amended complaint, but, to an imperative extent, with corrective clarification by resort to available and pertinent public records.

Paul Rhodes, frequently referred to as Paul E. Rhodes, is, and for more than twenty years continuously heretofore has been, an attorney at law. He was bom on July 27, 1919 in Nebraska, obtained in this state a common school and high school education, and studied in the University of Nebraska for six years in its College of Business Administration and its School of Law, from the latter of which he graduated in its class of 1943. He was admitted to the bar of Nebraska on June 23, 1943. He is, and, continuously since July 27, 1943, has been a member of the bar of this court. Hence, while he prosecutes this action pro se, he does so, not as an untutored layman, but rather as an experienced practitioner at the bar, for he has long and actively pursued the practice of his profession. He is a resident and citizen of Nebraska.

Each of the several defendants is, and at all times involved herein has been, a resident and citizen of Nebraska. Clarence A. H. Meyer is, and since January 5, 1961 has been, the Attorney General of Nebraska. At all times material herein, he was either the Deputy Attorney General or — and more recently, and now, supra — the Attorney General, of Nebras-lea. Cecil Brubaker and Dwain L. Jones, at all material times were Assistant Attorney Generals of Nebraska. At all such times Gerald S. Vitamvas was either an Assistant Attorney General, or the Deputy Attorney General, of Nebraska, and Rush Clarke and Robert A. Nelson were special Assistant Attorney Generals of Nebraska. At such times, too, James L. Macken was the duly elected and qualified County Attorney of Morrill County, Nebraska; Virginia A. Schuetz, the duly elected and qualified Clerk of the District Court of Morrill County, Nebraska; Norval Houston and Michael Linch, respectively, the Sheriff and the Deputy Sheriff of Morrill County, Nebraska ; Leo Knudtson and Carl Sanders, officers, or members, of the Nebraska Safety Patrol; George Turner, the Clerk of the Supreme Court of Nebraska; Robert G. Simmons, the Chief Justice of the Supreme Court of Nebraska; Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh and Robert C. Brower (inaccurately designated in the amended complaint as Robert C. Browers), Associate Justices of that court; Richard M. Van Steenberg, the District Judge of the Seventeenth Judicial District of Nebraska, wherein Morrill County is located ; Albert W. Crites, the District Judge of the Sixteenth Judicial District of Nebraska; Maurice Sigler the warden and John Greenholtz the deputy warden, of Nebraska State Penitentiary, located at Lincoln, Nebraska; and George Lewis, a physician employed in his professional capacity by, and performing his duties within, the Nebraska State Penitentiary, and in part upon, and in relation to, members of the prison population of that institution.

The plaintiff instituted this action on March 8, 1963 by the filing of his complaint (filing 1). In the face, and after submission, of sundry motions to dismiss the complaint, the court, in harmony with a memorandum opinion (filing 23), on June 7, 1963, by an order duly entered herein, found that the complaint failed to comply with Rule 8(a) Federal Rules of Civil Procedure, and also was scurrilous, scandalous and impertinent, and ordered that the complaint be stricken from the files, but that the plaintiff be granted leave, on or before July 1, 1963 to serve and file herein an amended complaint. Under the leave thus granted, the amended complaint was served on June 25, 1963 and filed herein on June 26, 1963. The motions already outlined followed.

With an effort in the direction of adequacy, yet, with reasonably necessary abbreviation, the amended complaint is now summarized. At its threshold it declares that jurisdiction of the action is invoked under “28 U.S.C.A., 1331, 28 U. S.C.A., 1343, and 42 U.S.C.A. 1981, 1983, 1985, 1986, 1987, 1988 and the United States Constitution Amendments IV, V, VI, VII, VIII, XIII and XIV, and Article 1 section 9 of the United States Constitution, and sections of the Nebraska Statutes as follows: R.R.S.Neb.1943, re-issue of 1956-7-105, 7-106, 29-2801, 29-2805, 29-2806, 29-2809, 29-2819"; and follows with a declaration that the action is brought under the constitution and laws of the United States “and the amount in controversy exceeds $10,-000.00, exclusive of interest, costs and fees.” Then, at considerable length, after declaring the plaintiff’s citizenship and residence, supra, it names the several defendants, Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Nerval Houston, and Michael Linch, and attributes to each of them, as of all times material to the pleading, the office or public position hereinbefore identified in respect of each of them. It may also be understood that later in the pleading and less systematically, the amended complaint identifies separately the defendants, John Greenholtz, Maurice Sigler and George Lewis, and their respective positions in the Nebraska State Penitentiary as already disclosed herein. And as to each defendant in this paragraph mentioned, the amended complaint is regarded as asserting that every act by such amended complaint attributed to such defendant was done or performed under the color and authority of his or her designated office or position.

The amended complaint’s initial identification of the defendants mentioned in the last preceding paragraph (other than the defendants, John Greenholtz, Maurice Sigler and George Lewis) is followed by paragraph III, which contains this language:

“That each of the defendant (sic) hereinafter named were at all times hereto pertinent and now are (sic) attorneys and counselors or one of said positions, namely the defendants, Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush ■Clarke, James L. Macken, Peter E. Marchetti, George Turner, Robert G. Simmons, Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Browers (sic), Richard M. Van Steenberg, Albert W. Crites, and Ted R. Feidler, H. B. Even (sic) and J. Arthur Curtiss, and were all attorneys admitted to the Nebraska State Bar, Nebraska State Bar Association, to practice law by the Supreme Court of Nebraska, and all of their actions as hereinafter described were under the color and authority of that office as Attorney at Law of the State of Nebraska, and the Nebraska State Bar Association, an official part of, organ of, and division of the State of Nebraska.”

Paragraph IV of the amended complaint is copied in full as follows:

“That previous to November 21, 1960 the defendants, Richard M. Van Steenberg, Clarence A. H. Meyer, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, and George Turner and Albert W. Crites, entered into an agreement to deprive this plaintiff of his Federal Civil and Constitutional Rights without due process of law and to deny him equal protection of the law; notwithstanding that previous to November 20, 1960 the said Richard M. Van Steenberg had disqualified himself as District Judge of the District Court of Morrill County, Nebraska, in all actions in which Paul Rhodes was plaintiff or defendant, and that said disqualification was on account of bias and passion and prejudice against this plaintiff that would prevent this plaintiff from securing a fair trial and that said situation still existed on November 21, 1960 and on December 5,1960 and at all times thereafter, the disqualification had not been removed.”

Adverting, by reference, to its paragraph last quoted, the amended complaint next avers that notwithstanding Judge Van Steenberg’s alleged disqualification, and in furtherance of the conspiracy (both mentioned in such quoted paragraph) “the defendants last above named,” that is to say, Richard M. Van Steenberg, Clarence A. H. Meyer, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner and Albert W. Crites, secured from one H. Snyder, Deputy Sheriff of Denver County, Colorado, a false affidavit to the effect that he served on Paul Rhodes a Notice of Plearing in Case No. 4819 then pending in the District Court of Morrill County, Nebraska, and caused such affidavit to be filed on November 18, 1960 in such Case No. 4819, “knowing said affidavit of service of Notice of hearing to be held on November 21, 1960, was a false affidavit, when in truth and in fact they well knew that said notice was not delivered to Paul E. Rhodes at 7:45 A.M. on the 15th day of November, 1960.” (Emphasis added.) It is also alleged that the Snyder affidavit was procured and filed in such Case 4819 for the purpose of deceit and fraud upon the court “with the intent to deceive and with the intent to defraud the court, the Judge, the Party to the action, this plaintiff,” that reference being manifestly to the use of the affidavit by its filing in Case No. 4819. With reference, still, to that allegedly false affidavit, it is also alleged that “all of the defendants * * * named in this action except one defendant, Peter E. Marchetti,” secured a copy of such false affidavit, which copy was prepared by the defendant, Virginia A. Schuetz, with the intent to deceive, and perpetrate a fraud upon, the Honorable Robert Van Pelt, one of the judges of this court and the presiding judge in Case No. 01322 in this court (vide infra), and caused such copy to be filed in such case No. 01322 in this» court on January 24, 1962, while Case-No. 01322 was pending here, all with the-intent to deceive Judge Van Pelt, and. to defraud and deceive the plaintiff herein, which was done through the collusion, with one another of all of the defendants hereto except Peter E. Marchetti, and; in violation of the statutes and constitution of the United States, the constitution of Nebraska, and sections 7-105 and'. 7-106 R.R.S.Neb.1943, Reissue of 1956; and at the time of such filing of such, copy in this court, the defendants hereto, except Peter E. Marchetti “had plaintiff confined in the ‘Hole’ (meaning thereby, the prison jail) of the Nebraska State-Penitentiary, held incommunicado and' without use of telephone, and other necessary freedom to properly defend himself against said fraud, and had been deprived of his liberty by said defendants,, as well as typewriter and other necessary elements and necessaries to prepare-pleading and defend against said false-affidavit and collusion and all of the defendants except Peter E. Marchetti consented thereto.”

The plaintiff further avers in the-amended complaint that in furtherance-of such collusion and conspiracy, the defendants, except Peter E. Marchetti, proceeded on November 21,1960 “to try this-plaintiff in absentia for Contempt off Court,” the court then entered therein» an order, showing that the defendant (meaning the plaintiff herein) was not. present and was not represented by counsel, and that hearing was had on the-merits, and considering, ordering and. adjudging Paul Rhodes to be guilty off Contempt of Court as charged and sentencing him “to confinement in the Ne~ braska State Penitentiary at Lincoln, Nebraska, for a period of nine (9) months at hard labor, Sundays and holidays excepted, and to pay a fine in the amount of two thousand five hundred dollars ($2,500.00) and the costs of this proceeding,” all allegedly in deprivation •of his Federal Civil Rights and Constitutional Rights.

The plaintiff then alleges in his amend•ed complaint that “in furtherance of the •collusion, deceit and fraud heretofore alleged all of the defendants in this ac■tion” — apparently thus not excepting Peter E. Marchetti — further agreed to ■deprive plaintiff of his Federal Civil Rights and Federal Constitutional guarantees by securing and preparing or ■causing to be prepared, or consenting to -the preparation of, “on December 18, 1961 or thereabout” false affidavits of •John Greenholtz and Maurice Sigler, respectively the deputy warden and warden of the Nebraska State Penitentiary, and acting under the color of their respective offices, in which were contained false and untrue statements of fact, of which a verbatim statement is set out in a footnote hereto; that such affidavits were sworn to by the affiants therein in their respective official capacities, were procured by all defendants hereto, and were filed in Case No. 01322 then pending in this court with intent to deceive this court and the Judge in such action, and even the plaintiff himself, all in collusion and conspiracy between the defendants.

At considerable length the plaintiff, in his amended complaint, alleges several features of his imprisonment for the apparent purpose of particularizing the falsity of specific features of the Green-holtz-Sigler affidavits. These averments include statements:

a) that from January 23, 1961 to July 7, 1961 plaintiff was held prisoner in the Nebraska State Penitentiary by all of the defendants hereto as a convict, i. e. convict No. 21675, serving a sentence and on January 23, 1961 was assigned such number in the chronological order of convicts received to serve felony sentences;

b) that no inmate of such penitentiary held for safe keeping of a sheriff or court pending conviction and until final execution of sentence is ever or had been assigned a convict number to and including July 7, 1961;

c) that from January 23, 1961 to July 7, 1961 both inclusive plaintiff was subjected to hard labor by the defendants to this action, involuntary servitude, by being forced to take and submit to a course of prison orientation and was assigned to the Reception Center, in the Penitentiary for that purpose; that no safekeeper in the Penitentiary is assigned to the reception center and forced to take an orientation course, consisting of the first four weeks of hard labor assignment of all convicts;

d) that notice that plaintiff was not being held as a safekeeper was given by the publication on or about February 18, 1961 and June 13, 1961 in “The Forum,” a weekly newspaper, evidently by the publication of his photograph with the legend, “Rhodes 21675;”

e) that from February 21, 1961 to May 12, 1961 plaintiff was by, or with the consent of, the defendants, assigned to the general prison population, and no safekeeper has ever been so assigned in such penitentiary.

Reverting to Case No. 01322 in this court, and the same case on appeal, being Case No. 16990, 309 F.2d 959, United States Court of Appeals, Eighth Circuit, the plaintiff, in the amended complaint,, makes further allegations to the effect,

a) that, in furtherance of the alleged conspiracy all of the defendants in this action, made further use of the foregoing allegedly false affidavits in Case No. 01322, and in appellate Case No. 16990, by declaring in a brief in the latter phase of that litigation that the plaintiff, under his sentence for Contempt of Court was not required to serve any part of his sentence at hard labor “and that portion of the sentence has become a nullity;” and that such use was-made with intent to deceive the-United States Court of Appeals, Eighth Circuit, and the judges thereof in the then pending case and constitutes a violation of Section 7-106 R.R.S.Neb.1943;

b) that in oral argument in Appellate Case No. 16990, on September 17, 1962, the defendant, Robert A. Nelson, all other defendants consenting, “did succeed in causing said court * * to rely thereon” (i. e. on the allegedly false affidavits) “to this plaintiff’s detriment;”

c) that in their brief to this court in Case No. 01322, the defendants hereto, with intent to perpetrate a fraud on the plaintiff hereto and to deceive the Hon-able Robert Van Pelt, the judge acting therein, told the court that in the case of Paul E. Rhodes v. W. W. Shulz et al, being Case No. 6617 in the District Court of Cheyenne County, Nebraska (a habeas corpus proceeding brought by the plaintiff), the Sheriff did not have a copy of the commitment issued on November 25, 1960 by the Clerk of the District Court of Morrill ‘County, Nebraska, in Case No. 4819 therein, referred to as set out in his return and alleged to be delivered to the court with his return in Case No. 6617, Cheyenne County, Nebraska, wherein the court discharged the plaintiff from "“the unlawful commitment and judgment of Case No. 4819, District Court of Morrill County, Nebraska,” when, actually, “the same was in the files in said case in Cheyenne County, Nebraska, and had been there since the sheriff had delivered the return and the commitment copy to the Judge of said Cheyenne County Court on January 14, 1961;”