Plaintiff;s Case Evaluation Summary

on

prudent man in believing that plaintiff had committed or was committing any offense.

162). Plaintiff contends, at the time of his arrest, the police did not have the required probable cause to arrest him, and refused to take into consideration anything that plaintiff had to say.

163). As indicated, in an effort to prevent Plaintiff from being able to bring a civil action against them, the City decided to bring criminal charges against Plaintiff.. As a result of this decision, the city needed to show that Plaintiff was in the Industrial Park Store illegally. This required the City to put the perjured testimony of Kenaya and the police to the jury, resulting in the unlawful conviction of Plaintiff. A Miscarriage of Justice.

164). Plaintiff contends, the City’s conduct has far reaching effect. The fraud upon the court in this case has worked a fraud on the federal system in the case of Arthur L. Lockett v. Deutsche Bank National Company and Trustee et at., Hon. Denise Page Hood., United States District Court, Eastern District of Michigan, Case No. 08-CV-14770-DT, and the January 22nd 2009 Order of Summary Dismissal.

165). Plaintiff complaint is assigned to Detective Stuewer of the Port Huron Police Department, of whom, like appointed counsel, has not spoken to Plaintiff concerning this complaint thereby denying plaintiff the equal protections of the law.

166). Plaintiff is denied the equal protection of the law at the hands of the police of Port Huron and St. Clair County.

167). Plaintiff further contends defendants are not entitled to qualified immunity on his claims that they violated his Fourth Amendment rights by using excessive force to unlawfully restrain him.…Claims that law enforcement officers used excessive force in the course of an arrest should be analyzed under the Fourth Amendment and its "reasonableness" standard because the Fourth Amendment protects against such physically intrusive conduct. Graham v. Connor , 490 U.S. 386, 395, 104 L. Ed. 2d 443, 454 (1989). When attempting a lawful arrest, an officer has the right to use reasonable force to subdue the person arrested and the person arrested has no right to resist.

 

N.C. Gen. Stat. [section] 15A- 401(d)(1) (1988); State v. Burton , 108 N.C. App. 219, 226, 423 S.E.2d 484, 488 (1992), appeal dismissed and disc. review denied , 333 N.C. 576, 429 S.E.2d 574 (1993)

168). Our Supreme Court has stated: The law will protect an officer who is attempting to make a lawful arrest or to make a lawful search, from consequences of his acts done necessarily in the performance of his duty.

169). This principle cannot be invoked in this case in defense of officers who in attempting to make an unlawful arrest and search, then unlawfully proceed to commit an assault, with or without a deadly weapon. For the consequences of his unlawful acts, he must be held responsible to the same extent and with the same result as others who do not profess to act under the law. State v. Simmons , 192 N.C. 692, 695, 135 S.E. 866, 867 (1926).

170). Plaintiff filed both an independent equitable action and a claim of fraud upon the court under MCR 2.612(C)(3) of the Michigan Rules of Court. According to commentators analyzing the substantially similar savings clause contained in Fed. R. Civ. P. 60(b), an independent equitable action and a claim of fraud upon the court are separate and distinct bases for obtaining relief from a judgment. See 12 Moore�s Federal Practice �60.81[1][b][v] (3d ed. 1997); 11 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure ��2868, 2870 (2d ed. 1995).

The supreme court has recognized this distinction. See Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, 854 P.2d 167 (Colo. 1993) (analyzing independent equitable action and claim of "fraud upon the court" separately).

Courts often confuse an independent equitable action for relief based on fraud with a request for relief based on "fraud upon the court." See Moore�s Federal Practice, supra, �60.81[1][b][v].

171). Because Plaintiff instituted an independent equitable action based on fraud, and with the court granting relief upon a finding of fraud upon the court, the court should analyze the defendants’ conduct under both grounds for relief.

172). Independent Equitable Action Based on Fraud. An independent equitable action may be brought to attack a facially valid decree on grounds of fraud or mistake. See Green v. Hartel-Green, 761 P.2d 222 (Colo. App. 1988).

173). Relief pursuant to an independent action is available only in cases of unusual and exceptional circumstances. In re Smith, 989 P.2d 165 (Colo. 1999). As indicated above. The elements of such a cause of action are:

(1) a judgment that ought not, in equity and good conscience, to be enforced;

(2) a good claim or defense to the alleged cause of action on which the judgment is founded;

(3) fraud, accident, or mistake that prevented the claimant from obtaining the benefit of his claim or defense;

(4) the absence of fault or negligence on the part of the claimant; and

(5) the absence of any adequate remedy at law. See In re Smith, supra; Dudley v. Keller, 33 Colo. App. 320, 521 P.2d 175 (1974).

174). Extrinsic fraud goes to the jurisdiction of the court to hear a case and amounts to a subversion of the legal process itself. In re Estate of Bonfils, supra. Extrinsic fraud operates to deprive the person against whom the judgment was rendered of an opportunity to fully or fairly defend, such as where a party was deceived into signing a waiver of summons, and jurisdiction was thereby fraudulently obtained. See Fahrenbruch v. People, supra.

175). In discussing the distinction between these two types of fraud, the supreme court stated as follows:

We have held that only a judgment obtained through fraud "extrinsic" to that judgment is susceptible to collateral attack. . . . While this courts retention of the distinction between "intrinsic" and "extrinsic" fraud has been criticized, we permit the setting aside of a judgment in equity on a showing of extrinsic fraud alone in such circumstances because such fraud corrupts the judicial power and serves to turn a court of law into an instrument of injustice. Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, supra, 854 P.2d at 176 (citations omitted).

We acknowledge that the above-quoted passage from Southeastern appears in the court�s analysis of a claim of fraud upon the court. However, given the supreme court�s consistent distinction between intrinsic and extrinsic fraud, it appears the rule in Colorado is that a party bringing an independent equitable action based upon fraud must assert more than intrinsic fraud such as perjury or nondisclosure by a party to the litigation. See Foxley v. Foxley, 939 P.2d 455 (Colo. App. 1996)(relying on Southeastern for proposition that showing of extrinsic fraud was necessary in independent action to set aside dissolution decree); see also S. Hyatt & S. Hess, Colorado Civil Rules Annotated �60.6 (3d ed. 1998) (citing Southeastern for proposition that independent equitable action must be based upon extrinsic fraud).

176). However, a clear majority of courts holds that classic forms of intrinsic fraud, such as perjury or nondisclosure by a party, are insufficient to warrant relief in an independent action. See Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44 (1st Cir. 1995) (absent allegation of involvement by an officer of the court, perjury alone has never been sufficient to support independent equitable action based on fraud);

177). Finding these authorities and their reasoning persuasive, Plaintiff seek relief in an independent equitable action based upon fraud. Plaintiff must show more than mere perjury or nondisclosure between the litigants and have done so even concerning the subject matter of the original action. Plaintiff also asserts that the trial court would not abused its discretion in granting relief pursuant to MCR 2.612(C)(1)(f) because the trial court will find that Livesay had perpetrated a fraud, which is a basis for relief under subrule (c).

In order for relief to be granted under MCR 2.612(C)(1)(f), the reason for setting aside the judgment cannot fall under subrules (a) through (e). Altman, supra; McNeil, supra. However, MCR 2.612(C)(1)(f), like its counterpart in the federal rules, provides the court with “‘a grand reservoir of equitable power to do justice in a particular case’ and ‘vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.’” Eberhardt v Integrated Design & Construction, Inc, 167 F3d 861, 872 (CA 4, 1999), quoting Compton v Alton SS Co, 608 F2d 96, 106-107 (CA 4, 1979), quoting 7 Moore’s Federal Practice § 60.27(2), at 375. Accordingly, we believe that a trial court may properly grant relief from a judgment under MCR 2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under subrules (a) through (e) are present, when additional factors exist that persuade the court that injustice will result if the judgment is allowed to stand.

178). Here, the City Attorney John Livesay, the Judge C.S. Platzer and Plaintiff’s court appointed attorney Margaret Kelly’s concealment of records of the transaction that occurred on the bridge-cards, clearly pertained to the substance and merits of the litigation and involved more than the parties themselves. Thus, it did rise to the level of fraud necessary to support an independent equitable action to vacate the underlying conviction and other orders of that court. See Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, supra; Foxley v. Foxley, supra.

 

179). Fraud Upon the Court. Fraud upon the court is closely aligned with, but somewhat narrower than, extrinsic fraud. See In re Marriage of Glover, 723 N.E.2d 924 (Ind. App. 2000). A fraud upon the court is one that interferes with the judicial machinery itself. Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, supra.

180). Fraud on the court is defined in terms of its effect on the judicial process, not in terms of the content of a particular misrepresentation or concealment. Fraud on the court must involve more than injury to a single litigant; it is limited to fraud that "seriously" affects the integrity of the normal process of adjudication. Fraud on the court is limited to fraud that does, or at least attempts to, "defile the court itself" or that is perpetrated by officers of the court "so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases." Moore�s Federal Practice, supra, �60.21[4][a] at 60-52.

181). Examples of fraud upon the court are bribery or other corruption of the court or of a jury, or where an attorney is an accomplice to the fraud. Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, supra; Foxley v. Foxley, supra. Perjury and other fraud merely between the parties to the litigation, however, do not constitute fraud upon the court. See Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, supra; Moore�s Federal Practice, supra, �60.21[4][c].

182). Here, there is no dispute that defendants through the assistance of City Attorney’s fraudulent nondisclosure of documents, suppression of scene from the visual evidence, as well as the sound, was not purely between the parties. Thus, insofar as the court vacate and modified the judgment and orders of the 72nd District Court, based upon a determination that the City’s conduct amounts to fraud upon the court, is not error.

183). In the United States Court 1 of Appeals for the Sixth Circuit has set forth five elements of fraud upon the court which consist of conduct: “1. On the part of an officer of the court; 2. That is directed to the ‘judicial machinery’ itself; 3. That is intentionally false, willfully blind to the truth, or is in reckless disregard

for the truth; 4. That is a positive averment or is concealment when one is under a duty to disclose; 5. That deceives the court.” (1st Cir. 1995); Demjanjuk, 10 F.3d at 348.

184). The Ninth Circuit noted that “one species of fraud upon the court occurs when an ‘officer of the court’ perpetrates fraud affecting the ability of the court or jury to impartially judge a case.” Pumphrey v. Thompson Tool Co., 62 F.3d 1128, 1130 (9th Cir. 1995); see also Weese v. Schukman, 98 F.3d 542, 553 (10th Cir. 1996) (noting that “fraud on the court should embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court”) (citation omitted); Kerwit Med. Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 837 (11th Cir. 1980) (same).

Compensatory Damages

185). A resolution of a judgment determining that plaintiff prevailed on the separate civil fraud claim and awarding compensatory damages is not error. The court will be able to make specific and detailed findings supporting its ruling because the record supports these findings, undisturbed on appeal. See Feit v. Donahue, 826 P.2d 407 (Colo. App. 1992).

186). The federal and Michigan constitutions guarantee that the state cannot deny people "life, liberty, or property without due process of law." US Const, Am XIV; Const 1963, art 1, § 17; see also Kampf v Kampf, 237 Mich App 377, 381; __ NW2d __ (1999). Due process is similarly defined under both constitutions, Palmer v Bloomfield Hills Bd of Ed, 164 Mich App 573, 576; 417 NW2d 505 (1987). A statute is presumed constitutional unless the contrary is plainly evident. Kampf, supra, slip op at 3. The party challenging the constitutionality of a statute bears the burden of showing its unconstitutionality. Id.

Exemplary Damages

187). Defendants may contend that the court would erred in awarding exemplary

damages. We are not persuaded. Defendants argues that exemplary damages may not be

awarded in equitable actions or in actions under C.R.C.P. 60(b). This argument, however, ignores the fact that the trial court also ruled in Plaintiffs favor on the separate civil fraud claim — a claim that clearly supports an exemplary damage award. See �13-21-102, C.R.S. 2000; Eads v. Dearing, 874 P.2d 474 (Colo. App. 1993). Indeed, the trial court indicated that it was awarding the exemplary damages pursuant to plaintiff’s fraud claim and made the necessary findings to support the award. Under these circumstances, the court perceive no error.

Attorney Fees

188). Finally, defendants may contend that the award of attorney fees was either erroneous or not supported by sufficient findings plaintiff disagree.

WHEREFORE: Plaintiff pray the Court to enter its judgment for the full amount of 10 million dollars against the City of Port Huron. Treble in punitive damages against each defendant in his or her individual capacity. Further order and grant the following relief: enter an order that: the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against plaintiff that was or could have been commenced before the commencement of this case under the law, or to recover a claim against plaintiff that arose before the commencement of this case, the enforcement, against plaintiff or against property of the plaintiff’s estate, of a judgment obtained before the commencement of this case, any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate, any act to create, perfect, or enforce any lien against property of the estate, any act to create, perfect, or enforce against property of Plaintiff, any lien to the extent that such lien secures a claim that arose before the commencement of this case; any act to collect, assess, or recover a claim against plaintiff that arose before the commencement of this case, the setoff of any debt owing to anyone that arose before the commencement of this case against any claim against plaintiff be ordered void, and Plaintiff and his family shell be awarded the return of the property known as 1787 Michigan Rd. that all items removed from the property: the rebuilding of the home; the

items in the home and pump house be returned and restored or its equivalent, forthwith. Plaintiff demands injunctive relief and an additional judgment against all Defendants as a group in the amount of ($10,000,000.00) ten million dollars in actual damages ($10,000,000.00) ten million dollars Treble in punitive damages and actual, special, compensatory damages, and an amount deemed at the time of trial to be just, fair, and appropriate.

189). Under the provisions of MCR. Rule 2.410 Alternative Dispute Resolution. The scope and applicability of rules indicates: (1) All civil cases are subject to alternative dispute resolution processes unless otherwise provided by statute or court rule.(2) For the purposes of this rule, alternative dispute resolution (ADR) means any process designed to resolve a legal dispute in the place of court adjudication, and includes settlement conferences ordered under MCR 2.401; case evaluation under MCR 2.403; mediation under MCR 2.411; domestic relations mediation under MCR 3.216; and other procedures provided by local court rule or ordered on stipulation of the parties. Therefore, at a minimum, the ADR plan must specify how access to ADR processes will be provided for indigent persons.

190). If a party, as here, qualifies for waiver of filing fees under MCR 2.002 or the court determines on other grounds that the party is unable to pay the full cost of an ADR provider’s services, and free or low-cost dispute resolution services are not available, the court shall not order that party to participate in an ADR process.

191). Plaintiff states: pursuant to Title 28, Part V, Chapter 115 § 1746, that I, Mr. Arthur L. Lockett, declare certify, verify, and state under penalty of perjury, under the laws of the United States Of America, as represented by my signature below, that the foregoing is true and correct to the best of my knowledge, information and belief.

 

 

 

 

Respectfully submitted,

__________________________

Mr. Arthur L. Lockett Wednesday, March 3, 2010

Pro se Plaintiff

909 Stone St. Apt #1

Port Huron, Michigan 48060

(810) 985 – 9309

(810) 941-7111 (cell PH.)

Tasered woman says next time she’ll ’say nothing’

NEW YORK — A 72-year-old Texas woman who was Tasered during a traffic stop when she dared a deputy constable to use the stun gun said Tuesday that if she got pulled over again she would say nothing.

In an interview on NBC’s “Today” show, Kathryn Winkfein acknowledged that she lost her temper during the May 11 confrontation and that if she had to do it over, “I would just not say anything, not react.”

Winkfein was stopped for driving 60 mph in a 45-mph zone near Austin. A dashboard camera in the deputy constable’s car shows the 4-foot-11 Winkfein getting out of her truck, arguing with the officer and swearing at him.

The video, released nationwide, shows the officer using the Taser and Winkfein hitting the ground and moaning in pain.

The incident is being reviewed by prosecutors. An internal investigation found no violations by the deputy constable.

Winkfein this month accepted a $40,000 settlement offer from Travis County. County Judge Sam Biscoe said defending a lawsuit would have cost much more.

Based on the tape, Winkfein said she did not behave in an appropriate manner. But she said Tuesday she thought she was mistreated, given her age.

“I just lost my temper. I do that maybe twice a year, but that day I lost it,” Winkfein said.

Her attorney, Thomas Tourtellotte, said his client twice offered to sign the ticket being written by the officer.

“He could have easily said: ‘Let’s step over here, let’s sign the ticket, and we can all go down the road,’” Tourtellotte said

.

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