THE CONTINUING SAGA OF BOB

    Bob has been riding hard on the trail of the killers of Anna Mae Pictou Aquash.  He has had annoying disruptions to his serious task, by an annoying white woman, who keeps questioning his motives.   Having sucessfully send off Arlo Looking Cloud to the big house, Bob doesn't want or need to be distracted in the upcoming trial of John Graham, whom he is hell-bent on seeing that Graham becomes room mates with Arlo.  Judge Andrew Bogue was assigned to handle this fly in the ointment, and help grease the wheels of justice.

UNITED STATES COURT OF APPEAL

 

IN THE EIGHTH CIRCUIT

 

 

Case No. 07-3155

 

Janis Schmidt,

 

                        Appellant

 

v. 

 

Larry Bodin, BIA Supt.,

Frieda Brewer Marshall, BIA Realty Officer,

Robert Ecoffey, BIA Area Director,

Bureau of Indian Affairs

Lisa F. Cook, tribal judge,

Oglala Sioux Tribe,

OST Public Safety,

Captain Miltain Bianis,

Gerald Big Crow, OST Executive Officer,

Ann Apple, tribal prosecutor,

Didier DuPont,

Red Cloud Indian School,

Fr. Peter Klink,

Connie Whirlwind Horse,

Dale Vocu,,

 

Appellees

 

 

Appeal from U.S. District Court for the District of South Dakota

(5:06-cv-05034-AWB)

 

 

            PETITION FOR REHEARING EN BANC

 

 

 

 

                                                                                    Janis Schmidt 

                                                                                   

418 Griffin St

                                                                                    Warwick, ND  58381

 

 

 

 

COMES NOW THE APPELLANT,  Janis Schmidt, hereby requests a Rehearing En Banc  of this court's April 9, 2008 Order affirming judgment in accordance with the Opinion of the district court, pursuant to Fed. R. App. P. 35.

            Pursuant to Fed. R. App. P. 35, en banc consideration by this court is appropriate when it is necessary to maintain uniformity of the court's decisions, or if the proceeding involves a question of exceptional importance.  The court's Order necessitates en banc review for both of these reasons, as discussed below.  Because I was not afforded the opportunity to brief my appeal, it is  possible that this honorable court's Order is the result of the court having overlooked or misapprehended my arguments and evidence as presented to trial court, that were not addressed at all in this honorable Court’s OPINION.

In support of Appellant’s petition for rehearing en banc, in particular, excellent grounds exist for en banc consideration, for all of the following reasons:

(1)        consideration by the full Court is necessary to secure and maintain overall uniformity of its decisions;

(2)        the instant proceeding involves several highly unusual questions of exceptional national importance;  and,

(3)        the OPINION of April 9, 2008,  conflicts with existing opinions by other courts of appeal, and it substantially affects rules of national application in which there is an overriding need for national uniformity.

ISSUES

1.      Whether the court erroneously dismissed my Complaint brought under Bivens with federal causes of action under the First, Fourth, Fifth, and Fourteenth Amendments for which damages are recoverable when I submitted proof that my damaged resulted from the federal, state, tribal, and private defendants’ violations of those Amendments? 

2.      Whether a case can be dismissed, before Appellant had an opportunity to submit an appeals brief.

3.      Whether tribal defendants are obligated to abide by the U.S. Constitution?

4.      Whether action can be dismissed when evidence has been presented that proves all claims to be true, and also proves Fraud Upon the Court?

5.      Whether the court improperly dismissed under 28 U.S.C. 1915(e)(2)(B)(i) when Plaintiff had presented proven causes of action?

 

I never got the opportunity to file a brief before the 8^th Circuit dismissed my appeal.  Trial Court  dismissed as frivolous, even though I had stated a claim upon which relief could be granted and  had submitted a preponderance of evidence, not only stating a claim upon which relief can be granted, but proving Fraud Upon the Court.   (Doc #17,  Appendix, Ex 1,  Schmidt v. Bodin, et al.,  Complaint, with Preliminary Statement and Jurisdiction)

In applying section 1915, the Trial court dismiss my case by falsely presenting facts to fit the 1915 ruling.  I have summarized my facts as presented in my Complaint (Doc #17)  and placed in the Appendix. (Doc #19, Ex 2, Summary of Facts)  “All the factual allegations must be weighed in favor of the plaintiff, unless they are clearly baseless.”  Hernandez, 504 U.S. at 32-33.  

Summary of Claims Made in my Complaint

I have an absolute right to state my facts in my complaint which the court and defendants were obliged to accept as true.  This was not done in my case.  Viewing my facts in the light most favorable to me was not done at the proper stage with my case before the Trial court.  I ask the Panel En Banc to consider my facts before deciding to dismiss my case. 

My Complaint is premised on these facts: (1) A conspiracy of members and officials used unconstitutional methods under color of law to deprive me of my property and liberty in which federal defendants, (2)  BIA Supt Larry Bodin, did fraudulently mail an official BIA eviction letter on October 20, 2003   (3) The letter was fraudulent because I was not trespassing on Louise Big Boy's land because Big Boy did not own any land on 3 Mile Creek on Oct 20, 2003.  (4)  BIA land office provided me with deeds to disputed property, May 2002, proof that 158 acres was owned by U.S. Government, and 2 acres owned by Holy Rosary Mission, aka Red Cloud Indian School.  (5) BIA has jurisdiction over all land, leasing, and trespass issues on Indian reservations, as stated in C.F.R. 166:800.   (6) Tribal court does not have subject matter jurisdiction over land issues without permission from the Tribal Council (7) Tribal Council had suspended tribal judge Lisa Cook on June 23, 2004, and had issued censure.  Shortly thereafter, Judge Cook was permanently removed from office.  (8)Tribal court does not have jurisdiction over nonmembers without their consent. (9) The eviction letter was sent by BIA Supt Larry Bodin, which started the eviction process. (10) Defendants did not explain how tribal court assumed jurisdiction over the BIA, nor does BIA, Bodin, Ecoffey, and Marshall explain how they lost jurisdiction.  (11)  Red Cloud Indian School through Fr. Klink took part in land conversion by selling 2 acres of land with my house to Oglala Sioux Tribe AFTER BIA Supt. Larry Bodin had sent me a certified letter of Trespass in which he stated I was trespassing on Louise Big Boy’s land, when in truth the land was owned by Red Cloud Indian School.  (12)  No hearing for land ownership or trespass  ever took place, not in tribal court or the BIA, as both lack proof that a hearing took place because it didn’t. (13)  The tribal Eviction Order lacked jurisdiction and was not based on law. (14) I was arrested by OST Tribal Police, without a Warrant, court order,  probable cause, or jurisdiction. (15) I was arrested a second time by Sheriff Daggot, without a Warrant,  probable cause, or jurisdiction.  (16) I was jailed in Hot Springs County Jail on the orders of Lance Russell, who lacked jurisdiction to arrest or jail me. (17) Tribal Judge Lisa Cook was suspended when she wrote her

2^nd Court

Order without any attempt at a hearing. (18)  State Defendants Russell, Daggot, and Terrall tampered with  2^nd Court Order into “Pick Up Order” and submitted to Trial court as evidence in summary judgment, which then the Trial court dismissed Big Boy by granting qualified immunity to defendants for their fraudulent activities.  (18)  I was deprived of my property and liberty without due process.

Procedural History in Lieu of Argument

I first filed a claim on May 19, 2005, Schmidt v. Big Boy, et al, Judge Schreier assigned.  (Doc #1, Big Boy)  I filed a Motion to amend to add federal defendants Larry Bodin, Frieda Brewer Marshall, Robert Ecoffey and BIA, with Administrative Determination of Claim attached on February 6, 2005.  (Doc #81, 82,  Big Boy)  Big Boy court denied my motion to add federal defendants, in an Order in which she granted motions to dismiss to tribal defendants;  (Doc #103, Big Boy) regardless of the fact I had presented a brief which proved that tribal judge Lisa Cook lacked jurisdiction over my eviction. I also presented evidence.  (Doc #75,  Big Boy, Ex 3, Opposition to Cook’s Motion to Dismiss on Grounds of Immunity and Lack of Jurisdiction)  Big Boy court never ruled on Docket #75.  I presented evidence to the court that tribal defendants had acted without jurisdiction and without law, and I also stated a claim upon which relief could be granted.  Therefore, it was an abuse of power for the court to totally ignore my pro se brief, and dismiss under FRCP 12(b)(1) and 12(b)(6).   This ruling is an abomination upon the court.  I ask this court to scrutinize this brief because all court fumbles stemmed from this point. (Doc #103, Big Boy) 

It is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and the frivolousness standard of 1915(d) were devised to serve distinctive goals, and that while the overlap between these two standards is considerable, it does not follow that a complaint which falls afoul of the former standard will invariably fall afoul of the latter. Appealing though petitioners’ proposal may appear as a broadbrush means of pruning meritless complaints from the federal docket, as a matter of statutory construction it is untenable.

 

Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon, supra, at 73, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations. District court judges looking to dismiss claims on such grounds must look elsewhere for legal support.

 

Because I had only a 6 month mandate in which to file a complaint against the federal defendants, I had to file this lawsuit, which I did on May 4, 2006, with a preponderance of evidence, Schmidt v. Bodin.  (Doc #1, Bodin)  Judge Schreier assigned to the case.  I filed an affidavit to proceed in forma pauperis (Id #3)  which was granted.  (Id #4) 

I filed motion for Recusal on 6-19-06.  (Id #6)  I filed a Mandamus on July 21, 2006, to the 8^th Circuit, because my case had been so piecemealed that I could no longer properly pursue my 1983 claims, with essential parties dismissed, refusing to add essential parties.  Judge Schreier refused to recuse,  (Id #8)   instead she reassigned the case to Judge Andrew Bogue.)  (Id #10) 

Judge Bogue granted Motion for Marshal Service of Summons,  (Id #12) which included Larry Bodin.  (Id #32)  On November 17, 2006, I filed an Amended Complaint with evidence. (Id #17)   I motioned court for Marshals to serve Amended Complaint and Summons.  (Id #18)  A Complaint and Summons was served with Return of Service executed upon Marty Jackley, U.S. Attorney for South Dakota, representing the BIA.  (Id #40)  Service was executed on all Defendants, except Larry Bodin, (Id #53)   the BIA Supt who issued the official BIA letter of eviction, ordering me from land he knew was owned by Red Cloud Indian School.

The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342-343 (1948). Toward this end, 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. See Franklin v. Murphy, 745 F.2d 1221, 1226 (CA9 1984).

Answer and motions to dismiss were filed by Oglala Sioux Tribe, OST Tribal Police, Ann Apple, Gerald Big Crow, Milton Bianas, and Lisa F. Cook by Mario Gonzalez.  (Id #57, 58)  Lisa Cook then entered a 2^nd Answer and Motion to Dismiss with Sanctions, and an Affidavit, apart from her attorney’s response.  She denied that she had ever been suspended.  (Id # 62-69)  I filed a brief in Opposition to Cook’s motions,  (Id #81)  with evidence of Tribal Council minutes that proves Lisa Cook was suspended and censured, June 23, 2004.   The court cannot grant sovereign immunity to defendants who issue court orders without jurisdiction, in violation of OST Code of Law, and while under suspension.  Can there be anything more unconstitutional that this?  Cook’s motions were fraudulently filed with intent to deceive the court.  I presented Fraud Upon the Court in my brief with evidence the definitely proves the fraud.  I filed a motion for Trial court to declare Lisa Cook’s court orders null and void.  (Doc 80) The court could not legally dismiss my case as frivolous or any other reason on the basis of this brief.    This is a very important brief.   (Doc 70, 71, Bodin,  Ex 4,  Opposition to Cook that proves Fraud Upon the Court)  I filed Tribal Minutes as proof of Fraud Upon the Court by Cook and tribal defendants.  (Doc #82, Ex 5, OST Tribal Minutes suspending Lisa Cook with censure)  If this court has upheld the Trial court ruling that Indian tribes enjoy absolute sovereign immunity, then when the governing body, the Tribal Council, rules, this court has an obligation to accept their ruling as fact.  This case should have been decided in my favor on this fact alone.  Indeed, I motioned the Trial court to decide, summary judgment, in my favor, based on this and other exhibits, 33 all told, presented to Trial court.  Yet Trial court dismissed my case as frivolous, ruling that under 1915 the judge has every right to dismiss cases whenever he pleases.  Every judge en banc, MUST read through carefully, the Oglala Sioux Tribal Council’s legislation regarding tribal judge Lisa Cook

 

 

Process Clause.

 When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not.

Close questions of federal law, including claims filed pursuant to 42 U.S.C. 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court’s granting review, under its certiorari jurisdiction, to resolve them. See, e. g., Estelle v. Gamble, 429 U.S. 97 (1976); McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Jones v. Alfred Mayer Co., 392 U.S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous [Page 490 U.S. 319, 329]  is to distort measurably the meaning of frivolousness both in common and legal parlance.

            It must be remembered that the Big Boy case was still open, and so I had 2 cases, identical to each other, in court.  I was experiencing unusual difficulty in getting all parties involve together in one case, which the Trial court was determined not to let that happen.  I filed a motion of Joinder both Big Boy and Bodin. On February 26, 2007.    (Big Boy, Doc 177)  This motion was not acknowledged by either judge Schreier or Bogue and was changed in Bodin to read that I added.  (Bodin, Doc 83)  The trial court’s solution was to dismiss Big Boy by granting summary judgment, March 20, 2007.  (Big Boy, Doc 180, 181)   Neither judge would allow me to have all essential parties together in one case.    Being pro se, I didn’t know what else to do but to file with Bodin,  to amend to add the defendents Russell, Daggot, and Terrall, April 10, 2007.   (Bodin, Doc 93) State defendant’s attorney filed motions of objections in the Bodin case, yet adamantly refused to become a party to the suit.  They even submitted the same perjured documents to obtain summary judgment in Big Boy and presented to the Bodin court.  (Bodin, Doc 89)   Court denied my motion to join and my motion to add defendants.  (Bodin, Doc 99) 

            After prolonged delays, on May 23, 2007, the federal defendants finally made their Response by moving to dismiss under FRCP 12(b)(1),  12(b)(6), and 28 U.S.C. 1915.  (Doc #108)  in which they submitted Affidavits of evidence for dismissal.  (Doc 109, 110)  In their arguments for dismissal, the government argued that because BIA Superintendent Larry Bodin had not been served a Complaint and Summons, that my whole claim was invalid and frivolous.  As pro se, up against very formidable opponents, I was bullied into thinking I had done something wrong.  Yet the record shows that I was granted in forma pauperis standing, (Doc 4) and granted permission for Marshals to serve the Summons.  (Doc 12)  and that Summons was issued as to Larry Bodin.  (Doc 32)  All summons were executed, except for Larry Bodin, December 15, 2006.  (Doc 53)  I hired a private detective who located Bodin within 2 hours time.  I provided court with Mailing information.  (Doc 119)  and I motioned the Court a second time, to order the Marshals to serve Bodin.  (Doc 121)    Marshals refused to serve Summons.  The Trial court refused to order the Marshals to serve the Summons.  (Doc 142)   Government objected to my motion to have Marshals serve Bodin, and because he wasn’t served, Government claimed my whole case was invalid.  (Doc 127)   I responded to Government’s Response with brief and proposed amended complaint to clarify inconsistencies brought up by the government, such as the Government’s claim that I was bound by FTCA to argue my case, and that I could not use Bivens.  I argued that it was my right to bring my action to court under Bivens, 42 U.S.C. 1983, ICRA, and all pendant state law and tribal law as it applied. (Doc 132)  I offered an Affidavit of evidence, submitting 36 Exhibits that prove my case.  (Doc 137, Ex )  This brought a number of objections from all defendants, including state defendants, who were offering up motions to the court, even though they were not party to this suit.  I filed a motion to strike interlopers or, in alternative, add as defendants.  (Doc 139)  On August 15, the Trial court issued its own dismissal of my case, exercising 28 U.S.C. 1915(e)(2), claiming I had brought a frivolous and malicious claim for the purpose of harassing the defendants. 

I appealed the decision on August 22, 2007.  I applied for in forma pauperis to trial court.  Trial court refused me IFP.  I applied to 8^th Circuit for IFP, which was granted, but not before I paid the $450 filing fee.  Eighth circuit never issued a briefing schedule.  My 3 cases were consolidated, Big Boy, Fire Thunder, and Bodin.  My question to the Panel is, how can my Bodin case be dismissed before I was allowed to brief it?  Secondly, how can other two cases be dismissed, when the cases were consolidated?  Since I was not allowed to brief the Bodin case, and I did pay the $450 filing fee, I must insist the Court remit that fee to me. 

4^th Amendment Cause of Action from Bodin Complaint

COUNT II:  VIOLATION OF THE FOURTH AMENDMENT

               177. Plaintiff realleges and incorporates herein the allegations contained in Paragraphs 1 through 176 of this Complaint.

               “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the thing or things to be seized.”

               By the aforesaid improper and malicious activities, the Defendants deprived the Plaintiff of her right to be free from unreasonable seizure as guaranteed by the Fourth Amendment of the United States Constitution, in that Defendants seized the Plaintiff, her house, papers, and effects when she had called the police for a robbery.  Defendants seized her person, removed her from her house without a warrant or court order, and incarcerated her.  An arrest and incarceration without a warrant or probable cause, the most intrusive kind of seizure imaginable, was perpetuated upon the Plaintiff by the Defendants, not because they had probable cause, but because they wished to discredit and destroy the Plaintiff for having exposed their illegal actions.

               The  Defendants unlawfully, unconstitutionally, unethically, outrageously, immorally, maliciously, and willfully, assumed they had immunity to intrude, trample, invade, and seize the Plaintiff, her property, her papers and effects without probable cause and without a Warrant, which the Fourth Amendment implies that all warrantless seizures are unreasonable.[1][1]    Defendants intruded in a judicially unauthorized manner and wantonly and perversely violated Plaintiff’s Fourth Constitutional right to be secure from terrorizing and traumatizing actions.  The behavior of the Defendants strains the limits of reasonableness.  Defendants intentions was not to follow procedure, policy, or law or the U.S. Constitution, but to circumvent the law.

               The aforesaid actions of defendants an unlawful invasion of plaintiff’s privacy, false arrest and abuse of process and malicious prosecution, all in violation of the laws of the State of South Dakota, which this Court may adjudicate as pendant to the other causes of action.

               Plaintiff was well-known though-out the Reservation as an artist, teacher, gardener, Girl Scout leader and advocate for Indian rights.  Law officers had no probable cause, and no Warrant.   Since OST police officers arrested the Plaintiff without a Warrant, and since no Order had issued,  the actions of Judge Cook and the Defendants were illegal.   Since Sheriff Daggot had arrested Plaintiff without a Warrant and without Court Orders, his arrest and subsequent incarceration of Plaintiff was illegal and outside of jurisdiction of Fall River County.  State prosecutor Lance Russell refused to turn over records,  knowing that withholding exculpatory evidence is actionable.   A reasonable person would have and should have questioned the advisability of arresting and jailing the Plaintiff without a Warrant, without probable cause, and without jurisdiction.

               188.   The malicious seizure of documents, papers, property, effects, and person, the. illegal court orders without a hearing, without a Warrant,  the administrative falsification of documents, false statements, the Defendants violated Plaintiff’s right to be secure in her person and property, papers, and effects  under the Fourth Amendment of the U.S. Constitution, and the Indian Civil Rights Act, sec. 2, and 42 U.S.C. 1983.

               189.   As a result of Defendants’ wrongful actions, Janis Schmidt has been damaged in an amount to be proven at trial.

               190.   In addition, Janis Schmidt is entitled to punitive relief Acting under the color of law, Defendants worked a denial of Schmidt’s rights, privileges, or immunities secured by the United States Constitution or by Federal law and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, to wit, they sought and got court orders based on their misrepresentations, to seize her person, jail her, seize her property, papers, and effects without a Warrant or Court hearing.           

 

 

 

Conclusion

I have proven that I filed a claim that stated causes of action upon which relief could be granted.   Dismissing my constitutional claims was in itself unconstitutional.   Trial Court had no basis to dismiss under 1915.  I ask the entire Panel to review to see if my procedural and substansive rights have been violated by this decision.  I ask the Panel en banc to allow me my day in court to prove my case, since I have demonstrated a serious cause of action which should have never been dismissed under 1915.

Submitted this 20^th day of June, 2008.

                                                            Respectfully submitted,

                                                            Janis Schmidt                                                                                                                 418 Griffin St.                                                                                                Warwick, ND  58381