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judgment below.
OPINIONS BELOW
JURISDICTION
The date on which the United States Court of Appeals decided my case was
A timely petition for rehearing was denied the United States Court of
Appeals on October 20, 2007 and a copy of the order denying rehearing appears at
Appendix B.
1
STATEMENT
This Petition shows that the United States District Court and United States
Court of Appeals entered decisions in conflict with this Court and other United
States District Courts and Courts of Appeals on the same important matter. The
action in the District Court addressed very important Constitutional issues beyond
Petitioner1 filed a prima facie Pro se2 complaint in U.S. District Court
December 5, 2006 citing Civil and Constitutional Rights violations due to the
denial of due process of law, and violations concerning proceedings in Probate and
Superior Courts.
June 2002, DeKalb County Probate Court Clerk Jeryl Rosh,3 impersonating
1
Petitioner is a disabled adult male receiving Supplemental Security Income, denied Legal-Aid,
Pro Bono assistance, unable to locate an attorney willing to work full contingency and without
assets to obtain legal counsel, was forced to proceed as Pro Se. * Legal-Aid in Georgia is a
Federally Funded program, Petitioner qualifies for the program, like most of Georgia’s federally
funded programs for which Petitioner qualifies and is eligible, he denied. *Adult Protective
Services (APS) Georgia Dep’t of Health and Human Services under O.C.G.A. §§30-5-1 – 30-5-
10 which is run through DeKalb County Solicitor’s Office’ of “Disabled and Adult Protective
Services” and also receives Federal Funding and denied Petitioner assistance.
2
“the court is under a duty to examine the complaint to determine if the allegations provide for
relief on any possible theory.” Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th
Cir. 1975) quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1971). Thus, when a court
entertains to dismiss a pro se action before it, if there is any possible theory that would entitle the
Plaintiff to relief, even one the Plaintiff hasn’t thought of, the court must not dismiss the case.
3
Jeryl Rosh was elected November 2004 to become Judge of Probate Court in January 2005.
2
Police Report; and without ever being indicted, charged, arrested, never allowed to
face his accuser in Court, and without being allowed to present evidence on his
behalf, Clerk Rosh declared Petitioner guilty of financial fraud and elder abuse.
Probate Court lacked personal and subject matter jurisdiction; Probate Courts in
Georgia lack jurisdiction over criminal matters, and Probate Clerks are not
permitted to act when the act is judicial in nature, and not allowed to preside over
contested matters.
O.C.G.A. §15-9-36.
“(a) The judges of the probate courts are, …clerks of their own
courts; but they may appoint one or more clerks,… shall also
have the authority to appoint one of their clerks as chief clerk…
(b) The appointed clerks, … chief clerk … may do all acts the
judges of the probate courts could do which are not judicial in
their nature and … in which they are authorized to act for the
judge …
(c)(1) In addition to other powers … the chief clerk of the
probate judge or…may exercise all the jurisdiction of the judge
of the probate court concerning uncontested matters in the
probate court …”
incompetent aunt Jean Caffrey. Joyner seized Petitioner’s assets4 and other
property, which included real property that Petitioner possessed property interest.
Seven months after Joyner filed a civil action against Petitioner, Ms. Caffrey
4
The assets had been in the name of Janet McDonald and James Stegeman Joint Tenants With
Rights of Survivorship, the aunt’s name was Geneva S. Caffrey.
3
passed away.5 With two Wills and a caveat filed, a Personal Rep. could not be
appointed for the Superior Court action; Superior Court Judge Hunter, allowed the
March 24, 2004 eleven months later, a few days before Jury trial, agreement
to settle was reached. Both attorneys signed the agreement. Petitioner’s only
obligation was to withdraw the caveat, which he did. Opposing party refused to
Petitioner’s attorney deserted him, he found that the agreement had been
modified several times by the opposing attorney Robert Turner. Petitioner wrote to
Judge Hunter, asked the proper agreement be filed with the Court so he could
regain access to accounts which he had been refused all access and information
about for two and a half years. Judge Hunter did nothing.
Judge Hunter set the case for Jury trial to begin October 18, 2004.
September 2004, Petitioner had to retain new counsel,6 Stephen Apolinsky, to file
Motion to Enforce the agreement and have the case removed from the docket.
Judge Hunter refused to accept the original agreement.7 Petitioner and Ms.
5
The elderly aunt was removed from her home, hidden from all family who had looked for her,
told no one cared about her, a new Will was made immediately after the Probate hearing; she was
cremated and buried under the wrong name and in the wrong place before family found out she
had passed away.
6
Ms. McDonald, using money inherited from her Mother, had paid all of Ms. Williams fees on
the promise that Petitioner would prevail; Ms. McDonald paid Mr. Apolinsky for representation
as well
7
A new less favorable agreement had to be drawn up.
4
McDonald regained in name only, the single account left out of several accounts,
but were refused access by Wachovia; the account had nothing in it.
accounts at Wachovia, was to research the actions of Probate and Superior Courts
and Caffrey’s Guardian. When the investigation was completed, Mr. Apolinsky
said he couldn’t work on full contingency, and to try “an attorney in Macon,
April 2005, Administrator of Ms. Caffrey’s Estate filed for discharge falsely
swearing all debts of the estate had been satisfied.8 Petitioner filed Objection to the
Petitioner, as the only known family member of Caffrey, has been taken to
to notify them of the death and take care of the matter. Several credit card
companies have written off as much as twenty-five thousand dollars due to lack of
5
Administrator waited six months, filed for Summary Judgment. Petitioner
attempted to respond to Summary Judgment, Probate law Clerk Mr. Fowler told
Petitioner he could file nothing. After a lengthy debate about “Rights”, Mr. Fowler
agreed to allow filing of Response, but the documents were held unfiled until after
Petitioner filed a timely Notice of Appeal, Ms. McDonald paid the Appeal
fee. Probate Court held the Notice and check until time to file Notice of Appeal
had expired, mailed it back saying that Petitioner would not be allowed to appeal.
December 2005, Petitioner, acting Pro Se, filed in Superior Court Probate
Appeal and Motion for Void Judgment, assigned to Judge Scott. March 2005
Petitioner filed Motion for Judgment and Notice of Intent to Appeal. For three
years, the appeal and void judgment have set with no activity. October 2008 Ms.
26, 2008.12 Although the Court failed to Notice Petitioner of the hearing, he
attended. There was no appearance by opposition. Every case in which only one
side of the case appeared, that party was granted the relief they sought. During the
11
After conclusion of the hearing, Judge Rosh and the administrator’s attorney Mr. Turner
participated in ex-parte communication discussing whether or not demand for payment of the
loan and debts had been made.
12
There had already been a peremptory hearing in June 2008, for which Petitioner had not been
Noticed. Ms. McDonald’s internet connection had been blocked from access until she changed
internet providers. She was then able to connect to the County’s Dockets, found that there had
already been a hearing as shown in Appendix F, Addendum 1, page 1.
6
hearing, when Petitioner was called and responded, he was told they would get
back to him. Petitioner was called three times, the last time, after all parties had
the opportunity to address and be addressed,13 he was again told they would get
back to him then the Judge, clerks and court reporter left the courtroom.
Now Petitioner has been alerted by Ms. McDonald that the Appeal and void
judgment has been set for a Jury trial January 26, 2009. Again, no Notice has been
Hicks Law Firm employer of attorney Ms. Williams filed an action in State
Court against Petitioner wanting payment although Petitioner had been deserted
and new counsel had to be obtained to end the case. Petitioner, again denied by
Legal Aid, timely filed a Pro Se answer and counterclaim. That case has been in
State Court for three years with little to no activity. Petitioner filed several motions
which went un-addressed. The one hearing that was set, Plaintiff’s counsel sent a
letter of conflict, Petitioner called the Court clerk, was told the hearing was to be
postponed. Apparently the hearing was held anyway, Petitioner’s Motions were all
happened. That was two years ago. To date, no activity in the case.14 June 2008,
13
Petitioner was denied the Right to be heard, a regular treatment be the Courts at Stone
Mountain Judicial Circuit. The failure to Notice Petitioner of hearings is also a regular treatment
by Superior and State Courts.
14
State Court was named a defendant, however neither the County, nor the State’s attorneys were
representing State Court or the Solicitor’s Office in the action and they had failed to file
7
Petitioner filed Motion for Judgment as a Matter of Law, there has been no Ruling
Petitioner and Ms. McDonald, denied Legal-Aid and Pro Bono attorneys,
and unable to obtain attorney on full contingency, filed a Pro Se action against
Wachovia in Superior Court January 2006. Judge Hunter, the same judge, was
The thirtieth day, Wachovia defectively removed the case to U.S. District
Court on the grounds of diversity, filing removal to the wrong Judge and without
answering the complaint. Failed to file responsive pleadings for several more
days, the filed Motion to Dismiss for failure to state a claim for which relief could
be granted. Since they were in Default, they should not have been allowed to file a
When Petitioner filed Motion for Default, Judge Hunter closed the case.
Petitioner and Ms. McDonald filed Notice of Appeal to Supreme Court, paid the
twenty-five dollars required. Two months passed. Superior Court sent a bill for an
Appeal to the Georgia Court of Appeals for $178.00, the bill was paid. The Appeal
never left Superior Court and the $178.00 never mentioned again. U.S. District
Court Judge Duffey remanded the case to a different Superior Court Judge, without
ruling on Default. Judge Hunter took the case without “case transfer”. Wachovia
responsive pleadings. District Court’s Docket Report shows no representation for State Court or
Solicitor’s Office, The Docket for Court of Appeals shows State Court represented by Attorney
General’s Office
8
failed to move to open default, but paid the fee to open default, there was no
hearing.
filed to Superior Court.15 Petitioner filed the withdrawal, Wachovia filed nothing.
The case was in Superior Court fifteen months, with never a hearing,
Petitioner was not allowed to file any evidence, then case dismissed under
The case at bar was in U.S. District Court for seven months. Although
hearings, the issues of statute of limitations, immunity, and all Motions 16 un-
addressed until the final Ruling. All Petitioner’s Motions denied or found Moot.
limitations and/or immunity. Petitioner had shown a single, on-going and current
conspiracy, carried on through multiple parties, acting under color of law to deny
15
Withdrawal of Appeal must be agreed upon by all parties and filed not to Superior Court, but to
the Appellate Court: Court of Appeals of Georgia, Rule 41. Preparation and Filing. (g) Motion to
Withdraw Appeal. Whenever appellant decides not to pursue an appeal, such party shall
promptly file a motion for permission to withdraw the appeal.
16
There were 102 docket entries when the Court Ruled to dismiss the case.
9
Petitioner his Rights of due process and equal protection.
Had the Courts liberally read Petitioner’s complaint as required, they would
the first action”. Petitioner stated “separate causes of action against individual
Neither the District Court nor the Court of Appeals addressed “conspiracy”,
Further, as Petitioner has pointed out to the Courts, he was forced into Pro
through Adult Protective Services,17 a federally funded state program for which
See Appendix H, pages 13-19 for the statues, rules and/or regulations concerning Disabled and
17
Adult Protection
10
Petitioner is qualifies, is eligible as a disabled person. See Tennessee v. Lane, 124
S.Ct. 1978, 541 U.S. 509, 158 L.Ed.2d 820, 15 A.D. Cases 865 (U.S. 05/17/2004):
violation of due process and equal protection and denial of “property”. The Court
of Appeals stated:
682 F. 2d 886 (11th Cir. 1982), citing Supreme Court case Haines, Vacated, and
Remanded with Instructions; it was held that “read liberally, it invokes Title VII of
11
“pro se pleadings are liberally read, should it appear that the
complaint states more causes of action, the pleading shall be
treated as amended: “While the plaintiff’s pro se civil rights
complaint specifically cites 42 U.S.C.A. §§1983, 1985 and 1986,
read liberally, it invokes Title VII of the Civil Rights Act. 42
U.S.C.A. §2000e et seq. as well. See Haines v. Kerner, 404 U.S.
519, 92 S.Ct. 594, 30 L.Ed. 2d 652 (1972). Oral argument
proceeded on that basis.”
See also:
persons acting under color of law, claims never addressed in the Court of Appeals
or District Court.
with this Court and District Appellate Courts; going against past precedent and the
principles of stare decisis; denying a litigant his Right to Appeal final rulings;
Petitioner has found nowhere that a Court’s failure to address that a litigant
12
is “pro se” or “disabled” excuses them from having to consider pleadings and law
construed, and if there is any possible theory that would entitle the Plaintiff to
relief, even one the Plaintiff hasn’t thought of, the court must not dismiss the case.
Being disabled, a litigant is a member of a protected class and that the violations of
due process were under color of law, thereby §§1983, 1985 are treated differently
Both Probate and Superior Courts manipulated the records and docket
reports, then refused to send to the Appellate Courts timely filed and paid for
appeals of final Rulings. The County and State never denied or disputed this fact,
and for which Petitioner had supplied evidence to the District Court. Neither the
Court of Appeals, nor the District Court made comment on the denial of Appeals.
13
In Rheuark v. Shaw, 547 F.2d 1257, 1259 (5th Cir. 1977), the 5th Cir. held:
Security Income, filed a prima facie Pro Se Complaint in US District Court for on-
going and continuous Civil and Constitutional Rights Violations under color of law
under color of law or color of authority. Petitioner attached “evidence”, 18 over one
hundred (100) documents as Exhibits, which were never rebutted, and none of the
Petitioner has been continually denied both substantial and procedural due
process; and has had every attempt to Appeal Final Rulings either tampered with,
18
FRE, Article III, Rule 301. “In all civil actions and proceedings not otherwise provided for
by Act of Congress or by these rules, a presumption imposes on the party against whom it is
directed the burden of going forward with evidence to rebut or meet the presumption,…”
Article IV, Rule 401. “’Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is consequence to the determination of the action more probable or less
probable than it would be without the evidence.”
14
obstructed, or after submitting the payment for the Appeal,19 the Right to Appeal
has been outright denied. The defendant Courts, Judges, and Clerks never
rebutted or denied this fact; and although this undisputed fact was brought up
numerous times. This Court has held: “denial of the statutory right of appeal is a
impersonating a Judge had declared Petitioner guilty of felonious acts, which led to
his assets and property being seized. Not only did Probate Court lack personal and
This Court over 130 years ago, in Bradley v. Fisher, 80 U.S. 335, 352 (1872)
19
Probate Court accepted the Notice of Appeal and the filing fee, held the Appeal until expiration
of the time to file the Appeal then mailed the check back stating that I could not Appeal. Superior
Court accepted the fee to file Notice of Appeal to Supreme Court, held the Notice for two months
then sent a bill for Appeal to Georgia Court of Appeals. The bill was timely paid, but the Court
continued to hold the Appeal, the Superior Court Appeals Clerk then telephoned to say that there
were no documents or transcript to send, that I needed to withdraw the Notice of Appeal to
Superior Court (which if there had actually been an Appeal to Georgia Court of Appeals, the
withdrawal would have had to be filed in Georgia Court of Appeals, not Superior Court. I filed
the Withdrawal, the opposing party never filed the required Withdrawal (both parties are required
to Withdraw an Appeal). Superior Court never returned or made reference to the $178.00 fee
paid for the Appeal
15
Petitioner pointed out to the Court of Appeals and the District Court that the
him of his constitutional rights by persons acting under color of law. Probate and
Superior Court Judges, that Petitioner had been subjected to acts depriving him of
his constitutional rights under color of law and that the Court must take into
O’Shea v. Littleton 414 U.S. 488 (1974) page 414 U.S. 503:
“Judges who would willfully discriminate…would willfully
deprive the citizen of his constitutional rights, as this complaint
alleges, must take account of 18 U.S.C. §242. See Greenwood v.
Peacock, supra, at 384 U.S. 830; United States v. Price, 383 U.S.
787, 383 U.S. 793-794 (1966); United States v. Guest, 383 U.S.
745, 383 U.S. 753-754 (1966); Screws v. United States, 325 U.S.
941, 325 U.S. 101-106 (1945); United States v. Classic, 313 U.S.
299 (1941).”
“…we have never held…performance of the duties of judicial,…
requires or contemplates the immunization…criminal
deprivations of constitutional rights. Cf. Ex parte Virginia, 100
U.S. 339 (1880). On the contrary, the judicially fashioned
doctrine of official immunity does not reach so far as to
immunize criminal conduct proscribed by an Act of Congress…”
Gravel v. United States, at 408 U.S. 606, 408 U.S. 627 (1972).”
Petitioner’s case, the District Court refused to correct the documents and record on
appeal after a properly filed Motion to do so was filed. The Appellate Court had
been noticed on the defect of record and documents and failed to act. Petitioner
believes this that the District Court at that point joined in the conspiracy and the
Eleventh Circuit’s lack of action to have the records and docket corrected shows
16
they too had joined the conspiracy.
based on the fact that he is disabled and having to proceed Pro Se, the conspirators
knew that Petitioner lacked the assets for legal counsel and they would be able to
Further, the disabled Petitioner has shown that he has been denied
meaningful access to the Courts, that his assets and “property” were seized without
due process of law, in violation of not only The United States Constitution, but The
State of Georgia Constitution as well. And that a State is not immune from suit.
Petitioner has found nowhere that a disabled, protected class cannot sue
under 42 §1983; to the contrary ADA states that §1983 is the proper avenue for
17
redress of Civil Rights violations. Further, the Court of Appeals’ Ruling goes
against U.S. Supreme Court and other Federal Circuit courts precedent.
and the County Solicitor’s office as an “arm of the state” when the State of Georgia
shows otherwise.
18
responsibility for judgments entered against the entity. See
Manders, 338 F.3d at 1309.”
DeKalb County, DeKalb Probate Court, DeKalb State Court and DeKalb
Solicitor’s Office cannot be an “arm of the state”. 1) The State defines DeKalb
County as a body corporate. 2) The State does not control DeKalb County, it is
controlled by Vernon Jones DeKalb County CEO, the County Commissioners, and
the County. 3) DeKalb County provides funds for the County and pays the
19
superior court, and the tax officials … in article IX of the
Georgia Constitution. Compare Truesdel, 197 S.E. at 786 (Ga.
1938) with Ga. Const. Art. IX, Sect. I., Par. III.”
20
<http://www.versuslaw.com/research/wfrmFullDocViewer.aspx>
20
sovereign immunity the municipality possessed." Id., at 647-648,
100 S.Ct., at 1413-14 (footnote omitted).”
“The County Judges are State Court Judges, Probate Judges and
Magistrate Judges and the County prosecutors are the Solicitors
General.” Your Guide to the Georgia Courts
www.georgiacourts.org
Petitioner has been denied due process of law; his assets and other property
21
has been seized without due process of law on the falsified claim that he was guilty
of elder abuse and financial fraud by a Probate Clerk in violation of Georgia statute
law” was “denied any trial at all” for which the Fourteenth Amendment is
supposed to “protect the individual against state action” in which the “federal
U.S. v. Price, 383 U.S. 787 (1966) page 383 U.S. 799 states:
“This is an allegation of state action, …without …due process of
law as required, …by the Fourteenth Amendment, used its
sovereign power and office to release the victims from jail so
that they were not charged and tried, as required by law, but
instead could be intercepted and killed. If the Fourteenth
Amendment forbids denial of counsel, it clearly denounces
denial of any trial at all.”
“The Fourteenth Amendment protects the individual against state
action,… Williams I, 341 U.S. at 341 U.S. 92 (opinion of
Douglas J.)… Page 383 U.S. 800 and is therefore within the
scope of the Fourteenth Amendment.” Page 383 U.S. 806: “…no
State shall deprive any person of life or liberty without due
process of law … direct traditional concern of the Federal
Government, …in which the federal interest has existed for at
least a century, and in which federal participation has intensified
as part of the renewed emphasis upon civil rights.”
one of which is acute Bi-Polar Disorder. Petitioner has only his integrity and
reputation. That was taken from him by acts of persons under color of law.
Officer Porter continues to state Appellant is guilty. The Court of Appeals and
District Court goes further and attempts to have one believe that this case was
22
brought because Officer Porter and other defendants “caused Plaintiff ‘to lose
the Family Violence Act is charged and arrested; only the District Attorney has
decision, there are no other actions. Both the U.S. and Georgia Constitutions
guarantee that you are innocent until proven guilty in a court of law with a jury of
your peers, and have the Right to face, confront witnesses and accusers. Appellant
“was not charged”, was “denied counsel,” was not “tried as required by law”.
law or authority are criminal acts. The Courts have refused to recognize the
disabled/protected status and granted dismissal to all defendants though their acts
are criminal in nature with a five year statute of limitations, §§241, 242, and
23
Punishment … fine or … up to ten years, or both; …if death results,
or …kidnapping or an attempt to kidnap, …, shall be fined …or
imprisoned … years…life or… to death.”
Petitioner, as well as his aunt have had their Rights grossly violated by
Respondents. Petitioner’s aunt paid the ultimate price, she died from the acts.
Judge Duffey makes reference that Petitioner did not bring a wrongful death case,
and failed to plead the aunt’s Rights violations. Upon receiving the records from
the home where Ms. Caffrey was confined, Petitioner did contact several attorneys
on the matter and was told because Petitioner was not Personal Representative or
Administrator of Caffrey’s Estate, that he could not bring an action related to her
death. Thus, the reason DeKalb County Probate Court keeping jurisdiction, when
the matter of the Wills should have gone to a different County,22 and the
although Ms. Caffrey obviously had no property and did not consider Stone Mountain and
22
24
falsification of many items on the death certificate, especially the “residence”
Petitioner has suffered manifest injustice. The Rulings in District Court and
the Court of Appeals shows to DeKalb County, Superior Court, State Court and the
other named Defendants, that it is acceptable to abuse, and violate the Rights of
disabled, and/or Pro Se litigants; that Citizens of Georgia, and Citizens of the
United States falling within these categories have less Rights than prisoners.
citizens, and Rights of Pro Se litigants. The pattern must not be allowed to
continue. This Supreme Court, the Highest Court of the land, must step in and let
these entities know that this unacceptable treatment of United States and Georgia
CONCLUSION
25
Respectfully submitted this 20th day of January, 2009,
By: ______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd.
Stone Mountain, GA 30083
(404) 300-9782
No. ___________________________
_______________________________
IN THE
26
SUPREME COURT OF THE UNITED STATES
___________________________________
VS.
PROOF OF SERVICE
27
Brenda R. Raspberry
DeKalb County Law Department
1300 Commerce Drive, 5th Floor
Decatur, GA 30030
I declare under penalty of perjury that the foregoing is true and correct, this
20th day of January, 2009
________________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd.
Stone Mountain, GA 30083
(404) 300-9782
28