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JAMES B. STEGEMAN,
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO: 1:08-CV-1971-WSD
vs.
COMES NOW, James Stegeman and Janet McDonald and file their
FACTS
property easement dispute with Georgia Power Company and Georgia Power
Company Forestry Department,1 at the time of filing the case at bar, Superior Court
1
Referred to hereinafter as “GA Power”
2
Judge Becker as a Defendant, has a personal interest in the Superior Court action,
should have, but failed to recuse or disqualify herself.
MATTERS IRRELEVANT TO THIS CASE
Judge Becker4 attempts to cloud the issues of this case with remarks wholly
irrelevant to the matters at hand: “…another series …Plaintiffs have sought relief
“financial predicaments” are made to bias and prejudice the Court, and should be
Court, it was Remanded, continued for another year. Stegeman v. State of Georgia
a case in which Stegeman, a disabled adult, was attempting to enforce his Civil and
Constitutional Rights.5 Both cases are irrelevant and immaterial to the case at bar.
Before Plaintiffs filed the Superior Court action, they attempted to remedy
3
Motion to Dismiss referred to hereinafter as “MTD”
4
Superior Court and Judge Becker are the only Defendants concerned in this
Motion to Dismiss and referred to hereinafter as “these defendants”.
5
Should the state of Georgia protect the rights of the disabled, (Georgia receives
Federal funding for Legal-Aid programs for disabled) Stegeman as homeowner
would have had Georgia’s Legal-Aid Program or a Georgia Bar Pro Bono counsel
appointed to protect his property and Rights preventing the necessity of both the
Superior Court action and this District Court action
2
the situation in several ways. First they tried to deal with GA Power directly, that
didn’t work. GA Power insisted they had easement rights through an easement
map shows power lines cross the street before Plaintiffs’ property.
Plaintiffs contacted several GA entities about the situation due to fact that
Georgia and Federal Constitutions forbid taking of property without due process
and just compensation, they did nothing. Plaintiffs and GA Power Forestry Dept.,
Manager Nancy Huddleston had written Certified letters back in forth; Plaintiffs
informed GA Power there were no easement rights, and criminal charges would be
property, Plaintiffs went to DeKalb County Magistrate Court for criminal charges.
6
The 1937 easement document has the name as then landowner as Dr. R. F. Wells;
the 1941 document has the name as R. F. Wells; There was no R. F. Wells in Stone
Mountain, ever; neither document had proper both the District and Land Lot and
the spelling of the road. The 1937 map shows that A. O. Fields was the landowner
of Plaintiffs’ property although the name Dr. R. F. Wells had been penciled in at
some time. The problem with that being, there was never a Dr. R. F. Wells in Stone
Mountain.
3
Although Magistrate Judge Whiteman did not issue warrants for arrest, she set a
hearing to show cause. Judge Whiteman did not preside over the hearing, the
presiding Judge refused to look at any documents. GA Power swore under penalty
of perjury that they had a legal easement rights, the pole next door to Plaintiffs had
Even after having to appear for a hearing to show cause for criminal charges,
GA Power still refused to take the matter into the Courts for Declaratory
Plaintiffs received the results from the internal investigation conducted after
Plaintiffs formal complaint with Georgia State Patrol. Plaintiffs found that the
State Patrol Senior Troopers Mathis and Slappy had been hired as “personal
security”; GA Power supervisor “Matt Goff” had told the Troopers that the
homeowners said they “would kill” him should he come to the property to enforce
GA Power’s easement rights, Matt Goff also told the Troopers that GA Power had
the proper legal court documents to cut the trees. Both statements are untrue.
Plaintiffs were forced to file the Superior Court action because of Matt
Goff’s allegations to the State Patrol Troopers. Plaintiffs have discussed the matter
4
with law enforcement personnel, who assured them that should anything happen to
Matt Goff, Plaintiffs would be the major suspect; should there be no other suspects,
Plaintiffs’ did seek redress for State and Federal Constitutional violations
within the Superior Court the Court refused to address the violations.
impartial and disinterested tribunal”. Marshall v. Jerrico, Inc., 466 U.S. 238, 242
(1980); “an absence of actual bias” In Re Murchison, 349 U.S. 133, 136 (1955).
“Redress for such a violation is available under 42 U.S.C. §1983 when the
constitutional right is violated under color of state law. A private attorney who
conspires with a state judge is with §1983’s purview.” Casa Marie, Inc. v.
The record shows that Plaintiffs filed this action in District Court on June 9,
2008. Judge Becker was served with Summons and Complaint @ 9:47 a.m. June
10, 2008. The Superior Court was served through Georgia’s Attorney General,
Thurbert E. Baker with Summons and Complaint on June 10, 2008 @ 1:48 p.m.
It is well established law that a Judge with a personal interest in a case must
5
disqualify themselves from the case; being a defendant in Federal Court was cause
to disqualify. June 11, 2008 Judge Becker, again with no hearing, signed an Order
Judicial Impeachment
Judge Becker in an act of retaliation, the day after being served with
Superior Court action. Judge Becker has shown a blatant disregard for both the
disqualified to rule in the Superior Court action, such are grounds for impeachment
O.C.G.A. §15-6-3
“(a) When from any cause a judge of the superior court is
disqualified…he shall procure the services of another superior
court judge…
(b) Failure of a judge to comply….is a ground for
impeachment.”
Further, every ruling by Judge Becker has been held without notifying
Plaintiffs, the Order Dismissing Plaintiffs’ case was held for ten days by Judge
Becker’s Court until Saturday, June 21, 2008, before being mailed to Plaintiffs, as
6
evidenced by the postmark on the envelope. Plaintiffs have attached the envelope
Georgia’s Civil Practice Act and The Federal Rules of Civil Procedure are
almost identical. Fed. R. Civ. P. Rule 59(b), (d), and (e) provides only 10 days
within entry of judgment, whether by Motion or the Court’s own initiative, may a
Holding the Order for exactly ten days guaranteed that Plaintiffs would not
be allowed to file Motion For New Hearing or Motion For Reconsideration. 7 For
this reason, and due to denying Plaintiffs the opportunity to be heard, before
Dismissing the case, the Order should be considered “Void On It’s Face”.
refused to rule on Plaintiffs’ Motions; 8 the motions that have been ruled on were
“Exhibit A” attached hereto, shows Judge Becker refused to send the Orders to
Plaintiffs until such time as would be too late for Plaintiffs to timely respond.
O.C.G.A. §15-6-21
(b) “In all counties … it shall be the duty of the judge of the
superior, …within in 90 days…motions of any nature.”
(c) “When her or she has so decided, it shall be the duty of
7
Georgia, like Federal Court, only allows ten days to file Motion For
Reconsideration after an Order is filed.
8
The only Motion of Plaintiffs that was ruled on “Motion to Recuse” was denied.
7
the judge… to notify…”
(d) “If any judge fails or refuses, …to obey the provisions of
subsections (a) through (c)…, or if any judge repeatedly or
persistently fails or refuses to decide the various motions,…
such conduct shall be grounds for impeachment and the
penalty therefore shall be removal from office.”
Motion For Continuance filed 03/28/2008; without ruling on any of these Motions,
their second Motion to Compel filed 04/15/2008, with no hearing scheduled and
denying Plaintiffs their Rights of due process, ruled on both Motions in the same
the decision
9
Plaintiffs mailed the Motion U.S.P.S. Priority, Certified Mail, the Court received
the Motion on March 8, 2008 but held without filing until March 12th and didn’t
mail back Plaintiffs’ copy although there was postage pre-paid, self-addressed
envelope to do so; no explanation was given.
10
Attorney Watt and Judge Becker’s Law Clerk and Calendar Clerk, with Judge
Becker’s permission, attempted to have a “phone hearing” which was arranged on
March 31, 2008 without Plaintiffs’ knowledge and set for April 1, 2008 at 9:30
a.m. Attorney Watt left Plaintiffs a voice message sometime after 6:00 p.m. on
March 31st about the hearing, Plaintiffs did not receive the message until past noon
April 1st.
8
with the Order attached for Judge Becker to sign was filed June 5, 2008, there was
not a hearing before she signed the Dismissal on June 11, 2008, mailed to Plaintiffs
Saturday, June 21, 2008. Plaintiffs were denied their Right to respond to the
Motion to Dismiss as well as other Motions and there was no hearing beforehand.
authority”.
these acts are beyond Judge Becker’s jurisdiction and/or discretion, clearly violated
Plaintiffs’ constitutional violations claims and the Court itself violated Plaintiffs’
Rights. The Order was held ten days, and there were no hearings before Order
Compelling Discovery and/or Dismissal. “It is well established that judges may be
enjoined from interfering with citizens rights.” Bramlett v. Peterson (1967) 386
U.S. 547.
MOVE this Honorable Court for a Stay of Superior Court’s Order to preserve the
9
“status quo” and prevent further violations of Plaintiffs’ Rights under the 4th, 5th,
Plaintiffs showed Superior Court that Defendants had knowingly and with
perjured themselves, created a fictional Discovery dispute in order to have the case
attached the 1941 easement document. When Plaintiffs challenged the document,
they refused to meet the challenge or address the fraudulent document, filed
10
Motion for Continuance claiming to need more time to investigate.11 GA Power’s
entitled to and requested Judgment in their favor. Superior Court’s Dismissed the
*******It must be noted that GA Power’s First Amended Answers never amended
their Verified answers in which they insisted to have a legal easement document
and easement rights. Their Amendment only was to add Motion for Reformation
and what they wanted the new document to say; all of their sworn to answers
remained the same. GA Power never had easement rights, thereby making all of
statement. Georgia Law mandates that the act of reformation would be illegal for
Plaintiffs have met and talked with Ms. Wright, curator for the Stone
11
Plaintiffs showed to Superior Court that GA Power had continually used that
same document, providing it to Plaintiffs numerous times over the past three years,
Plaintiffs had continually told GA Power the document did not pertain to their
property.
11
Mountain Historic Society, housed within the “Wells-Brown” House on Ridge
Avenue in Stone Mountain. According to the “Wells Family Tree”, there was never
a “R. F. Wells”. The only Dr. Wells was “James A. Wells” who died 1933. His
father George Riley Wells, buried in Confederate Cemetery, Stone Mountain City,
died Jan. 5, 1919. “Exhibit C”. George Riley Wells was the one who had owned
Superior Court’s Dismissal With Prejudice, and allowing the Counterclaim against
them to continue, Plaintiffs Move this Honorable Court For a Stay of Enforcement
12
The document GA Power seeks to have a “Reformation” on does not specify the
amount of property, GA Power has told Plaintiffs in the past that they have a Right
to any and all of Plaintiffs’ property. As it is, they have illegally taken roughly 55’
x 100’ without compensation. Further Georgia Law prohibits a “Reformation” of
the document and the Federal Constitution prohibits taking of land without just
compensation (5th Amendment) and seizure without due process of law (5th and 14th
Amendments).
13
Defendants’ MTD pg. 2: “…ask this Court to intervene in a pending action….”;
“…since (per the complaint) they lost in state court...asking this Court to
entertain an appeal…” NOTE: When this case was filed, there had been no final
Order; Plaintiffs’ complaint never stated “lost in state court”; have asked no rulings
be overturned; or asked this Court for an appeal.
12
criteria are met, see Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th
Cir. 2003):
“(1) the party in federal court is the same as the party in state
court;
(2) the prior state court ruling was a final or conclusive
judgment on the merits;
(3) the party seeking relief in federal court had a reasonable
opportunity to raise its federal claims in the state court
proceeding;
(4) the issue before the federal court was either adjudicated by
the state court or was inextricably intertwined with the state
court’s judgment.”
The parties are not the same, there was no adjudication within the State
Court as to the merits of Plaintiffs complaint, Plaintiffs were deprived of the right
to be heard, when filing of the case at bar there had been no final order, and
Plaintiffs brought the denial of their Federally protected Civil and Constitutional
Rights before the Superior Court which was ignored, therefore seek redress within
this Court.
Much like the claim made by Trust in Weis Builders, Inc. v. Kay S. Brown
Living Trust, 263 F. Supp. 2d 1197, 1202, 1204 (D. Colo. 2002) which appealed
that the Rooker-Feldman doctrine did not apply so as to deprive the district court
of subject matter jurisdiction, and that dismissal should be denied, The appellate
13
“…Rooker-Feldman does not apply because these state court
orders are separable from and collateral to the federal
complaint, and the federal court is not being asked to sit in
appellate review of either state court ruling. Weis, 236 F.
Supp. 2d at 1200-02.”
“There are however, significant limitations on the scope of the
doctrine. ‘If the purpose of federal action is separable from
and collateral to a state court judgment, then the claim is not
‘inextricably intertwined’ merely because the action
necessitates some consideration of the merits of the state court
judgment.” Kiowa, 150 F.3d at 1170 (quotation omitted). We
have cautioned that “Supreme Court jurisprudence …
compel[s] a narrow reading of the ‘inextricably intertwined’
test.” Id at 1169.”
“The court in the TBL Action did not order …until after Weis
had filed his complaint in federal court. See Weis, 236 F.
Supp. 2d at 1200 (noting that Weis could not be seeking
review of the order…the federal action was filed before the
state court ruled).”
“…the state court did not actually decide the issue
presented…”
was to be wholly irrelevant. The very purpose of §1983 was to interpose the
federal courts between the States and the people, as guardian of the people’s
federal rights (quoting Mitchum v. Foster, 407 U.S. 225, 407 U.S. 242 (1972)” see
Justice Brennan dissenting, Pennzoil v. Texaco, Inc. 481 U.S. 1 (1987), page 481
at 19.
14
The issue in Superior Court between Plaintiffs and GA Power concerned an
The Defendants have failed to show even mild “state interest”. They
reference “regulation of utilities”, and “real property”, but GA Power has been
granted the right of condemnation, the real property is private property belonging
to Plaintiffs and the property was taken by fraudulent means and without just
poles, Georgia Public Service Commission regulates for attachments to the poles
and the prices GA Power charges for other companies’ attachments to the poles
only.
Should there have been a great interest in the judicial proceedings, Plaintiffs
did file in Superior Court and to Judge Becker a “Statement For The Record”
pointing out many violations of Plaintiffs’ State and Federal Constitutional Rights,
14
See MTD pg. 4, 5,
15
Neither Younger nor any of its progeny controls this case, Plaintiffs do not
proceedings in aid of the criminal law, proceedings initiated by the state in its
Rather Plaintiffs invoke the federal district court’s jurisdiction under §1983 ti
restrain the state judiciary from conducting private tort litigation in a way that
threaten to violate their constitutional rights. Miofsky v. Superior Court, et., al.,
“Unless “vital state interests” are at stake, federal district courts are not
proscribed from interfering with ongoing state civil proceedings when necessary to
vindicate federally protected civil rights.” Middlesex, 102 S.Ct. at 2521. These
Defendants have no interest at all the Superior Court action; unless GA Power has
16
Co., 357 U.S. 77 (1958); Zwickler v. Koota, 389 U.S. 241,
249–251 (1967). See Babbitt v. United Farm Workers Nat.
Union, 442 U.S. 289, 306 (1979) (quoting Harman v.
Forssenius, 380 U.S. 528, 534–535 (1965)).”15
As was the case in Miofsky v. Superior Court of California, 703 F.2d 332,
(9th Cir. 1983), Plaintiffs seek the enforcement of that which The United States
Constitution guarantees them and that which GA Power, Superior Court Judge
Becker along with her Law Clerk and Calendar Clerk, acting under color of state
There are no grounds for exempting from the broad reach of §1983 actions
taken by persons acting under color of state law in judicial proceedings, whether
15
http://www.law.cornell.edu/anncon/html/art3frag56_user.html#fnb1162
17
As the Court said in Mitchum, "[t]he very purpose of Sec.
1983 was to interpose the federal courts between the States
and the people, as guardians of the people's federal rights--to
protect the people from unconstitutional action under color of
state law, 'whether that action be executive, legislative, or
judicial.' " 407 U.S. at 242, 92 S.Ct. at 2162 (quoting Ex parte
Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879) (emphasis
added)).”
“In light of Mitchum, we conclude that district courts have
subject matter jurisdiction over suits brought under Sec. 1983
even when the state action allegedly violating plaintiff's
federally protected rights takes the form of state court
proceedings. 3 Accordingly, we hold that the district court
erred in dismissing Miofsky's claim …”
C. JUDICIAL IMMUNITY
The Judicial Immunity Doctrine does not reach suits for purely equitable
relief. Bramlett v. Patterson, 307 F.Supp. 1131 (D.C. Fla. 1969). Judicial
Immunity also would not prevent from petitioning for the appropriate direct or
public record. Jacobson v. Schaefer, 441 F.2d 127 (Seventh Cir. 1971).
Judges in every state shall be bound” by the Federal Constitution, laws, and
treaties.
18
or deprived may have an action for the recovery of damages,
occasioned by such injury or deprivation, against any one or
more of the conspirators.” (Civil law)
Yale Law Journal, page 328: "On three occasions during the
debates, legislators explicitly stated that judge would be liable
under the act. (Congressional Globe, 42nd Congress, 1st
Session 385, (1871) No one denied the statements." Bauers v.
Heisel, 361 F.2d 581, (3rd Cir. 1966). (Civil Rights)
19
“Judges are not immune from criminal sanctions under the
Civil Rights Act.” ex parte Virginia (1879), 100 U.S. 339.
See also Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971):
“On the other hand…has held that the doctrine would not
apply to the commission of a ‘clearly illegal act on the part of
the Judge. Luttrell v. Douglas, 220 F. Supp. 278 (1963).
Plaintiffs have asked for no monetary damages, only for declaratory and
20
It is well established law that a judge may not act in any case in which
21
the infringement of a constitutional right as injunctive relief
might be in another.”
Plaintiffs claims against Judge Becker and/or Superior Court are not
intended to be construed as within GTCA, Plaintiffs have not asked for monetary
damages, and violating Federally protected Constitutional Rights is not within the
The Court in Yates v. Village of Hoffman Estates, 209 F.Supp. 757 (N.D. Ill
1962) held that “not every action by a judge is in exercise of his judicial
function…” “When a judge exceeds his jurisdiction and grants or denies that
action.”
Yates v. Village of Hoffman Estates., 209 F. Supp. 757 (N.D. Ill. 1962):
22
414 U.S. 503: “Nor is it true that, unless the injunction sought
is available, federal law will exercise no deterrent effect in
these circumstances. Judges who would willfully discriminate
on the ground of race or otherwise 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. 91, 325 U. S. 101-106 (1945); United States
v. Classic, 313 U. S. 299 (1941). Cf. Monroe v. Pape, 365 U.
S. 167, 365 U. S. 187 (1961). That section provides:
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any inhabitant of any
State . . . to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of
the United States, or to different punishments, pains, or
penalties, on account of such inhabitant being an alien, or by
reason of his color, or race, than are prescribed for the
punishment of citizens, shall be fined . . . or imprisoned. . . ."
23
CONCLUSION & PRAYER
Plaintiffs have shown this Court that their Federally protected Constitutional
Rights violations have been submitted before the Superior Court. The Superior
the immunities fail as a reason for Dismissal, and Plaintiffs have shown why the
Plaintiffs Pray this Court will review their brief and thereby find that
By: ______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard RD
Stone Mountain, GA 30083
(770) 879-8737
By: ______________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-8737
24
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
Atlanta Division
JAMES B. STEGEMAN,
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO: 1:08-CV-1971-WSD
vs.
I Certify that I have this 30th day of June, 2008, served a true and correct
copy of the foregoing PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANTS
SUPERIOR COURT AND JUDGE BECKER’S PRE-ANSWER MOTION TO
DISMISS upon Defendants, through their attorney on file if known, by causing to
be deposited with U.S.P.S., First Class Mail, proper postage affixed thereto
addressed as follows:
Devon Orland Terry Hodges, Registered Agent
State of Georgia Dept. of Law Georgia Power Company
40 Capitol Square, S.W. 241 Ralph McGill Blvd
Atlanta, GA 30334-1300 Atlanta, GA 30308
__________________________
JAMES B. STEGEMAN, Pro Se
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083
25