|Virginia Emerson Hopkins|
We've written extensively about our interactions with ND AL federal judges William M. Acker Jr. (a Reagan appointee), Abdul Kallon (Obama), and R. David Proctor (Bush II). We've shown that these three amigos are, as my mother used to say when I was a wee sprout, "crooked as a dog's hind leg."
(Note: My mother grew up in Osage, Arkansas, not far from where several episodes of The Beverly Hillbillies were filmed back in the day. It's also not far from Harrison, Arkansas, which once was home to Dogpatch USA, a now-abandoned theme park based on the characters of Al Capp's Li'l Abner. My mother grew up in what might charitably be called a "shack," with no running water or electricity, but she came from learned stock. The union of her mother and father produced a nurse, a social worker, an engineer, and a school teacher/principal. It's nice to know that I come from a line of pretty smart folks, but I can't deny there's a heavy dose of hillbilly blood coursing through these veins. All of this is to say my mother came by her corny sayings honestly, and so does her oldest son.)
Now, along comes U.S. District Judge Virginia Emerson Hopkins to show that she might be just as crooked as all the rest. Hopkins entered the scene when Proctor acknowledged that he had a conflict of interest requiring recusal in our "House Case," and the matter wound up in Hopkins' lap. In true ND AL fashion, Proctor made the laughable claim that his conflict had arisen only after he had dismissed our case. The case is on appeal to the Eleventh Circuit, but for now, Proctor's unlawful rulings stand -- even though publicly available information shows his conflicts date back way before our complaint was filed. In other words, he was disqualified from the outset but failed to abide by his duty to recuse when his impartiality might "reasonably be questioned." Like I said, these folks are crooked -- and they don't try real hard to hide it.
We have evidence, already, that Hopkins fits the mold. Since Proctor's exit, our Rule 59 Motion to Alter or Amend Judgment fell to Hopkins. She issued an order, denying the motion, that suggests she never even glanced at the case file -- and maybe did not read the motion. (Our Rule 59 motion, and Hopkins ruling on it, are embedded at the end of this post.)
How nutty was Hopkins' ruling? Let's take a look:
(1) Manifest errors of law? Gee, I don't see any.
Hopkins acknowledges that manifest errors of fact or law are grounds for reversal via a Rule 59 motion. We present 11 or 12 (depending on how you count) manifest errors of fact or law that Proctor made in his 45-page memorandum opinion dismissing our case. But Hopkins can't see one of them. Here is what she writes:
Importantly, Plaintiffs’ disagreement with the court’s reasons for dismissing their case does not, in any manner, demonstrate that the 45-page memorandum opinion thoroughly supporting the with-prejudice dismissal contained manifest errors of law or fact.
Oh, really? Let's see if we can help the scales fall from Judge Hopkins eyes.
(2) A "heightened pleading standard" no longer exists in the Eleventh Circuit
Proctor dismissed a number of our claims based on the "heightened pleading standard" of a U.S. Supreme Court (SCOTUS) case styled Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007). But that presents a slight problem: The Eleventh Circuit, in at least two cases, has flatly rejected the Twombly standard and even SCOTUS, in at least one case, has rejected it. From our Rule 59 motion:
Proctor uses the wrong standard of review throughout. The U.S. 11th Circuit, which provides binding law for this case, has held no heightened pleading standard, of the sort raised in Twombly and Iqbal, exists in the circuit (covering Alabama, Georgia, and Florida.) The 11th Circuit held in Randall v. Scott, 610 F.3d 701, 710 (11th Cir., 2010) as follows: "We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. The 11th Circuit reaffirmed Randall in Saunders v. Duke, 766 F. 3d 1262 (11th Cir., 2014).
Here is the key point: The 11th Circuit found in Randall that most pleading standards are governed, as they have been for decades, by Federal Rules of Civil Procedure (FRCP) 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."
Even SCOTUS is moving away from heightened pleading standards. Our Rule 59 motion cites its most recent finding on the matter:
Like the Eleventh Circuit, the U.S. Supreme Court is moving away from the language of Twombly and Iqbal. In Johnson v. City of Shelby, 135 S. Ct. 346 (2014), the nation's highest court held: "We summarily reverse. Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.
Our complaint easily clears "the short and plain statement" hurdle, and neither Proctor, nor Hopkins, nor any defendant even attempts to argue that isn't the correct pleading standard. Proctor, through all 45 pages of his opinion, ignores the proper pleading standard -- but Hopkins can find no manifest errors of law or fact? The woman either is blind, preposterously lazy, or both.
(3) Virginia Emerson Hopkins: A Portrait of Judicial Laziness
Hopkins makes no effort to address any of our substantive arguments. She does, however, try to deny us the right to file an amended complaint -- and she can't get that right.
An amended complaint would not be necessary in our case if we could find a district judge who knew how to follow Eleventh Circuit precedent. That seems impossible, but it can't be seriously argued that we are entitled to amend our complaint.
Hopkins tries it anyway, citing a case styled Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, (11th Cir. 2010) for its proposition that "Post-judgment, the plaintiff may seek leave to amend if he is granted relief under Rule 59(e) or Rule 60(b)(6)." In other words, Hopkins claims, Proctor denied our Rule 59 motion, so we can't seek leave to amend our complaint.
(Interestingly, I can find no Eleventh Circuit case where Jacobs is cited. Also District Judge Kenneth Ryskamp, sitting by designation in Jacobs, issued a blistering dissent that charges his colleagues with gross misapplication of the law. We plan to make the Ryskamp dissent the subject of a future Legal Schnauzer post.)
Hopkins ignores an inconvenient truth: We are pro se litigants, and the law allows us at least one opportunity to amend our complaint. From the Rule 59 motion:
Here is a key holding on this issue in the Eleventh Circuit: A pro se plaintiff, however, "must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice," at least where a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir., 1991).
Another key holding from the Eleventh Circuit: "As to the second exception, where the issue of futility is close, we err on the side of generosity to the plaintiff." O'Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197 (11th Cir. 2003)."
Did Proctor and Hopkins have an obligation, under the law, to allow amendment of our complaint (even though it should not have been needed)? Yes. Is this a case of judges cheating everyday parties who are challenging powerful corporate, political, and institutional entities? Absolutely. Does this happen often in the Eleventh Circuit? It sure as heck does.
In fact, we have more evidence of Hopkins' cheat job, and that will be unmasked shortly.
(To be continued)
Something tells me that federal judges in Alabama are based on political connections and not on qualifications.
Bingo! You nailed it. I've got a post coming soon on that subject.
When a judge recuses, who determines where the case goes next?
I'm not sure. The rules probably say that the clerk is supposed to make a random selection. In reality, the judges probably decide, based on who is willing to bend the law to produce the desired result. In this case, it went from one Bush II appointee (Proctor) to another (Hopkins). I don't think that's a coincidence.
I'm not sure about the law and facts on your two cases, but I believe you have a strong track record of figuring this stuff out. You publish enough opinions and citations to prove, to me, that you do your homework and probably know what you're talking about.
That said, it appears that neither of these cases should have gone to the appellate court. Even a citizen who knows nothing about you, or cares what happens to you, should be ticked off because it's a waste of our taxpayer dollars. If cases should be decided in trial courts, but go to 11th Circuit based on whims of corrupt judges, we all are losers.
Exactly. That's why these cases -- whether they involve me or someone totally unrelated to me -- matter to everyone. Those courthouses are ours; we pay for them, and we should be outraged when judges use them in an abusive and unlawful fashion.
Proctor and Hopkins both bought those court seats. Qualifications had nothing to do with it.
Based on political connections to whom?
A commenter raised this issue, and I hope he/she responds. Here is my answer: Are the names Jeff Sessions and Richard Shelby familiar to you?
Jacobs has been cited in at least 27 Eleventh Circuit cases....
I was using Google Scholar, and you might have a more comprehensive source, such as Westlaw. Also, not sure we're looking at same thing. I was looking at citations by 11th Cir. Court of Appeals itself. Perhaps you found citations throughout the circuit. I just did a followup search and found at least four additional citations from the appeals court itself, so that lifts my number to five, still way short of the number you found.
I'm going to remove the reference from the post because it isn't correct -- the correct number, it appears, is between 5 and 27, depending on what you are looking at. It's also possible Google Scholar, while a very useful tool, is not reliable for that sort of research.
Mainly, Jacobs does not involve pro se litigants so it's not an issue in our case -- and Hopkins got it wrong, either way.
I just have this feeling the judges in Alabama don't like you. given judges appear to all belong to the same club, things aren't going to change much regardless of judge in Alabama.
From her picture I would suggest she is simply the female version of all those other judges.
A "heightened pleading standard no longer exists in the Eleventh Circuit"?? Please cite a case where that has been established. Just because the same phrases and words are used in various opinions does not mean that they are being used in the same way in each case, which is what you seem to be asserting. Opinions from the highest courts in this country are distinguished from one another by splitting the tiniest of hairs. Your overly broad statements (where even "properly" applied, using the most generous standard of review) are the legal equivalent of using an ax to remove a pimple. I get that you're writing a blog post that will be read by laymen, but your writing is completely misleading to those laymen, which is a pretty serious problem in the instant situation for obvious reasons.
The Johnson case you reference clearly states the Twombly and Iqbal cases aren't on point for that case because they concern factual allegations. Speaking of factual allegations, distinguishing those from legal conclusions is pretty important under both of those cases and your Complaint is way heavy on the legal conclusions and way light on the factual allegations....
Pro-se litigants are afforded the same right to amend their complaints post-judgment as those who are represented by attorneys. The Bank case you reference clearly states that the right to amend applies BEFORE the complaint is dismissed, which is not the case here and the cases you cite are not on point and do not apply.
These judges don't have to be "nutty" or crooked to rule against you based on your pleadings.
This is the old "you have to be 'brilliant" like a lawyer to understand the law" trick. I've seen it many times. Re: your points/questions:
(1) I did cite such a case, Randall v. Scott. From that case: "We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no “heightened pleading standard” as it relates to cases governed by Rule 8(a)(2), including civil rights complaints." Next question.
(2) From Johnson v. City of Shelby, again cited in the post for those who can read: "Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice 347*347 and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure "are designed to discourage battles over mere form of statement"); 5 C. Wright & A. Miller, § 1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) "indicates that a basic objective of the rules is to avoid civil cases turning on technicalities"). In particular, no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in order to state a claim."
The last three sentences reject a heightened pleading standard. Twombly and Iqbal aren't on point in Johnson because the complaint met those standards. Petitioners only had to meet the Rule 8 standards for factual allegations: "Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice 347*347 and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure "are designed to discourage battles over mere form of statement"); 5 C. Wright & A. Miller, § 1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) "indicates that a basic objective of the rules is to avoid civil cases turning on technicalities"). In particular, no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in order to state a claim."
(3) Re: Bank v. Pitt, you are flat-out lying, so you must be a lawyer. From Bank: "This is still true where the plaintiff does not seek leave until after the district court renders final judgment, see Thomas, 847 F.2d at 773 (after district court dismissed plaintiff's complaint with prejudice, plaintiff filed motion for reconsideration that was denied; this court reversed and remanded, directing that plaintiff be permitted to amend his complaint), and even where the plaintiff never seeks leave to amend in the district court, but instead appeals the district court's dismissal, see Sarter v. Mays, 491 F.2d 675, 676 (5th Cir.1974) (complaint dismissed with prejudice and plaintiff appealed; court of appeals stated that "if the complaint does not adequately apprise the defendant of the nature of the plaintiff's claim, the court should allow the plaintiff to amend the pleadings to more plainly delineate the cause of action rather than dismiss the complaint.")
No need to split hairs to see that you are wrong on every point. Congrats.
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