UNITED STATES COURT OF APPEAL
IN THE EIGHTH CIRCUIT
Case No. 07-3155
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,
Fr. Peter Klink,
Connie Whirlwind Horse,
PETITION FOR REHEARING EN BANC
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
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
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 8th 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
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
Procedural History in Lieu of Argument
I first filed a claim on
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
I filed motion for Recusal on
Judge Bogue granted Motion for Marshal Service of Summons, (Id #12) which included Larry Bodin. (Id #32) On
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
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 2nd 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,
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
After prolonged delays, on
I appealed the decision on
4th 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. 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
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.
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 20th day of June, 2008.
Janis Schmidt 418
 Payton v.