Don't You Know You Can't Sue No Judge!

Part 2, Nov. 28, 1997

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        IN THE UNITED STATES DISTRICT COURT FOR THE
                WESTERN DISTRICT OF MISSOURI
                    SOUTHWESTERN DIVISION
                              
MARTIN LINDSTEDT,              )
               Plaintiff,      )
                               )
v.                             )  No. 97-5064-CV-SW-1
                               )
JASPER COUNTY, et. al.,        )
               Defendants.     )

       PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER DISMISSING
                     FROM SUIT DEFENDANT SCHOEBERL
                              
   Comes now the Plaintiff, Martin Lindstedt, to make this Motion for 

Reconsideration of this Court’s ORDER of November 18, 1997 dismissing, 

apparently with prejudice, Defendant Schoeberl from this case.  This 

Motion for Reconsideration comes under the relevant sections of Rule 

59 and 60, Federal Rules of Civil Procedure.  Plaintiff requests that 

this Court overrule, or vacate its ORDER of Nov. 18, 1997.  Plaintiff 

will show, using this Court’s Order’s format, that this Order should 

be withdrawn.

   Another ORDER of Nov. 18, 1997 summarily dismissed Plaintiff’s case 

with prejudice against Defendants Blauckat and Gilbert.  While 

Plaintiff would have preferred that these summary dismissals had been 

in one ORDER to save time and postage, Plaintiff will answer each 

ORDER separately, with different responses of fact and law, like this 

Court saw fit to do.

                         Background

   This Court seems to have one of the material facts vital to its 

order of summary judgment incorrect.  Plaintiff was not in the 

courthouse when Plaintiff was detained by several officers asking 

questions about whether Plaintiff had had a problem in the 

courthouse.  Plaintiff was outside the courthouse walking to his 

car to leave Carthage when Plaintiff was detained, and falsely 

arrested.  Later, once Deputy Gilbert had gotten 


Motion to Reconsider, Re. Schoeberl       1         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844



his orders from Defendant Schoeberl, Defendant was then handcuffed 

and imprisoned for twelve hours under color of Revised Statute of 

Missouri (RSMo) 67.315.

   The reason this material fact is important is that this Court 

bases its entire Order of Nov. 18, 1997 concerning Defendant Schoeberl 

on the notion that Plaintiff’s false arrest and imprisonment at 

Defendant Schoeberl’s order took place within the courthouse. See 

Page 7, ORDER of Nov. 18, 1997.  "The Court finds it is certainly 

within a judge’s discretion to direct judicial officers to uphold 

the law within his or her courthouse.  Having a person removed from

a courtroom because they are causing a disturbance, irrespective of 

whether they are a party to a specific dispute, is still a judicial 

act. . . ."

   When Plaintiff was initially detained and arrested, it was well 

outside the courthouse, much less a courtroom of that courthouse.  It 

is not Plaintiff’s fault that Plaintiff was forced out of public 

view by Defendants Gilbert, Blauckat, and other unknown Jasper County 

Deputies to a more secluded spot out of public view closer, but still 

not inside the Jasper County courthouse.

   This material fact as to where Plaintiff’s detention, false arrest, 

and handcuffing took place at the order of Defendant Schoeberl well 

outside any possible judicial jurisdiction of Defendant Schoeberl 

renders this Court’s ORDER invalid, as it relies on an invalid fact.  

Defendant Schoeberl has no jurisdiction or judicial function over the

public sidewalks outside the courthouse.


                        Discussion
                          
    
A. Dismissal of Frivolous Claims

   This Court has already held that this Court in its ORDER of August 

7, 1997 held that Plaintiff’s case was not frivolous under 28 U.S.C. 

§ 1915(d) and did not use this as a basis for summary judgment in 

the ORDER of November 18, 1997.


B. Failure to State a Claim

     On Page 3 of its Nov. 18th ORDER, this Court spends the first 

paragraph showing 


Motion to Reconsider, Re. Schoeberl       2         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844





that this Court assumes the truth of all facts alleged in the 

complaint and draws all reasonable inferences in favor of the 

complainant. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993).  Yet 

regrettably far too often this Court ignores material fact vital to 

this case, such as the location of Plaintiff outside the courthouse

when he was arrested.  Plaintiff hopes that bringing up this vital 

material fact will be sufficient for this Court to reconsider its 

ORDER.

   This Court, at the end of this paragraph, says that as a practical 

matter, a dismissal under Rule 12(b)(6) is likely to be granted only 

in the unusual case in which a plaintiff includes allegations that 

show on the face of the complaint that there is some insuperable bar 

to relief. (quoting Jackson Sawmill Co., Inc. v. United States, 580 

F2d, 306.

   In the next paragraph on page 3 of its ORDER, this Court says that 

a defendant’s absolute immunity from suit presents an insuperable bar 

to relief such that dismissal under Rule 12(b)(6) is appropriate.  

Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218 holds "this 

immunity applies even when the judge is accused of acting maliciously 

and corruptly."  Plaintiff would say that Defendant Schoeberl is a 

malicious and corrupt judge, and that absolute immunity from suit is

far more than Schoeberl deserves or should have as a matter of public 

policy.  If Defendant Schoeberl had a basis for his claim of absolute 

immunity, there would be nothing much Plaintiff could do about it.

   Rather, the Supreme Court has indicated that immunity is overcome 

in only two sets of circumstances.  First, a judge is not immune from 

liability for nonjudicial actions, i.e., actions not taken in the 

judge’s judicial capacity.  Forrester v. White, 484 U.S. 219, 227-29, 

108 S.Ct. 538, 544-45; Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 

1099, 1106.  This district court has not indicated what official

capacity Defendant Schoeberl has as a judge to order the Jasper 

County Sheriff’s Department or even his bailiff to arrest persons 

visibly intoxicated or incapacitated by alcohol under RSMo 67.315 

outside a courtroom in which judicial process is taking place or, 

even for that matter, outside a courthouse when judicial processes 

are not taking place.  Second, a judge is not immune for his actions,

though judicial in nature, taken in the complete absence of all 

jurisdiction.  Id., at 356-57, 98 S.Ct. at 1104-05; Bradley v. 

Fisher, 80 U.S. 335, 351 (1872).  So therefore,


Motion to Reconsider, Re. Schoeberl       3         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844



even if this Court can and does define as judicial in nature 

Defendant Schoeberl’s ordering the Jasper County Sheriff’s Department 

to arrest drunks under color of RSMo 67.315, Defendant Schoeberl has 

no jurisdiction to do so on the public streets and sidewalks of 

downtown Carthage,  outside a courtroom or even outside the courthouse.  

Thus on the basis of these two sets of circumstances, Defendant

Schoeberl has failed to qualify for absolute judicial immunity.

   On Page 4, this Court goes on to conclude that Defendant 

Schoeberl’s actions were taken in his judicial capacity, although it 

does admit that "Of course, a judge’s direction to police officers to 

arrest a sober individual for appearing intoxicated is not a 

‘function normally performed by a judge.’"  Stump v. Sparkman, 435 

U.S. at 362, 98 S.Ct. at 1108.  This Court should have concluded that 

a malicious act directing police officers to arrest a sober individual

is not a judicial function at all.  RSMo 67.315 has to do with police 

officers arresting drunks and throwing them in a jail cell for twelve 

hours with no mention of having a judge helping them out in this 

executive branch function.  Administrative decisions, even though they 

may be essential to the very functioning of the courts, have not been

similarly been regarded as judicial acts.  Forrester v. White, 484 

U.S. 219, 228, 108 S.Ct. 538, 544.  Whether the act done by him [a 

judge] was judicial or not is to be determined by its character, and 

not by the character of the agent. Id. at 228, 108 S.Ct. at 545 

quoting Ex parte Virginia, 100 U.S. (10 Otto) 339.  As Forrester

instructs, (at 484 U.S. 229, 108 S.Ct. at 545) it is "the nature of 

the function performed, not the identity of the actor who performed 

it, that inform[s] our immunity analysis."  Therefore, since the 

nature of the function, (the arrest of Plaintiff under RSMo 67.315, 

which was a police action) is not judicial, the identity of the actor 

who performed it (a judge who ordered a false arrest under RSMo 

67.315) is not what inform[s] an immunity analysis.  This district 

court got it totally backwards on Page 5 of its Nov. 18, 1997

ORDER in its assumption that just because one of the acting defendants 

is a judge, that the nature of the function, his actions, were 

somehow judicial in nature.

    This Court continues on Page 5 of its ORDER to "find that 

even if Schoeberl did order the deputies to arrest Lindstedt 

under Missouri Revised Statute § 67.315, such an


Motion to Reconsider, Re. Schoeberl       4         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844




act would be a judicial act."  No case law is provided for such an 

assertion by this district court.  Rather, the material facts are 

misapplied by this Court.  "In this case Lindstedt entered the 

courthouse of his own volition," (a non sequitur) "it is certainly a 

judicial act for a judge to direct courthouse deputies or officers 

to enforce the state laws against those who are in the courthouse."

Plaintiff was not in the courthouse when those state laws were used 

as color to arrest and imprison Plaintiff at the direction of 

Defendant Schoeberl.

   Throughout pages five and six this Court wanders about claiming 

that Defendant Schoeberl acted "in excess" of his jurisdiction.  

However, Plaintiff notes that Defendant Schoeberl cannot act "in 

excess of his jurisdiction" when he has no jurisdiction at all.  

Judges are not immune from lawsuits based on actions taken in the 

complete absence of all jurisdiction.  Mireles v. Waco, 502 U.S. 9, 

11, 112 S.Ct. 286, 288 (1991).  A distinction thus exists between acts

performed in excess of jurisdiction and those done in absence of 

jurisdiction.  Duty v. City of Springdale, 42 F.3d 100, 104 (8th Cir. 

1994)  However, this Court has not bothered to show, other than by 

allegation, why Defendant Schoeberl ever had any jurisdiction to 

immunize his misconduct.

   Having made a total hash of the case law involved, this Court 

proceeds to misstate the material facts in its close on Page 7 of its 

Nov. 18, 1997 ORDER involving Defendant Schoeberl:

   "The Court finds that it is certainly within the judge’s discretion 

to direct judicial officers to uphold the law within his or her 

courthouse."  Plaintiff was outside the courthouse when Defendant 

Schoeberl proceeded to abuse for his own purposes RSMo 67.315 and 

order Plaintiff arrested by the Jasper County Sheriff’s Department, 

(an executive branch police force, not judicial officers) for public

intoxication.  "Having a person removed from a courtroom because they 

are causing a disturbance, irrespective of whether they are a party 

to a specific dispute, is still a judicial act."  Plaintiff never 

entered any courtroom whatsoever, much less one in which a specific 

dispute under judicial authority was taking place.  Therefore, since 

Plaintiff never entered a courtroom in the first place, Plaintiff 

did not need to be removed from a courtroom as a judicial act.  

Motion to Reconsider, Re. Schoeberl       5         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844





Plaintiff was not even in the courthouse, much less a courtroom, when 

Plaintiff got arrested by Jasper County Deputy Sheriffs upon the order 

of Defendant Schoeberl.

   Lacking jurisdiction or judicial authority to order the arrest of 

Plaintiff under color of RSMo 67.315, it really makes no difference as 

to whether Defendant Schoeberl was an associate circuit court judge or 

full circuit court judge or Missouri Supreme Court judge or United 

States Supreme Court judge.  Plaintiff has no idea as to why this 

district court devoted a large footnote on the matter at the bottom 

of Page 6 of its Nov. 18, 1997 ORDER.  In any case, Defendant

Schoeberl was not conducting a hearing, Defendant Schoeberl was 

ordering Plaintiff’s false arrest and imprisonment.

   Also to be noted is that Defendant Schoeberl, in his Aug. 29, 1997 

affidavit paragraph three and four made no mention of Plaintiff’s 

possible intoxication or incapacity.  Yet it would seem that 

Defendant Schoeberl deliberately arranged for Plaintiff’s false 

arrest and imprisonment under color of RSMo 67.315 nevertheless.

                              
   Anyone with a lick of common sense looking at the material facts 

and evidence already presented should know what happened.  The 

circuit court clerks were annoyed because Plaintiff insisted on 

making the clerks file some papers like they were supposed to do and 

Plaintiff carried a tape recorder to record any refusal to file 

papers in violation of Missouri law.  These clerks bellyached to

Defendant Schoeberl, and Defendant Schoeberl called the Jasper County 

Sheriff’s Deputies to arrest Plaintiff.  Plaintiff was outside the 

courthouse and onto a public sidewalk when the Sheriff’s Deputies 

detained him.  While Plaintiff was so detained, having his tape 

recorder taken to prevent recording of this misconduct and other 

property stolen by Defendant Blauckat, Defendant Gilbert and 

Defendant Schoeberl were hatching ‘a reason’ to arrest Plaintiff 

for something that might wash.  RSMo 67.315 was settled upon as the 

best opportunity to imprison Plaintiff without having a charge 

being filed.  Defendants Schoeberl, Gilbert, Blauckat and the rest of 

the deputies unknown to Plaintiff knew full well that Plaintiff was 

not drunk, but a small matter such as using RSMo 67.315 as color of 

law wasn’t going to stop them from arresting, handcuffing and 

imprisoning Plaintiff for 12 hours.  Plaintiff was deprived of 

Motion to Reconsider, Re. Schoeberl       6         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844



his liberty for twelve hours and of property in the value of ten 

dollars without due process of law but under color of law by 

Defendants Schoeberl, Gilbert, Blauckat, and some unknown Jasper 

County Sheriff’s Deputies. Yet this Court has refused to interpret 

the material facts and evidence in other than a prejudicial manner 

in favor of making known defendants Schoeberl, Gilbert, Blauckat, 

and others and immune from suit under 42 U.S.C. § 1983.


   Wherefore, Plaintiff asks this Court to overrule, overturn, vacate 

or set aside its ORDER of November 18, 1997 regarding a summary motion 

to dismiss Defendant Schoeberl as a party to this case; to let this 

matter proceed to trial by jury so as to settle the facts and law 

involved in this matter, plus whatever other relief this Court finds 

just and proper.


                   Respectfully submitted,

               -s- Martin Lindstedt  11/28/97
               ______________________________
                 Martin Lindstedt, Plaintiff
                       (417) 472-6901
                              
                              
                   Certificate of Service

   Plaintiff certifies that a copy of this document was
mailed November 28 1997 to Attorney Wayne  K. Davis, c/o the
Missouri Attorney General’s Office, Box 899, Jefferson City,
Missouri 65102 as for some reason entered on behalf of
Defendant Joseph Schoeberl, Associate Circuit Judge,
Carthage, Missouri.

   Plaintiff certifies that a copy of this document was
mailed November 28, 1997 to Attorney Jeffrey L. Groves,
Daniel, Clampett, Powell & Cunningham LLC, 3171 East
Sunshine, P.O. Box 10306, Springfield, Missouri, 65808 for
Defendants Pierce, Blauckat, Gilbert, and possibly
Schoeberl, Jasper County, and Two Unknown Jasper County
Sheriff’s Deputies.

   This Court says that Defendant Schoeberl presented a
motion to have the case against him dismissed.  Plaintiff
suspects that this Court means that Attorney Davis made the
motion. But to be on the safe side, Plaintiff also mails a
copy of this motion on Nov. 28, 1997 to Defendant Joseph
Schoeberl, Jasper County Courthouse, Carthage, Missouri
64836.

-s- Martin Lindstedt

Motion to Reconsider, Re. Schoeberl       7         Martin Lindstedt
Re: Lindstedt v. Jasper County  et. al.             338 Rabbit Track Road
No. 97-5064-CV-SW-1                                 Granby, Missouri 64844

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Comment: The Federal judiciary has always been determined to let their fellow criminals at the bar go free, regardless of the plain language of 42 U.S.C. § 1983 that Congress established in the anti-Ku Klux Klan Act of 1871. The one case where the law was enforced against a state judge was in the case of Ex Parte Virginia, 100 U.S. 339, (1880) where a Virginia state judge remained in jail for his part in making sure negroes were not allowed on a jury. The Supremes then decided that Congress had passed 'enabling legislation' to enforce the 14th Amendment and it had good reason to do so. Judges who exceeded their authority, who used their power outside jurisdiction, were liable to charges for their misconduct.

However, well before 1963, federal judges used 'common law' as an excuse to dismiss civil cases against corrupt judges, even though the doctrine of a federal common law had been overturned in Erie Railroad v. Thompkins (1938). The other excuse used is "public policy" demands an independent judiciary, although for all practical purposes this doctrine of absolute judicial immunity means that these black-robed criminals are thus independent of having to obey the law, getting to submit their whims as a masquerade of law without consequence.

However, the Gubbnmint Kangaroo Korts, for reason of "public policy" can't just say that judges can commit any criminal act they want because they are above the law. That would finish the pretence that gubbnmint korts and justice are anything other than the mechanism to lend a superficial legal gloss to criminal tyranny. So the korts go through the motions and procedures of misquoting both law and fact before they let the criminal judge off the hook. Such was done by Federal Judge Dean Whipple. This Motion of mine was to try getting him to set aside his judgment or face the appeals court.

However, Whipple knows that I already have been turned down twice by the 8th Circuit Court of Appeals, once involving suing Schoeberl for other his criminal activities in having me imprisoned for contempt for 30 days over a bogus traffic misdeameanor. Whipple thinks he can get away with his bogus ruling, and thus he tried it. Whipple may very well be right.

It is not a matter of "law" anymore. It never was a matter of justice. It is a matter of power. The gubbnmint cannot set up a police state unless it has a bunch of crooked judges to legitimize its tyranny. It must protect those judges from suits from the judges' victims. Ergo, it must rule that corrupt judges are absolutely immune from lawsuit.

Of course this does not last forever. Sooner or later the regime is destroyed by the collapse of its civilization or by revolution. The very first criminals of the ancient regime held totally responsible for the corruption leading to the regime's overthrow are the former judges, who are butchered out by their former victims in the name of justice.

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