Plaintiff's Counter-Motion to Proceed to Trial vs. MSSC
February 16, 1996
~~~~~~~~~~..........~~~~~~~~~~
Reply to Defendant's Motions
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
Filed at 9:00 a.m.
February 21, 1996
MARTIN LINDSTEDT, )
Plaintiff, )
)
v. ) No. 95-5070-CV-SW-1
)
MISSOURI SOUTHERN )
STATE COLLEGE, et al., )
Defendants. )
PLAINTIFF'S RESPONSE TO DEFENDANT'S ( MISSOURI SOUTHERN STATE
COLLEGE, EVERETT L. HOWARD, ANDREW LOVE AND DOUGLAS CARNAHAN )
MOTIONS TO DISMISS
Comes now the Plaintiff, Martin Lindstedt, to answer the abovementioned
Defendant's replies and motions to dismiss and to move the Court to let
this case proceed to trial.
1. Defendants ask for this case to be dismissed under Statute of
Limitations grounds as set forth in RSMO Section 516.130.
RSMo Section 516.130 states which actions can be prosecuted within
three years of the cause for complaint. Plaintiff filed a complaint on
November 2, 1995, within two years of when Defendants set forth in
motion Plaintiff's cause of action.
Secondly, the criminal complaint underlying this action may be
kidnapping, a felony with a Statute of Limitations greater than three
years, and as accessories to this felony, the above Defendants can be
sued civilly for a far greater period of time than three years.
2. Defendants ask for Count 1 of Plaintiff's complaint to be dismissed
because it fails to state a cause of action and because it fails to set
out all the necessary elements of false imprisonment.
This is, of course, absurd. The civil complaint form used by this
Court has four lines and instructions to be brief. It also tells the
complainant to not give any legal arguments or to cite cases or statutes.
So for the Defendant's lawyer to ask this Court to dismiss Plaintiff's
case because Plaintiff followed instructions is ridiculous.
Plaintiff's cause of action against the above-mentioned Defendants is
really quite simple: Plaintiff publicly criticized their public speaker
on November 2, 1993, and for revenge Defendants Love and Howard called
the Joplin City Police, detained Plaintiff, and endeavored to get
Defendant falsely arrested. Defendant Carnahan, in addition to aiding
and abetting by defending the actions of Defendants Love and Howard,
further violated Plaintiff's civil rights by canceling Plaintiff's
arrangements to form a political discussion group on campus in order to
punish Plaintiff. Missouri Southern State College knew about this matter,
let it continue, and refuses to discipline its employees. Therefore,
Plaintiff has a cause of action under Title 42, Section 1983 against all
of the aforementioned Defendants.
When this matter comes to trial, then will be the time for Plaintiff
to set out all the necessary elements for false imprisonment, or,
alternatively for kidnapping. There has not been time or discovery
enough to enable Plaintiff to fully develop this case.
3. Defendant's third reason for dismissal asserts that Plaintiff
fails to state a cause of action upon which relief can be granted and
that the doctrine of "respondeat superior" does not apply in this matter.
Plaintiff did indeed state a cause of action and a basis for relief.
Since Missouri Southern State College is a government corporation,
Plaintiff has no other way to make this particular Defendant make
restitution or keep from committing this infraction again other than by
punishing this Defendant in the only way that it understands: by taking
away this Defendant's money, a lot of it, so that this Defendant will
behave itself in the future. This corporate Defendant has no butt to
kick, no neck to hang it by. This Defendant exists only for the pursuit
of money and power. This Defendant, all protestations to the contrary,
obviously has no respect for an individual human being's civil or
Constitutional rights. So bleeding away $1.3 million of this Defendant's
green ichor will both punish this Defendant and immensely relieve this
Plaintiff.
The other Defendants should be punished financially for wrongdoing as
well.
Defendants' lawyer further claims that there is no liability for
respondeat superior, "let the master pay." Plaintiff will answer this
briefly.
Defendant Missouri Southern State College is indeed the master of
Defendants Carnahan, Love and Howard. These Defendants committed their
colorable misconduct while employed by Defendant College and with
College's approval and under College authority. Furthermore, these
Defendants are still employed by Defendant College, their lawyer and
legal fees are being paid by their master, Defendant College. Defendant
College cannot in one breath claim that it is not liable under
respondeat superior, that it is not the master, while at the same time
defending its servants who have carried out its will at Colleges' own
and taxpayers' expense. For Defendant College to claim that it is not
liable for its servants' misconduct, it must first cut them loose and
let their former servants justify their wrongdoing towards Plaintiff at
their own expense.
Plaintiff has a letter from Defendant Dean Douglas Carnahan acting in
name of Defendant College overtly punishing Plaintiff for exercising
Plaintiff's civil rights. This letter was issued when Defendant Carnahan
and Defendant College were secure in their assumptions that they would
never have to pay for their misconduct while hiding under color of law.
The prompt dismissal of this case before discovery could result in other
letters and memorandum that show collusive activity between Defendant
College and other Defendants in this matter. So the time for a motion to
dismiss is most certainly not yet, although there is enough evidence now
to nurture Plaintiff's case to fruition.
A copy of Defendant Carnahan's letter to Plaintiff is enclosed.
4. Defendants' lawyer reiterates using different verbiage Points Two
and Three how Plaintiff has not "set out all of the elements necessary
to make a claim for the Plaintiff under 28 U.S.C 1983." Plaintiff's
answer is the same as before. The Civil Complaint form, Section III has,
like in Section I, four lines to write upon and a request to "State
briefly exactly what you want the Court to do for you."
Plaintiff wants to bring a civil lawsuit against the Defendants and
when they are found guilty, Plaintiff wants them punished.
Perhaps this elemental concept of justice is too simple for a lawyer
to understand.
5. Defendants' lawyer wants a dismissal of the case because Plaintiff
"has not exhausted his administrative remedies."
Plaintiff did indeed try, as best he could, to avail himself of
justice within the administrative organs of the institution which had
wronged him. But the administration was only interested in punishing
Plaintiff further, then covering it up.
When Plaintiff found out in a letter from Defendant Carnahan (enclosed)
that he was being punished in addition to the kidnapping endured as a
result of Defendant Love and Howard's activity, Plaintiff made an
appointment with Defendant Dean Carnahan. For approximately an hour,
Plaintiff told his side of the story to Carnahan, which was similar to
Defendant Howard's Incident Report (enclosed). When Plaintiff asked if
he was free to continue with attempting to form a Libertarian Party
Chapter on campus, Defendant Carnahan informed Plaintiff, "I am still
mad at you," and "You can apply next semester."
Plaintiff then went over to the College newspaper, The Chart with a
pre-written letter to the editor concerning Plaintiff's false arrest on
Nov. 2, and Defendant Carnahan's decision. This letter was published on
November 19th with the title, "Libertarian recruitment postponed by
dean." The whole College knew about this matter.
Plaintiff also tried to make an appointment with College President
Julio Leon twice and College Vice-President John Tiede once, with no
success. Plaintiff considered making a complaint before the Student
Senate of the College until Plaintiff found out that Defendant Carnahan
was the Student Senate Advisor. Plaintiff then gave up on asking
Defendant College to police itself.
Having Defendant College handle this matter administratively is an
open conflict of interest. Plaintiff is not a student at the College,
and should not be expected to navigate around Defendant College's
administrative hurdles. Defendant College's local board of administration
is not judicially superior to a United States District Court. Nor does
any administrative College board have authority to bring to trial
College workers in the face of an outside Plaintiff's complaint.
Summary: Plaintiff is suing the Defendants under a Title 42, Section
1983 action because Defendants violated Plaintiff's civil rights under
color of law. Defendants had plenty of time to make it right, but
refused to do so. This is not a frivolous complaint and Plaintiff has
made a good-faith effort to obey all the rules concerning filing this
matter. The Defendants are guilty as hell and should not be allowed to
sneak away under a legal smoke-screen or color of law. The aforementioned
Defendants should either stand trial or come to some negotiated
settlement with the Plaintiff.
Respectfully submitted,
-s- Martin Lindstedt 2/16/96
___________________________
Martin Lindstedt, Plaintiff Pro Se
Certificate of Service
A copy of the foregoing was mailed February 17, 1996 to: Attorney Ron
Mitchell for the Defendants: Missouri Southern State College, Everett L.
Howard, Andrew Love, and Douglas Carnahan; at 320 West Fourth Street,
P.O. Box 1626, Joplin Missouri 64802; and one copy to Attorney Joy R.
Urbom, for Defendants City of Joplin, Arias, Myers, Denis, and two
John Doe police officers, at 200 N. Broadway, 12th Floor, St. Louis,
Missouri 63102.
-s- Martin Lindstedt
Reply to Defendant's Suggestions
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
File Stamped 9:00 a.m.
Feb. 21, 1996
MARTIN LINDSTEDT, )
Plaintiff, )
)
v. ) No. 95-5070-CV-SW-1
)
MISSOURI SOUTHERN )
STATE COLLEGE, et al., )
Defendants. )
PLAINTIFF'S RESPONSE TO DEFENDANT'S ( MISSOURI SOUTHERN STATE COLLEGE,
EVERETT L. HOWARD, ANDREW LOVE AND DOUGLAS CARNAHAN ) SUGGESTIONS
CONCERNING MOTIONS TO DISMISS
In Reply to Defendants' suggestions supporting their motions to
dismiss, Plaintiff responds as follows:
Statute of Limitations. Defendants ask for this case to be dismissed
under Statute of Limitations grounds as set forth in RSMO Section
516.130. Contrary to Defendants' claims, RSMo Section 516.130 states
which actions can be prosecuted within three years of the cause for
complaint.
Defendant's claim is moot because Plaintiff filed a complaint on at
4:15 p.m. November 2, 1995, within two years of when Defendants set
forth in motion Plaintiff's cause of action at 10:00 p.m. November 2,
1993.
Secondly, the criminal complaint underlying this action may be
kidnapping, a felony with a Statute of Limitations greater than three
years, and as accessories to this felony, the above Defendants can be
sued civilly for a far greater period of time than three years.
Respondeat Superior. The case mentioned by Defendants' Attorney,
Gay Lib vs. University of Missouri, 558 F. 2d 848 as not recognizing
the theory of respondeat superior is absurd. The University of Missouri
at Columbia ended up getting sued along with the other defendants and
losing at the U.S. Eighth Circuit of Appeals!
Any reading of Gay Lib vs. University of Missouri reflects the
determination of the Eighth Circuit to defend the First Amendment of
the United States Constitution. This case does not favor the
Defendants, especially when Defendant Carnahan and Defendant Missouri
Southern State College refused to allow a Libertarian Party Chapter to
form on campus as a means to punish Plaintiff for exercising his First
Amendment rights!
Plaintiff recognizes that the theory of respondeat superior, if
allowed to be carried too far, would be unjust. Taxpayers should not be
placed at risk because of a rogue government worker. However, Defendants
Howard and Love were extremely reckless and negligent in their efforts
to violate Plaintiff's First Amendment rights. In an attempt to cover
the College's and other Defendants' liability, Defendant Carnahan used
the full force and power of his office as Dean of Students to further
violate Plaintiff's civil rights. Defendant College was fully aware of
their employees' actions, but refused to do anything about it.
Furthermore, Defendant College is using taxpayers' money and the
College's prestige to shelter their rogue employees and defend them
from Plaintiff's lawsuit. If Defendant College wishes to be beyond the
fray, and not be sued as a participant, then College should let the
other Defendants fully answer for their misconduct, instead of
protecting them.
Sovereign Immunity and limited Respondeat Superior should not be used
as a bastion of tyranny behind which government workers can sortie out
and plunder an average citizen's rights and into which those government
workers can retreat from retaliation. In short, limited Respondeat
Superior is not the Mexican border!
Exhausting Administrative Remedies. Defendant's attorney mentions
the case of Romans vs. Crenshaw, 354 F. Supp. 868. as justifying
dismissal of suit because Plaintiff allegedly did not exhaust
administrative remedies available.
Again, this is an unfortunate case for Defendant to mention as the
defendant Crenshaw mentioned in this case lost. The school mentioned
was a high school, not a college.
Contrary to what Defendants' lawyer states, in Romans vs. Crenshaw,
plaintiff did not seek any relief through administrative means, yet the
plaintiff was not foreclosed from suing the defendant. When the case
was deferred for thirty days back for administrative remedies,
defendants could not support their conduct, so the case was brought
right back to the district court level and the defendants lost the case.
Plaintiff did indeed try to seek some form of administrative remedy
from Defendant College, however, the administrative people involved in
the matter either ignored Plaintiff or actively violated Plaintiff's
rights.
Plaintiff was not a student of Defendant College at the time this
civil rights violation took place. Therefore, Plaintiff is not bound by
a Student Handbook or Student Policy.
Furthermore, a U.S. District Court has jurisdiction in this matter
superior to the Defendant Colleges' administrative "courts," Defendant
College has an interest in the matter, and it is unlikely that
Defendant College can grant Plaintiff relief. Is this Court going to
send this matter back to the Defendant College for thirty days for
administrative hearing as was done in Romans vs. Crenshaw and then take
this matter back if there is no settlement?
Wherefore, Plaintiff asks this Court to deny Defendants' motions to
dismiss as they are based upon ridiculous and inappropriate Suggestions
in favor of dismissal.
-s- 2/16/96
_________________________________
Martin Lindstedt, Plaintiff, Pro Se
Rt. 2 Box 2008
Granby, Missouri 64844
(417) 472-6901
Certificate of Service
A copy of the foregoing was mailed February 17, 1996 to: Attorney
Ron Mitchell for the Defendants: Missouri Southern State College,
Everett L. Howard, Andrew Love, and Douglas Carnahan; at 320 West
Fourth Street, P.O. Box 1626, Joplin Missouri 64802; and one copy to
Attorney Joy R. Urbom, for Defendants City of Joplin, Arias, Myers,
Denis, and two John Doe police officers, at 200 N. Broadway, 12th
Floor, St. Louis, Missouri 63102.
-s- Martin Lindstedt
_____________________________________
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