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U.S. Judge R. David Proctor is Trampling the Law Regarding Indigent Litigants in Federal Lawsuit Involving My Unlawful Arrest and Incarceration in Shelby Co.

Posted on the 27 October 2016 by Rogershuler @RogerShuler

U.S. Judge R. David Proctor is trampling the law regarding indigent litigants in federal lawsuit involving my unlawful arrest and incarceration in Shelby Co.

U.S. Judge R. David Proctor

The incompetence and corruption in Alabama's federal courts never ceases to amaze -- and that's a shame because our state has produced Hugo Black and Frank Johnson, two of the most courageous and impactful federal jurists in American history. In fact, the U.S. Courthouse in downtown Birmingham is named for Hugo Black, but he likely would be embarrassed, chagrined, even outraged by what passes for "justice" in that building these days.
Our little blog, in a sense, has been a travelogue of dysfunction in Alabama's federal courtrooms. We have helped unmask: (1) Mark Fuller, who butchered the Don Siegelman/Richard Scrushy case in the Middle District, and eventually was forced off the bench for beating his wife in an Atlanta hotel room; (2) William H. "Bill" Pryor, who posed nude for gay-porn photos that wound up at in the late 1990s (and likely lied about it during his U.S. Senate confirmation hearings, which would be a crime; (3) William M. Acker Jr., a Reagan appointee who is getting close to 90 and granted summary judgment for the University of Alabama Board of Trustees in my employment-discrimination/First Amendment case -- without allowing any discovery in the case. That, of course, simply cannot be done, under the law; it's like declaring a winner in a baseball game without allowing either side to bat.
That doesn't even include Abdul Kallon, the dreadful Obama appointee my wife, Carol, and I have seen screw up three cases in which we were involved -- each time with rulings that run contrary to black-letter law. Now we can add a new name -- R. David Proctor -- to Alabama's Hall of Judicial Infamy.
A 2003 nominee by (you guessed it) George W. Bush, Proctor has wound up hearing both of the federal lawsuits we've filed in recent months -- one involving my unlawful beating, arrest, and five-month incarceration in Shelby County; the other involving the glorified theft of our home, where we lived for 25 years, via a wrongful foreclosure. (The complaints are embedded at the end of this post.)
What are the chances that both of our cases would wind up with the same judge, in a system where assignments supposedly are made by "random selection." I would say it's close to zero, which suggests Proctor was assigned to our cases intentionally, not randomly, likely with the assignment of producing a certain desired outcome for legal elites. After all, Pryor (whose "duty station" is the Hugo Black Courthouse, meaning he more or less is Proctor's boss) is a defendant in one case. GOP operative Rob Riley, who is close to Pryor and such right-wing luminaries as Karl Rove, is a defendant in both cases -- as is Attorney General Luther Strange and his campaign manager/mistress Jessica Medeiros Garrison, both staunch Pryor/Riley allies.
Has Proctor been unlawfully assigned to protect all the Bushies who have abused us over the past eight years or so (it's 16 years if you go all the way to the beginning of our legal woes, which include lawyer William E. Swatek, the father of Riley acolyte Dax Swatek)? That's certainly the way it looks from here.
We've already seen signs that Proctor is, in fact, cheating us. I will go into details, with citations to law and such, in upcoming posts. But for now, here is a brief, by the numbers, look at Proctor's chicanery:
(1) It's undisputed that we qualify to proceed in forma pauperis (IFP), a fancy term for indigent, in both cases. U.S. Magistrate T. Michael Putnam, who originally had what we call "the house case," granted IFP status before Proctor somehow took over that matter; Proctor himself granted IFP status in what we call "the jail case." That means, under the law, we are entitled to proceed without paying filing fees -- and the court is obligated to issue summonses and conduct service on our behalf.
(2) We fulfilled all of our obligations -- providing an affidavit with detailed financial information, sending names and addresses of defendants to the clerk's office, and even having an employee named Angela Day tell us that the court would handle service, as prescribed by law. Anyone with access to Pacer can check the court record and see Putnam granted us IFP status. Service went smoothly with "the house case," and a number of parties have filed Motions to Dismiss, which are pending. (Under the law, they cannot be granted, but we will see how that goes, with Proctor on the case.)
(3) The record shows that Proctor granted IFP status in "the jail case," but he put a twist on it -- one that is not supported by law. Proctor required us to make a partial payment of fees ($200), which we timely paid, and is lawful. The theory is that such partial payments discourage IFP parties from filing frivolous cases. Once we made the payment, we were entitled to have the court issue summonses and complete service, with defendants receiving notice to respond within a time frame allowed by law. Statutory law says the court (clerk's office) not only has an obligation, but a duty, to conduct service on our behalf. And case law says that, once IFP status has been granted and the case has been determined not to be frivolous (a bar we apparently crossed with ease, in both cases), the judge is to stay out of things until defendants respond. After all, the judge has no authority over defendants until service has been completed.
(4) Sounds relatively straightforward, right? Well, not with Proctor. He claimed we had "partial IFP status," and the law does not require the court to conduct service for such parties. He used that rationale to order the court not to conduct service in our "jail case," even though the law says he has no authority to take any action until defendants have been served and responded.
(5) There is a slight problem with Proctor's approach: It isn't lawful. Our research indicates there is no such thing as "partial IFP status," under the law. You either are IFP and do not have to pay fees or you are IFP and are required to pay partial fees; but you cannot be "partial IFP." Whether you are required to pay a partial fee or not, the law says you are entitled to have the court issue summonses and serve defendants. That memo apparently did not reach Proctor; in truth, Proctor probably knows the law but is choosing to act corruptly anyway.
(6) We had fulfilled all of our duties to the clerk's office and even checked with Ms. Day to make sure they had our material, and everything was a go. We thought service had been completed, until we got an order indicating Proctor had intervened, claiming we were "partial IFP" litigants and were not entitled to have the court conduct service. Proctor gave us a small window to conduct service ourselves, and stated if we failed to do so, the "jail case" would be dismissed. (I forget the amount of time he allowed, and I don't have immediate access to the document, but I think it was roughly two to three weeks.) In our living quarters at what we've come to call "The Shiftless Drifters Fleabag Motel," mail did not come directly to us (and as pro se litigants, we did not have access to the electronic filing that lawyers can use). Our mail was delivered to a central office about a block from where we lived, and we generally picked it up once a week. By the time we finally got Proctor's order, about 10 days of our allotted time had elapsed.
(7) The loss of time should have been irrelevant because the bigger issue was this: Proctor's order was wildly contrary to law, which says the court had a "duty" to conduct service on our behalf. We argued that point, among others, in a response to Proctor's order. But we quickly received another order, which apparently crossed in the mail with our response, claiming we had failed to prosecute our case and it was being dismissed without prejudice (meaning the claims have not been heard on their merits and can be refiled).
(8) We have two options -- (a) Appeal Proctor's bogus order to the U.S. Eleventh Circuit; (b) Refile the "jail case." We have chosen the first option and now are filing the paperwork to have the matter heard on appeal. In addition to being a gross injustice and time waster for us, it is a waste of judicial resources -- your tax dollars at work, thanks for R. David Proctor.
Sadly, we've seen this kind of thing happen over and over in Alabama Federal Courts. Hopefully the Eleventh Circuit will follow its own clear precedent, make the correct ruling, and let us move on with a case that involves profoundly important matters -- law enforcement's deprivation of a citizen's freedom for the "crime" of blogging. That issue was important enough to attract national and international news attention in 2013-14 -- from The New York Times, Al-Jazeera, Huffington Post, Talking Points Memo, and many other outlets.
We are determined to seek justice, partly for us and partly to help ensure (we hope) that something like this never happens to another journalist (or regular citizen, for that matter, who could be thrown in jail, under Shelby County "law," simply for writing a negative review about a business on a Web forum, such as Yelp).
Judge R. David Proctor, who either is incompetent or corrupt, has thrown up unlawful hurdles. But we have some arrows in our quiver that we did not have when other cheat jobs were taking place.
Proctor would be wise to remember his oath, to uphold the law, and act accordingly.
(To be continued)

Riley Duke Complaint3 by Roger Shuler on Scribd
Garrison Strange Complaint2 by Roger Shuler on Scribd

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