Ending Discrimination In The Courts

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE: 06-CV-1428-MOORE JENEAN MCBREARTY Plaintiff ProSe

PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES

V. BRIAN KOJI; HIGHLANDS COUNTY CIRCUIT COURT; FLORIDA 2ND DISTRICT COURT OF APPEALS; JUDGES OLIN SHINHOLSER, PATRICIA KELLY, DOUGLAS WALLACE AND EDWARD LAROSE, in their official capacities Defendants FACTS Plaintiff, Jenean McBrearty, is a 61 year old female who became disabled on January 23, 2006, and began receiving $753.00 in Social Security Disability benefits in October, 2007. Disabilities include difficulty in walking, standing, and sitting because of a leg/foot injury sustained in October 2005, foot-drop, high blood pressure, degenerative spinal/disc disease, Meniere’s Syndrome, and arthritis. She is unable to stand or sit for long periods of time, and experiences dizziness, confusion, blurred vision, falling and labyrinth-related problems, is not supposed to fly in pressurized cabins, or be under water. On May 10, 2006, Plaintiff filed a pro se law suit against South Florida Community College (SFCC) because it breeched an employment contract that left her bankrupt. Plaintiff was granted a trial following a court-ordered (bad-faith) mediation

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with opposing counsel (Defendant Brian Koji) by Judge Karen Master’s, but after a pretrial hearing via phone in which I explained to her that I had hearing problems, she became nasty, and refused to rule on my motion regarding the bad faith mediation. Plaintiff filed a request for recusal, and the case was given to Judge Shinholser who allowed opposing Counsel to file a third Motion for Summary Judgment, and a hearing was scheduled for July 5, 2007. On or about May 15, 2007, Plaintiff called Highlands County Circuit Court and asked the Clerk about Reasonable Accommodation. At that time Plaintiff was told by the clerk that Highlands County did not have a procedure for granting reasonable accommodation, and that each Judge handled the requests on his own, that she should call Shinholser’s JA. I did so, and spoke to Denise Wilcox, who explained that ex parte communications with the judge were forbidden, so Plaintiff could not speak with him directly. Plaintiff explained that she had appeared before Judge Master’s by phone, and that she had granted my request. Plaintiff explained to her that she was disabled, and that flying from Kentucky to Tampa, and then driving to Sebring was dangerous to my condition, an undue burden. Wilcox told Plaintiff it was useless to request any telephone appearances with Shinholser, as he did not like them and requests of that nature made him angry. Plaintiff asked about writing a letter to him, and she said it wouldn’t do any good. At no time did she tell Plaintiff that the court had a duty to make reasonable accommodations, and how someone would go about making arrangements in any other way than through Judger Shinholser.

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Neither Wilcox, nor the clerk advised Plaintiff in any way that there was a either a grievance procedure or reasonable accommodation procedure available to me. Rather, Plaintiff was dissuaded from making a request at all, and after the chilling treatment she received from Judge Master’s, Plaintiff was afraid to anger another judge. Plaintiff attempted to make the hearing in person, and flew to Tampa, then drove to Sebring, arriving one and a half hours late for the hearing. When she returned to Kentucky, she immediately filed for a Reconsideration and Rehearing based on her disability, and sent Judge Shinholser her evidence of disability and of good faith effort to appear, including an explanation of the nature of her disability, a speeding warning, airline ticket stubs, a doctor’s report, and the contact information of her Rehabilitation Counselor in Kentucky. Opposing counsel wrote an objection to Plaintiff’s request for reconsideration and rehearing in which he references Plaintiff’s disability. Shinholser denied Plaintiff her Constitutional right to due process, and denied her motion. Plaintiff continued to press for her rights through the appellate process, including a detailed recitation of Judge Shinholser’s and the Circuit Court’s failure of the Circuit Court to provide Reasonable Accommodation in her opening brief. Again, at Oral Argument, Plaintiff made the appellate Tribunal aware of the deprivation of her rights, and again in her Motion for Reconsideration En Banc, she made the entire 2nd District court of Appeal aware of the deprivation of her rights to due process. Acting under color of law, none of the Florida judicial community made Plaintiff aware that there was a grievance procedure. Plaintiff has a copy of the oral arguments she

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presented and the first words out of her mouth after do you have any questions…. were “This case is important because it addresses the rights of disabled people…” CAUSES OF ACTION AGAINST HIGHLANDS COUTY CIRCUIT COURT: VIOLATION OF THE AMERICAN S WITH DISABILITIES ACT OF 1990 Title II 1. Plaintiff alleges that Highlands County Circuit Court had a duty to Plaintiff to provide information about reasonable accommodation, and engage in an interactive process with her to determine what reasonable accommodation could be made for her to attend the July 5, 2007 hearing., and/or advise her of the grievance procedures against Judge Shinholser and his JA who refused to make reasonable accommodation. Highland’s County Circuit Court failed in this duty by not mandating notification of pro se plaintiffs by every Judge of the existence of or procedures whereby a disabled plaintiff can receive reasonable accommodation. The duty to communicate such information is created by the following statues:

Americans With Disability Act of 1990 (ADA) which protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, facilities or activities of all state and local governments. Also TITLE 28—JUDICIAL ADMINISTRATION , CHAPTER I— DEPARTMENT OF JUSTICE PART 35 -- NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES

Communication § 35.160 General. (a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. (b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

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(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities. The Highlands Court Clerks Office does not list the ADA Coordinator, nor does it provide any information regarding reasonable accommodation, or direct inquiries for same to the public on its web site. The web site for the 10th Judicial Circuit contains no information regarding reasonable accommodation either. Also the Rehabilitation Act of 1973 Sec 504 which states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. Highlands county received federal assistance. CAUSES OF ACTION AGAINST JUDGE OLIN SHINHOLSER (Violations of ADA, 14th Amendment rights to Due Process and Equal Protection; 42 USC 1983 Deprivation of Constitutional Right under color of law) 42 USC 1983 states: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 1. He refused to make reasonable accommodation to the disabled Plaintiff before a disopositive hearing so she could fully participate in a court proceeding; 2. He denied Plaintiff Constitutional rights to due process and equal protection by denying a rehearing;

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3. He improperly considered Plaintiffs disability in his decision to deny her a rehearing and his decision to vacate a trial order without actually vacating the order; 4. He denied Plaintiff her right to a jury trial; 5. He knew of his duty to make reasonable accommodation, and ignored it; 6. He acted under color of law to deny Plaintiff a right, privilege and immunity under the 14th Amendment.; 7. He entered into a conspiracy with Brian Koji to deprive Plaintiff of her constiutional rights to due process and equal protection. CAUSES OF ACTION AGAINST DEFENDANT BRIAN KOJI (Violations of ADA, 14th Amendement rights to Due Process and Equal Protection; 42 USC 1983 deprivation of Constitutional rights under color of law)

1. Brian Koji improperly used Plaintiff’s disability as a reason for Judge Shinholser to deny her a rehearing and her trial on the merits of her case. That is, he knew Plantiff was disabled, knew she had trouble traveling, knew she has appeared by phone before Judge Masters, 2. Koji discounted her request for rehearing based on her disability, and displayed animus and bias towards her disability in his communication with Judge Shinholser. 3. Koji entered into a conspiracy with Judge Shinholser to deny Plaintiff due process, equal protection in the denial of her hearing and her trial, 4. Breeched his duty as an officer of the court to notify a pro se Plaintiff of her reasonable accommodation options when Highlamds County Circuit Court denied

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them, which he knew about after Plaintiff filed for rehearing; or inform her of any grievance proceudres that would allow her to redress their denial when he found out about the denial. CAUSES OF ACTION AGAINST FLORIDA 2ND DISTRICT COURT OF APPEALS AND JUDGES KELLY, WALLACE AND LAROSE (Violations of ADA, 14thAmendment right to due process and Equal Protection, 42 USC 1983)

1. Judges Kelly, Wallace, and LaRose and the 2nd District Court of Appeals En Banc condoned the deprivation of Plaintiff’s rights by Highlands Couty Circuit Court (HCCC), Judge Shinholser and Koji even though Plaintiff sought the exercise of her rights to due process both in writing and at oral argument and a request for rehearing and reconsideration enbanc, 2. Failed to notify Plaintiff of a grievance procedure; and thereby acted under color of law not only to deprive Plaintiff of her rights, 3. Also shielding HCCC, Shinholser and Koji from corrective action and direction by a higher court, thus perpetuating the wrongdoing of defendants HCCC, Judge Shinholser and Brian Koji. IMMUNITY: While Defendants’ may seem to have immunity, this immunity disappears when a fundamental right is claimed, as Plaintiff has pleaded in her complaint that she was deprived of due process and equal protection rights to a fair hearing and/or a trial. Defendants’ immunity argument must fail as a matter of Federal case law.

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In Tennessee v. Lane, 541 U.S. 509 (2004), the Supreme Court ruled that Congress did have enough evidence that the disabled were being denied those fundamental rights that are protected by the Due Process clause of the Fourteenth Amendment, among those rights being the right to access a court. Further, the remedy Congress enacted was congruent and proportional, because the "reasonable accommodations" mandated by the ADA were not unduly burdensome and disproportionate to the harm. Plaintiff has properly pleaded a violation of due process under the 14th Amendment. (See Johnson v Southern Connecticut State University, 2004 WL 2377225 (D. Conn. Sep. 30, 2004 – (I)n the wake of Lane, it appears that a private suit for money damages under Title II of the ADA may be maintained against a state only if the plaintiff can establish that the Title II violation involved a fundamental right.”) The reasonable accommodation she requested – that of telephonic appearance – is not unduly burdensome for the court, as she did appear telephonically in Judge Master’s Court. Additionally, in Haas v Quest Recovery Services Inc., 338 F. Supp. 2d 797 (N.DS. Ohio Sep 20, 2004) quoting Popovich V. Cuyahoga County Court Pleas, 276 F. 3d 808 (6th Circuit 2002), the court outlined a list of what would be considered a fundamental right: the right to be present at trial, the right to a meaningful opportunity to be heard, the right to a trial by jury or the public’s right of access to criminal proceedings. Here, Plaintiff was denied the right to be present at a dispositive hearing, and was precluded from having a meaningful opportunity to be heard. That Counsel and Judge Shinholser “discussed” the issues, including Plaintiff’s alleged and predicted arguments cannot substitute for this right.

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In Phiffer v Columbia River Correctional Institute, 384 F.3d 791(9th Cir. Sep 21, 2004), the Supreme Court vacated and remanded for reconsideration a case in which an inmate with osteoporosis and osteoarthritis was unable to sit for the three hour periods required for participation in his assigned prison program, requested return to a previous program or reasonable accommodation, and suffered physical pain as a result of the denial of the requested accommodation, The court rejected the state’s 11th Amendment immunity, finding it consistent with its precedent (that Title II as a whole validly abrogates states’ immunity), and declined to further review that settled principle. In Association for Disabled Americans Inc. v Florida International University, No. 02-10360 F. 3d (April 6, 2005), the Court ruled that the University failed to provide qualified sign language interpreters, effective note takers, and other aids, and stated that Title II is valid 14th Amendment legislation and properly abrogates states’ sovereign immunity. Though judges are protected by absolute immunity when sued in their individual capacity for damages or injunctive relief, they are not immune in their official capacities, The judges are being sued in their official capacity. Additionally, injunctive relief is appropriate in this case as a declaratory decree was made by Judge Karen Master’s in this case, the declaration that Plaintiff had a right to trial by jury. CONCLUSION WHEREFORE, Plaintiff is asking the court for vindication of her constitutional rights to due process and equal protection as a disabled person, and asks the court for a

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jury trial, and/or to award her damages in the amount of $1,000,000.00 or as awarded by the jury. Respectfully submitted this _____ day of August, 2008.

________________________ Jenean McBrearty Plaintiff pro se 685 Ben Ali Dr 407 Danville KY 40422

CERTIFICATION OF SERVICE I Pepper Cozy, certify that on _________of August, 2008, I placed the above document in the mail addressed to: David J Gantz Florida Attorney General Office of Attorney General Civil Litigation department 110 SEW 6th Street 10th Floor Ft. Lauderdale FL 33301-5001 ________________________ Pepper Cozy

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