Motion For Counsel Reply

Hiawatha Hoeft-Ross Monica Hoeft-Ross 2 Martin Hoeft-Ross Kirsten Hoeft-Ross 3 P.O. Box 6946 Reno, NV 89513 4 (775)544-2721 1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *****

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Hiawatha Hoeft et. al.,

Appellate Case No: 07-17369

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Plaintiff- Appellants

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D.C. No. CV-N-05-0121-LRH(VPC)

vs

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Werner Hoeft et. al.

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Defendant - Appellees _______________________________/

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REPLY TO OPPOSITION TO MOTION FOR APPOINTED COUNSEL

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FACTS

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This is a case of overt racial discrimination against Plaintiff/Appellant

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Hiawatha Hoeft-Ross and the devastating effect it had on his family.

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discrimination was both direct and indirect. Plaintiff/Appellant Hiawatha Hoeft-Ross

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was denied the right to contract and enter into a lease for real property based on his

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race and disability, and was subjected to ridicule by the Defendant/Appellees through

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his children and his wife by being told that he was a “no good nigger” and that

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Plaintiff/Appellant Monica Hoeft-Ross should divorce him because they did not like

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darkies. Defendant/Appellees are again standing in the way of the Plaintiff/Appellant

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Hiawatha Hoeft-Ross who is trying to stand up for his rights, by and through their

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attorneys starting from eviction court to present by making false claims that

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Plaintiff/Appellants are vexatious and that this case has no merit, when in an order

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from the lower court denying dismissal this case, stated the case was deemed meritorious. This court should also be aware that

The

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Plaintiff Hiawatha Hoeft-Ross suffers from a Chronic Traumatic Brain Injury (See

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Exhibit “A” from Dr. Chappel and exhibit “B” from Dr. Spogen documenting that

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Hiawatha Hoeft-Ross is suffering from seizures and has been ill since May of 2008)

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and Monica Hoeft-Ross suffers from multiple cognitive impairments as well (see

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exhibit “C”) as well as supporting declarations Hiawatha Hoeft-Ross and Monica

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Hoeft-Ross attached hereto.

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I.

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INTRODUCTION

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Counsel begins by saying that the instant motion is expressly filed and signed

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by Hiawatha Hoeft-Ross and refers to “Plaintiffs” in his motion and thus appears to

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be seeking appointed counsel for some or all of the appellants.

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What counsel fails to understand that this appeal is filed as Hiawatha Hoeft-

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Ross et al., [emphasis added] and includes all Plaintiffs to this appeal. Pro se

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pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.

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Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th

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Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint,

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a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity

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to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);

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Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). So if there are any

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deficiencies in plaintiffs papers or pleadings, the Court would be sure to notify

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Plaintiffs to correct it.

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II.

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LEGAL ARGUMENT

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Plaintiffs understand that there is no constitutional right to counsel. This is a

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moot point. The standard for appointed counsel is [a] finding of “exceptional

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circumstances” requires an evaluation of both (1) the likelihood of success on the

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merits and (2) the ability of plaintiff to articulate his claims in pro se in light of the Page 2 of 8

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complexity of the legal issues involved. Hatton v. Bank of America 2:2006cv01888

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Counsel goes on to suggest that Plaintiffs have been able to present their claims and

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that Hiawatha Hoeft-Ross and Monica Hoeft-Ross are very experienced in litigation,

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and that there are no exceptional circumstances warranting appointment appointed

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counsel. The Plaintiffs only experience in litigation is that in pursuing their first

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amendment right to redress wrongs perpetrated against them. That does not mean that

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the plaintiffs were successful in their claims. Counsel is purposely blocking the

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Plaintiff’s right to motion the court for counsel under the exceptional circumstance

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that Plaintiff Hiawatha Hoeft-Ross and Monica Hoeft-Ross are legally disabled, and

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unable to keep up with the rigors of litigation. (2) Plaintiffs have no experience in

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attacking a summary judgement at the appellate level, and the standards thereof and

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are unlikely to articulate the claims in pro se in light of the complexity of the issues

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involved. (1) Plaintiffs believe that they were wronged by the District Court’s

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decisions and perceive a likelihood of success on the merits of their claims.

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A.

Hiawatha Hoeft-Ross Has Pursued Numerous Litigations Pro se Since 1998

Counsel argues that the attachments to Plaintiff’s Motion is an unsworn

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statement purporting to be signed by Dr. John. M Chappel, and asks this court to

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disregard this statement as hearsay and incompetent evidence under Fed. R. App P.

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(27)(d)(1). Counsel fails to understand that pursuant to NRS 630.3062 Failure to

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maintain proper medical records; altering medical records; making false report;

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failure to file or obstructing required report; failure to allow inspection and copying

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of medical records; failure to report other person in violation of chapter or

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regulations. The following acts, among others, constitute grounds for initiating

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disciplinary action or denying licensure.[emphasis added]. In general, the purpose of

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rules of evidence is to regulate the evidence that the jury may use to reach a verdict.

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Historically, the rules of evidence reflected a marked distrust of jurors. The Federal

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Rules of Evidence strive to eliminate this distrust, and encourage admitting evidence Page 3 of 8

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in close cases. Even so, there are some rules that perpetuate the historical mistrust of

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jurors, expressly limiting the kind of evidence they may receive or the purpose for

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which they may consider it.

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At the same time, the Rules center on a few basic ideas -- relevance, unfair

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surprise, efficiency, reliability, and overall fairness of the adversary process. The

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Rules grant trial judges broad discretion to admit evidence in the face of competing

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arguments from the parties. This ensures that the jury has a broad spectrum of

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evidence before it, but not so much evidence that is repetitive, inflammatory, or

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unnecessarily confusing. The Rules define relevance broadly and relax the

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common-law prohibitions on witnesses' competence to testify. Hearsay standards are

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similarly relaxed, as are the standards for authenticating written documents. At the

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same time, the judge retains power to exclude evidence that has too great a danger for

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unfair prejudice to a party due to its inflammatory, repetitive, or confusing nature or

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its propensity to waste the court's time.

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Counsel goes on to list the numerous filings of Hiawatha Hoeft-Ross since the

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onset of his traumatic brain injury and the exacerbation thereof on October 12, 2006.

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As stated before, these were cases brought before the court out of need to redress the

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wrongs committed against him, and under a fixed income, there were no resources to

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hire an attorney and Hiawatha Hoeft-Ross had the help of his children, wife, and

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outside resources to do non-legal work when his medical condition did not allow him

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to do so. Counsel was not there in any of the proceedings to see the condition and

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demeanor of Hiawatha Hoeft-Ross and counsel’s affidavit and subsequent writings

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thereto should be stricken as hearsay. He does not know first hand the “litigation

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savvy” of the Appellants. Counsel is making conclusory allegations, not made on

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personal knowledge and is not able to testify competently therein, pursuant to Fed.

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R. App P. (27)(d)(1). Counsel’s reply brief relies on materials that are not a part of

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the record in this case, and the cases and excerpts therein, in particular, should not be Page 4 of 8

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made part of this record U. S. v. True No. 99-5111( 6th Cir W.D. KY).

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Counsel goes on to imply that the actions of the Appellants are vexatious: Black's Law dictionary defines "vexatious proceedings" as follows:

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Proceeding instituted maliciously and without probable cause. Paramount

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Pictures v. Blumenthal, 256 App.Div. 756, 11 N.Y.S.2d 768, 772. When the party

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bringing proceeding merely wishes to annoy or embarrass his opponent, or when it

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is not calculated to lead to any practical result. Such a proceeding is often described

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as "frivolous and vexatious," and the court may dismiss it on that ground.

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"An appeal [or complaint] is not frivolous if "any of the legal points [are]

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arguable on their merits ..." Anders v. California (1967) 386 U.S. 738; "The objective

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standard looks at the merits of the appeal from a reasonable person's perspective. ...

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whether any reasonable person would agree that the point is totally and completely

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devoid of merit, and therefore, frivolous. ... an appeal is not frivolous if "any of the

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legal points [are] arguable on their merits." In re Marriage of Flaherty (1982) 31

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Cal.3d 637, 649. Plaintiffs/appellants, have never instituted any action that can be

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considered frivolous and all actions have been either decided on their merits,

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dismissed, or settled out of court. Not one court stated that the actions brought by

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Plaintiff/Appellants is frivolous or maliciously instituted.

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B.

Appointment of Counsel Would Assist Appellants in Abusing the Purposes of 28 USC 1915

Counsel states in no uncertain terms claims that Plaintiff/Appellants are abusing the status of In Forma Pauperis. Counsel has waived his right to bring anything up about the In Forma Pauperis. Counsel was served on February 7th 2008, with a request to proceed IFP and did not respond, and therefor waived his right to

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make this an issue. Plaintiffs are merely protecting their rights to a fair tribunal in this

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complex litigation, and the In Forma Pauperis was granted as a matter of properly

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filling out Form 4 and being adjudicated by this Court on the affidavit of indigence

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submitted to this Court by the Plaintiff/Appellants. Respondents/Appellees also note

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that the IFP1 was filled out only by Hiawatha Ross. Hiawatha Ross is the only

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breadwinner in the family and the IFP was based on his income only.

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Hiawatha Hoeft-Ross is not acting as de facto counsel for all others by seeking

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IFP status for others, but here again the caption of the complaint reads Hiawatha

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Hoeft-Ross et al. [emphasis added] and therefore includes all other complainants but

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the crux of the appeal lies with Plaintiff/Appellant Hiawatha Hoeft-Ross’ civil rights,

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and only he has suffered the deprivation of his civil rights and that is of primary

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importance in this appeal, that the court erred in dismissing his allegations of the

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denial of the right to enter into a contract or lease due to Race and Disability and

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subsequently refused to hear the remaining Plaintiff/Appellant’s state law claims that

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were inextricably intertwined with the federal claims.

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Counsel also comes to this Court seeking that the children either represent

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themselves or get counsel since their turning of age. But at the time that the

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complaint was filed, the children were minors, and not subject to representation or a

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guardian ad litem according to the Laws of the State of Nevada. It was a snapshot in

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time and therefore the status of minor stands. The Fifth Circuit Court of Appeals'

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perspective of Rule 11 is that "[l]ike a snapshot, Rule 11 review focuses on the instant

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when the picture is taken--when the signature is placed on the document." Thomas

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v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir.1988). *** [T]he duty is firmly

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linked to the act of signing. If such a snapshot in time is not a rule, at the signing of

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the complaint, then the change in status of any party after the signing of the complaint

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would result in needless if not endless litigation.

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In Forma Pauperis Page 6 of 8

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Plaintiff/Appellants are not trying to pursue a case without merits and using

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“tactics” to manipulate this Court, but Plaintiff/Appellants contend they have a

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legitimate case before this tribunal, but do not know how to go about properly

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prosecuting their case in an appellate Court of law.

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Plaintiffs/Appellants minds made serious mistakes in not adjusting scheduling

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according to the Plaintiff’s/Appellant’s disability and there exists a meritorious

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controversy in which the Court of Appeals must make a decision and is not without

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merit as Counsel claims.

The District Court in

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Counsel also harps on Monica Hoeft-Ross as holding herself out to be a

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paralegal. The exhibit that Counsel sets forth as being an example of Monica Hoeft-

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Ross’ writings, that supposedly shows that she is capable of representing herself, is

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about 15 years old, and copyrighted in 1993 and modified, by who knows who in

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1999. (See Exhibit “D”). Counsel is trying mislead this court by putting in only part

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of the record and not the whole. There is no authentication of this document, and

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Monica Hoeft-Ross has no way of knowing what modifications were made by who,

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and is therefore not only unreliable evidence, but unauthenticated and therefore

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hearsay. The publisher has no way of knowing if at all Monica Hoeft-Ross wrote

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this, because there was no face-to-face communication regarding this write-up.

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Plaintiff/Appellant Monica Hoeft-Ross did not claim any disability at the time this

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dissertation was apparently written. Plaintiff/Appellant Monica Hoeft-Ross does not

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remember this writing, as it is so old. Plaintiff/Appellants also ask that this document

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be stricken due to hearsay and that it is brought up for the first time on appeal.

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Respondents/Appellees ask this court from permitting appellants to “exploit”

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the purposes of 28 USC 1915. Plaintiff/Appellants are not looking to exploit this

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Court in any manner, but merely to ask for assistance in properly prosecuting their

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case in a full and fair tribunal. The Court is asked to disregard the statements of the

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IFP argued therein pursuant Fed R. App. P. 27(d)(1). If the courts disregard counsel’s

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statements,

Plaintiff/Appellants

contend Page 7 of 8

that

the

opposition

of

the

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Defendant/Appellees is both legally and factually unsubstantiated and should

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therefore be denied because they waived their rights because they did not respond to

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the IFP.

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III.

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CONCLUSION

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The Plaintiff/Appellants have no ability to proceed in pro se as they are

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completely unfamiliar with challenging a summary judgement in an Appellate

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proceeding and have no legal resources to prosecute such a case. Plaintiff/Appellants

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are both disabled and believe they present an exceptional circumstance to the Court.

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Plaintiff/Appellants are confident that they will succeed on the merits of this case if

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represented by counsel.

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Respectfully submitted

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Date: July 10th , 2008

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__________________

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Hiawatha Hoeft-Ross

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__________________

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Monica Hoeft-Ross

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