Lee & Suesie Hempfling, Pro Se Apache Junction, AZ 85120 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
| LEE HEMPFLING & SUESIE HEMPFLING , Plaintiffs, vs. M. Lando VOYLES (Kent Volkmer) , BOYD T. JOHNSON. BRADLEY M. SOOS, (VOLUNTARILY DISMISSED) MARK BRNOVICH, LORETTA LYNCH (VOLUNTARILY DISMISSED) Defendants |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV-16-3213-PHX-ESW PERMANENT PREVENTIVE INJUNCTION AND SUMMARY JUDGMENT |
COMPLAINT AND REQUEST FOR PERMANENT PREVENTIVE
INJUNCTION AND SUMMARY JUDGMENT
I. The parties to this complaint
A: The Plaintiffs
Plaintiff No. 1
LEE HEMPFLING
Apache Junction, AZ 85120
Plaintiff No. 2
SUESIE HEMPFLING
Apache Junction, AZ 85120
B: The Defendants
Defendant No. 1
M. LANDO VOYLES; in official capacity
County Attorney
Pinal County
Florence, AZ 85132
Defendant No. 2
BOYD T. JOHNSON, Judge Retired; in official capacity
Pinal County
Superior Court Administration
Florence, AZ 85132
Defendant No. 3
BRADLEY M. SOOS, Judge Pro Tem; in official capacity (VOLUNTARILY DISMISSED)
Pinal County
Superior Court Administration
Florence, AZ 85132
Defendant No. 4
MARK BRNOVICH; in official capacity
Attorney General of Arizona
Phoenix, AZ 85007
Defendant No. 5
LORETTA LYNCH; in official capacity (VOLUNTARILY DISMISSED)
Attorney General of the United States
U.S. Department of Justice Building
Washington, DC 20530-0001
II. Basis for Jurisdiction
Federal Question in 42 U.S.C. § 1983: 14th Amendment Due Process Clause. 42 U.S.C. § 1983 cases allow a suit against any public employee who “subjects, or causes to be subjected” someone to a deprivation of federal constitutional rights. Judicial positions in this action are those who subjected Plaintiffs to 14th Amendment violations, while prosecutorial entities are those who caused or may have caused Plaintiffs to be so subjected. As a general rule, absolute judicial immunity does not bar an award of prospective injunctive relief (Pulliam v. Allen, 466 U.S. 522, 541-42 (1984) ). “…although, prospective relief awarded against a state officer also ‘implicate[s] Eleventh Amendment concerns,’ Mansour, 474 U.S. at 474 U. S. 68, the interests in ‘end[ing] a continuing violation of federal law,’ ibid., outweigh the interests in state sovereignty and justify an award under § 1983 of an injunction that operates against the State’s officers or even directly against the State itself. (Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)).
III. Notice
Notice is hereby given to all parties that this action is brought under F.R.C.P. Rule 65 seeking permanent preventive injunction and F.R.C.P. Rule 56 seeking summary judgment, pursuant to 42 U.S.C. § 1983 for deprivation of 14th Amendment rights to procedural due process. As this is an action brought against judicial officers, it is imperative to note that NO declaratory relief is available.
IV. Statement of Claim
A: The events giving rise to this complaint took place in Pinal County Superior Court, Pinal County Arizona.
B: The events giving rise to this complaint took place on or near May 3, 2012 and/or March 25, 2014 and continue to this day.
C: Four conditions exist that contribute to the denial of procedural due process to the Plaintiffs.
1: A judgment has been ‘entered’ on the docket (Docket Screen Shot 1, see Brief attachments) thereby rendering the delay of two and one half years: a postponement of the proceedings of the enforcement of that judgment. An “ordinary mode prescribed by law” exists (Hagar v. Reclamation Dist) to postpone the proceedings of the enforcement of a judgment, which constitutes due process that cannot be ignored by imposing a simple ‘closure’ and blocking any objection to it. F.R.C.P. Rule 62.
2: The court has ‘closed’ the case. An administrative closure is “a postponement of proceedings,” rather than “a termination.” S. La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 F.3d 297, 302 (5th Cir. 2004). Imposing a closing as a means of postponement, rather than the required stay, denies procedural due process to the Plaintiffs as that process is dictated to be a ‘stay’ in F.R.C.P. Rule 62.
3: The court has vacated all future hearings. The combination of closed and vacated hearings, denies procedural due process to the Plaintiffs.
4: There is no legal justification to postpone proceedings to enforce the existing judgment. There are no outstanding questions. There are no resources, hearings, requirements or any other case related informations pending or waiting to be presented. No motions under rules 50, 52, 59 exist in the case. Motion under rule 60 is the subject of the Special Action, which was mandated on March 10, 2014. No entry has ever been made in any order of the court expressly determining that there is no just reason for delay. There is no external related issue or case that has any bearing on the instant case in the Superior Court.
V. Irreparable Injury
Plaintiffs have suffered irreparable injuries through the imposition of the denial of the Plaintiffs’ 14th Amendment rights of Due Process. The March 25, 2014 court order prohibiting any future hearings precludes asking that court for any reopening of the case or request that Rule 62 to followed properly. The court was moved for a default order with nothing served in response. The case is not related in any legal manner to any potential parallel criminal proceeding and cannot be legally withheld. The lack of a proper stay of the case, with its corresponding rights to notice, objection and appeal cannot be undone and is irreparable. That delay has meant Superior Court defendants have dissipated assets, sold assets, redistributed assets and have gravely reduced the ability to collect a judgment (the case IS a default, see Docket Screem Shot 2, brief attachments) with each day adding to the degree of difficulty and additional cost of that task.
VI. Summary Judgment
As no material fact necessary to decide this motion can be disputed, and that based on the undisputed facts, Plaintiffs are entitled to judgment as a matter of law and do hereby move the Court to enter Summary Judgment under F.R.C.P. Rule 56 in favor of the Plaintiffs for the violation of 14th Amendment procedural due process rights and in so doing, cause the issuance of the permanent preventive injunction to stop the ongoing deprivation of due process from all parties named herein.
VII. Relief
The Plaintiffs request the court to issue a permanent injunction ordering the Defendants to stop violating the Plaintiffs’ 14th Amendment rights of procedural Due Process by issuing the existing adjudication and final order of the case without delay. It is impossible to go back and undue the refusal of the court to grant Plaintiffs the right to imposition of Rule 62’s stay, and its right to object to any stay and appeal any stay, therefore all that can be done, is to stop that delay by issuing the entered judgment in the case and any final orders in the case and completing the over 5-year-old defaulted case. Plaintiffs further request that the court dismiss from this case any prosecutorial defendant deemed to not be involved in this matter. Plaintiffs afforded all parties the ability to not be included in this action if they were not involved. Not one responded. But that still requires any that may not be involved be dismissed from this action at the specific prosecutorial defendant’s request and the court’s discretion. We further ask that defendants equally share in reimbursing our court filing fees for this action.
VIII. Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing below, we certify to the best of our knowledge, information, and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Rule 11.
A: Pro Se Parties
We agree to provide the Clerk’s Office with any changes to our address where case-related papers may be served. We understand that our failure to keep a current address on file with the Clerk’s Office may result in the dismissal of our case.
Dated this 20th of September, 2016.
| LEE HEMPFLING, Pro Se APACHE JUNCTION, AZ 85120 | SUESIE HEMPFLING, Pro Se APACHE JUNCTION, AZ 85120 |