Rhodes v. Meyer

Citation334 F.2d 709
Decision Date16 November 1964
Docket NumberNo. 17580,17588.,17580
PartiesPaul RHODES, Appellant, v. Clarence A. H. MEYER et al., Appellees. Paul RHODES, Appellant, v. Richard M. VAN STEENBERG et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert A. Nelson, Sp. Asst. Atty. Gen. of Nebraska, Lincoln, Neb., made argument for appellees Clarence A. H. Meyer, and others, and filed brief with Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb.

Wm. F. Ryan, Deputy County Atty. of Douglas County, Nebraska, Omaha, Neb., made argument for appellees Patrick E. Corrigan and Jack Knudtson, and filed brief with Donald L. Knowles, County Atty. of Douglas County, Nebraska, Omaha, Neb.

Paul Rhodes, Howe, Neb., made oral argument pro se and filed brief.


Certiorari Denied November 16, 1964. See 85 S.Ct. 263.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff Paul E. Rhodes appeals from final judgment dismissing his complaint in each of these cases as to all defendants upon motions to dismiss filed by defendants. These cases were heard separately below. They were argued together here. We will deal with both cases in this opinion as many of the parties and issues are common and the disposition of both cases is controlled by the same underlying principles. Case No. 17,580 (No. 01682 below) will be referred to as Meyer. Case No. 17,588 (No. 01784 below) will be referred to as Van Steenberg.

Plaintiff's causes of action are based upon asserted violation of federal civil rights arising out of his alleged wrongful conviction of contempt of court by the Nebraska State District Court and the service of the sentence imposed. Substantial actual and exemplary damages are claimed.

Plaintiff in brief describes his action as a civil rights action to recover damages from the defendants for twice imposing involuntary servitude in violation of the XIII and XIV Amendments to the United States Constitution without conviction for a crime as a result of a conspiracy among the defendants consisting of State Supreme Court Justices, State District Judges, prosecuting attorneys, Clerks of Court, sheriffs, law enforcement officers, prison officials and members of the Nebraska integrated bar. Plaintiff's double imprisonment claim is based upon his contention that he twice served his sentence, once while he was held in the penitentiary pending appeal from his conviction and prior to his posting bail and again when he was compelled to serve a sentence after mandate issued by the Supreme Court dismissing his appeal. Complaint is likewise made of being held incommunicado while in the penitentiary and mistreatment in other respects. Deprivation and violation of rights guaranteed by the IV, V, VI, VII and VIII Amendments and Article 1, Section 9 of the United States Constitution are likewise claimed.

Judge Delehant, with great care and thoroughness, has accurately described the pleadings and the extensive history of this litigation in excellent memorandum opinions reported at 225 F.Supp. 80 (Meyer) and 225 F.Supp. 113 (Van Steenberg).

Judge Van Pelt in Rhodes v. Houston, D.C.Neb., 202 F.Supp. 624, aff'd, 8 Cir., 309 F.2d 959, cert. denied 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719, a previous civil rights action of the plaintiff based upon the same violation of his rights here asserted, largely relied upon by Judge Delehant in the present case, fairly describes such cause of action and sets out with extensive supporting authority the law of judicial immunity and related immunity of public officials carrying out judicial orders.1

Since a full and fair description of the pleadings, facts and issues involved in the multiple cases instituted by the plaintiff is readily available in the opinions just mentioned, we do not feel justified in consuming the considerable space which would be required to set such material forth in detail here. Such matters to the minimum extent necessary will be set out in our discussion of the issues to which we now turn our attention.


No diversity of citizenship here exists. Jurisdiction is based exclusively upon the Civil Rights Act, 42 U.S.C.A. §§ 1981, 1983, and 1985 to 1988. Defendants in each action urged that the complaint be dismissed for want of jurisdiction. Upon this issue, Judge Delehant states:

"And the writer of this memorandum acknowledges grave doubt whether, even on paper, the plaintiff has brought himself under the jurisdictional coverage of the Civil Rights Act, whether that Act ever has been or, even with its current liberal application, is, operative to confer jurisdiction on this court to determine, as between citizens of Nebraska, controversies that arise out of what is essentially a suit for damages on account of false imprisonment or malicious prosecution, or both." 225 F.Supp. 80, 96. See 225 F.Supp. 113, 128-129.

We fully share the trial court's doubt that jurisdiction exists. See Sarelas v. Sheehan, 7 Cir., 326 F.2d 490; Hulburt v. Graham, 6 Cir., 323 F.2d 723, 725; Byrd v. Sexton, 8 Cir., 277 F.2d 418; Basista v. Weir, W.D.Pa., 225 F.Supp. 619, 625 to 628.

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 definitely enlarges the scope of civil rights litigation. There is a marked distinction factually between that case and this. In Pape, the search appears to have been clearly illegal and no prosecution followed. Here plaintiff's contempt conviction which gave rise to the imprisonment has become final by reason of the dismissal of his appeal by the Nebraska Supreme Court for want of prosecution. As Judge Delehant points out, a number of state habeas corpus petitions based upon the conviction have been considered and denied. Moreover, Judge Van Pelt in Houston fully considered the constitutional attack here made upon the contempt conviction and found such conviction to be in all respect valid. As has been pointed out, this decision has been affirmed by this court and certiorari has been denied. It is difficult to see how the imprisonment imposed as a result of such conviction can possibly afford a basis for a violation of plaintiff's civil rights.

Finality of this protracted series of litigation arising out of a common source is highly desirable. In our view, Judge Delehant's decision upon the merits is clearly right for reasons hereinafter discussed. Hence, like the trial court, we shall assume without so deciding that jurisdiction exists.


The defendants in Meyer and Van Steenberg who were also defendants in Houston asserted the defense of res judicata in their various motions to dismiss and such defense is maintained in these appeals. After a thorough, and we believe accurate, examination and comparison of each of the actions below with Houston, Judge Delehant concluded:

"This court would be on solid ground if it were to regard Rhodes v. Houston * * * as dispositive adversely to the plaintiff herein, and in favor of all of the defendants hereto except those who were not prior defendants and the Justices of the Supreme Court of Nebraska who, although prior defendants, were not previously charged as liable in damages upon all of the plaintiff\'s claim herein, insofar as it rests upon facts that existed when the ruling in Rhodes v. Houston * * * was made." 225 F.Supp. 80, 106, Cf.225 F.Supp. 113, 128.

The doctrine of res judicata is especially applicable where protracted and multiple litigation of similar issues appears to be in the offing. Thus, without desiring to be repetitive of the extreme detail in which the district court examined the pleadings, this court shall reexamine them to the extent necessary to determine if either res judicata or stare decisis applies thereto.

This court recently had the occasion to discuss the test of sameness of causes of action and the following test was applied:

"`The primary test for comparing causes of action has long been whether or not the primary right and duty, and the delict or wrong combined are the same in each action. Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 * * *.\'" Engelhardt v. Bell & Howell Co., 8 Cir., 327 F.2d 30, 32.

The district court below observed that the opinion by Judge Van Pelt in Houston is "a notably correct and carefully reasoned deliverance in a case which was indistinguishable from the present one, whose setting and basic averments were, in fact had to be, identical with those now advanced by the plaintiff. The material out of which both of them have been made has been the experience over a limited period of time of one man with a single, though not entirely simple, problem." 225 F.Supp. 113, 131. Cf. 225 F.Supp. 80, 92-93.

The cases we are here considering and Houston allege similar conspiracies under the same Civil Rights Act. These conspiracies allegedly generated from the same source — a trial in state court for contempt of court in which the plaintiff herein was the defendant. The core of plaintiff's alleged wrongful treatment or handling by the various officials named as defendants in these cases stems from what plaintiff terms his trial in absentia. Indeed, were this an issue yet to be determined, we would certainly be inclined to drop the axe on this litigation less quickly; but the issue concerning the denial of the motion for continuance and the termination of the contempt trial without the presence of plaintiff was thoroughly discussed by Judge Van Pelt in Houston and adequately and correctly determined by him to be no basis for a claim against these defendants, 202 F. Supp. 624, 630-633. This finding reams the core out of plaintiff's complaints.

Judge Delehant concluded after an analysis of the pleadings that:

"It may accurately be said that the claim which the plaintiff undertakes to make out in his amended complaint herein was — and is — the claim which, in multiple counts, he tried to assert in Houston, plus two

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