catholic church supreme court torture case

No. 13-

I N TEDE

Supreme Court of the United States

SCOTT HUMINSKI, Petitioner,

V.

MERCY GILBERT M E D I C A L CENTER, DIGNITY H E A L T H ,

Respondents.

On Petition for a Writ of Cert iorar i to the United States Court of Appeals

for the Ninth Circui t

P E T I T I O N FOR A WRIT O F C E R T I O R A R I

Scott Huminski 24544 Kingfish Street Bonita Springs, FL 34134 (239) 300-6656 s_li\[email protected]

Petitioner January 30, 2013

Q U E S T I O N S P R E S E N T E D The Nin th Circuit rejected the logic o f the en banc

Vermont Supreme Court i n petitioner's case o f a decade ago Huminski v. Lavoie, 173 Vt . 517, 519-20, 787 A .2d 489, 492-93 (2001) condemning sua sponte judicia l orders without notice to the parties and without allowing responses by the parties. Lavoie approvingly cites authorities from the U.S. Courts o f Appeals for Second, Sixth and Seventh Circuits. See Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988) (noting that sua sponte dismisseds may "tend to produce the ver3^ effect they seek to avoid - a waste o f judic ia l resources"); Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983) (lack o f record resulthig from sua sponte dismissal hampers arguments on appeal and "results i n the waste o f judic ia l resources"); Doe v. St. Joseph's Hosp., 788 F .2d411 , 415 (7th Cir. 1986)); Lewis v. New York, 5A1 F.2d 4, 5 (2d Cir. 1976).

1. Whether Lavoie and authority cited therein be adopted as law of the land that is now split between the Ninth Circuit's rejection of Lavoie and the approval of Lavoie by the en banc Vermont Supreme Court and the Second, Sixth and Seventh federal circuits approvingly cited in Lavoie.

2. As sua sponte orders trump First Amendment speech contained hi Court papers, should extieme caution be employed when a Court acts sua sponte!

3. Do sua sponte orders violate procedural or substantive Due Process under these circumstances?

P A R T I E S TO T H E P R O C E E D I N G

The parties to this proceeding are S c o t t H u m i n s k i (hereinafter referred to as "Huminski" or "Petitioner") and Mercy Gilbert Medical Center and Dign i ty Health (hereinafter referred to as "Hospital Defendants").

I

P E T I T I O N FOR A WRIT OF C E R T I O R A R I

Huminski petitions for a wr i t of certiorari to review the judgment of the Uni ted States Court of Appeals for the N i n t h Circuit .

OPINIONS B E L O W

The Court of Appeals decision for which review is sought is non-published and simply states the "issues are so insubstantial" affirming the District Court's denial of preliminary injunction. Similarly, the District Court opinion is devoid of text other than the word "denied" that enunciates the reason for the order and cites earlier order that do not address preliminary injunctions. The District Court order on appeal was the first order issued by the District Court concerning a preliminary injunction which contains vir tual ly no on-point fact or law.

J U R I S D I C T I O N

This matter arose as an interlocutory appeal denying a preliminary injunction intending to prevent future violence against Huminski by the Hospital Defendants. Subsequently, this action was stia sponte disnussed w i t h prejudice by the District Court The Nin th Circuit affirmed the sua sponte denial o f preliminary injunction against violence on November 9, 2012. Huminski filed a motion for panel rehearing on November 14, 2012 which was denied on January 7, 2013 by the N in th Circuit. Jurisdiction is proper prursuant to 28 U.S.C. § 1254.

S T A T U T O R Y P R O V I S I O N I N V O L V E D

Sua sponte court orders are at odds w i t h the First Amendment right to expression i n c iv i l l i t igation and Due Process related to c iv i l l i t igation and established authority from State and Federal Courts.

S T A T E M E N T OF T H E C A S E

Huminski was subjected to an assault and torture by the Hospital Defendants, facts which stand undisputed and sworn on the record. Huminski requested a preliminary injunction prohibiting flirther violence. The Hospital Defendants d id not oppose the injunction, however, less than a week later the District Court, sua sponte, denied the preliminary injunction for unknown reasons. The Court did not allow the Hospital Defendants time to reply as set forth i n the Rules prior to the sua sponte order or a reply by Huminski . Interlocutory appeal to the N in th Circuit followed affirming the case as "insubstantial" without discussion o f fact or law.

The instant matter differs from the Lavoie case in that the sua sponte decision i n this matter was issued before the parties had a chance to reply to the motion for preliminary^ injunction. I n Lavoie, at least, the motion pleading cycle was allowed to complete.

R E A S O N S FOR G R A N T I N G T H E P E T I T I O N

1. T H E N I N T H C I R C U I T O P I N I O N C O N F L I C T S W I T H AND R E J E C T S A U T H O R I T Y F R O M O T H E R F E D E R A L C I R C U I T S AND T H E EN BANC V E R M O N T S U P R E M E C O U R T C O N C E R N I N G SUA SPONTE O R D E R S

IL T H E F I R S T A M E N D M E N T AND D U E P R O C E S S M U S T B E C A R E F U L L Y C O N S I D E R E D P R I O R T O SUA SPONTE C O U R T O R D E R S

III . APPEARANCE OF A F A I R AND I M P A R T I A L J U D I C I A R Y IS AN ISSUE O F NATIONAL IMPORTANCE T H A T CAN B E UNDERMINED BY SUA SPONTE COURT A C T I O N

3

C O N C L U S I O N

Lavoie is on point and necessary to preserve the integrity of our system of justice and the appearance o f propriety. Law throughout the United States should be consistent wi th regard to this issue.

The petition for certiorari should be granted.

January 30, 2013

APPENDIX

Appendix A — Niath Chcuit order on appeal

Appendix B - Ninth Chcuit denial of panel rehearing. .

Appendix C — District Coiu't order on appeal (This order was the first order of the District Court concerning a preliminary injunction, thus, i t is the only relevant opinion/order of the District Court concerning this interlocutory matter)

Case: 12-17225 11/09/2012 ID: 8395720 DktEntry: 29 Page: 1 of 1

FILED U N I T E D STATES COURT OF APPEALS

FOR THE N I N T H CIRCUIT

NOV 09 2012

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS.

SCOTT A L A N H U M I N S K I ,

Plamtiff - Appellant,

V .

M E R C Y GILBERT M E D I C A L CENTER, named as Mercy Gilbert Hospital; et al..

Defendants - Appellees.

No. 12-17225

D.C. No. 2:12-cv-01437-FJM District o f Arizona, Phoenix

ORDER

Before: L E A V Y , TROTT, and R A W L I N S O N , Circuit Judges.

The Clerk shall filed the opening brief submitted on October 29, 2012.

A review o f the record and the opening brief indicates that the questions

raised i n this appeal are so insubstantial as not to require further argument. See

United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating

standard).

Accordingly, we summarily affirm the district court's order denying

preliminary injunctive relief.

A l l pending motions are denied as moot.

A F F I R M E D . 0

MF/Pro Se


FILED U N I T E D STATES COURT OF APPEALS JAN 07 2013

FOR THE N I N T H CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SCOTT A L A N H U M I N S K I , No. 12-17225

Plaintiff - Appellant, D.C. No. 2:12-cv-01437-FJM District o f Arizona,

V . Phoenix

M E R C Y GILBERT M E D I C A L CENTER, named as Mercy Gilbert Hospital; et al., ORDER

Defendants - Appellees.

Before: L E A V Y , TROTT, and R A W L I N S ON, Circuit Judges.

The petition for panel rehearing is construed as a motion for reconsideration

o f this court's November 9, 2012 order. So construed, the motion for

reconsideration is denied. See 9th Cir. R. 27-10.

A l l other pending motions are denied.

No further filings w i l l be entertained in this closed case.

MF/Pro Se

Case 2:12-cv-01437-FJM Document 29 Filed 09/27/12 Page 1 of 1

Scott Hraninski,

Plaintiff,

vs.

I N THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV12-1437-PHX-FJM

O R D E R

Mercy Gilbert Medical Center et al.

Defendant.

I t is ORDERED DENYING plaintiffs Motions for preliminary injunction,,

certification and recusal for fhereasons stated in our order of September 13,2012. (Doc. 27).

We again urge plaintiff to seek fhe advice o^a lawyer.

DATED this 25* day of September, 2G12.

\k J, Martone United States District Jndge

No. 13-

IN THE


SCOTT HUMINSKI, Petitioner,

V.

MERCY GILBERT M E D I C A L CENTER, DIGNITY H E A L T H ,

Respondents.

On Petition for a Writ of Cert iorar i to the United States Court of Appeals for

the Ninth C ircu i t

M O T I O N F O R S U M M A R Y R E V E R S A L

Scott Huminski 24544 Kingfish Street Bonita Springs, FL 34134 (239) 300-6656 s_humiaski@live. com

Petitioner

M O T I O N F O R S U M M A R Y R E V E R S A L This appeal concerns denial o f a prelmiinary injunction

against torture. The text o f the order is as follows:

"7/ is ORDERED DENYING plaintiff's Motions for preliminary injunction, certification and recusal for the reasons stated in our order of September 13, 2012. (Doc. 27).

We again urge plaintiff to seek the advice of a lawyer.''^ Thus, prelimiaary injunction was denied for the reasons

set forth i n the order o f September 13, 2012 which is attached hereto as Exhibi t " A " (the "Order").

The Order does not rule on injunctive rel ief and cannot be relied upon to grant or deny injunctive re l ie f

The Order does not set forth the legal standard for grant or denial o f injunctive rel ief or discuss the propriety o f injunctive re l ief i n the circumstances o f this case.

The Order has no relationship i n fact or law to the request for injunctive re l ie f The undisputed sworn record details that the petitioner was subjected to torture by the defendants and the injunction was not opposed by defendants. The District Court alone opposed an injunction.

I n summation, these proceedings were infected by a major clerical error that has created orders completely divorced from the facts o f the case whereby the Court relied on an earlier order that had nothing to do w i t h injunctive re l ief as authority used to decide injunctive relief.

The foregoing errors are the results warned o f i n Huminski v. Lavoie, 173 V t 517, 519-20, 787 A . 2 d 489, 492-93 (2001) that was rejected by the N i n t h Circuit and is central to the petition this matter. Had the parties been allowed to complete the motion pleading cycle concerning the injunction, which was short-circuited hy a sua sponte order, this case may have progressed i n a more logical and orderly manner, flrrthered public policy, enhanced judic ia l economy and firrthered the interests o f justice.

W H E R E F O R E , this case should be reversed and remanded w i t h instructions for clarification o f the fact and law.

Respectfully submitted.

January 30, 2013

Scott Hurodnski 24544 Kingfish Street Bonita Springs, FL 34134

wo \ I

Scott Huminski,

Plaintiff,

vs.

I N THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CV 12-01437-PHX-FJM

O R D E R

Mercy Gilbert Medical Center; Dignity! Heal l i ; Tim Bricker; Gregory Berman;1 Gaiy Petersen; Jon Stevenson; Six) Unnamed Employees of Mercy Gilbert) Hospital/Digmty Health; Town of Gilbert;) Tim Dom; Debra Hartin; Lloyd H . Dean,)

Defendants.

The court has before i t defendants Mercy Gilbert Medical Center and Dignity Health's

("defendants") motion to dismiss for lack of jurisdiction (doc. 7), plaintiffs motion to strike

or alternatively response to the motion to dismiss (doc. 8) and defendants' reply (doc. 14).

Next, we have plaintiffs motion to clarify jurisdiction over the parties (doc. 9), and

defendants' response (doc. 13). Plaintiff did not reply, and the time for replying has expired.

We also have plaintiffs motion for oral argument and motion for hearing or conference

setting a discovery schedule (doc. 11) and defendants' response (doc. 12). Plaintiff did not

reply, and the time for replying has expired. Next, we have two motions filed by plaintiff for

a declaratory judgment and speedy hearing, along with a motion to consolidate the

declai-atory judgment motions (docs. 16, 19), plaintiffs supplement regardhig ethics

violations (doc. 20), and defendants' responses to bothimotions (docs. 22,23). We also have

plaintiffs motion for leave to amend the complaint (doc. 18), defendants' response (doc. 24),

and plaintiffs consoHdated reply to his motions for declaratory judgment and motion to

amend the complaint (doc. 25). Finally, we have plaintiffs motion to compel and motion for

electronic filing (doc. 21), which is not folly briefed.

I

This action arises from plaintiffs May 30,2012 visit to Mercy Gilbert Medical Center.

Plaintiff filed this action on July 3, 2012 and amended his complaint on July 16,2012 (doc.

6). He alleges in the furst amended complaint ("FAG") that he refiised treatment at Mercy

Gilbert and was then violently attacked by staff, drugged without his consent, and was tied

to a table. Plaintiff alleges that defendants conspired to cover-up what he characterizes as

his attempted murder, kidnapping, and torture. The FAC asserts eight counts: (1) attempted

murder, assault, and battery; (2) kidnapping and unlawful imprisonment; (3) torture and

intentional infliction of emotional distress; (4) malpractice, negligence, and gross negUgence;

(5) "federal and state constitutional torts, 42 U.S.C. 1983 [sic] claims"; (6) consphacy; (7)

declaratory relief; (8) injunctive relief. Compl. at 7-9.

There is no indication fhat any defendants have been properly served. Defendants

Mercy Gilbert and Dignity Health are the only appearing defendants to date.

11

In plaintiffs motion to clarify jurisdiction over the parties, he questions the propriety

of the motion to dismiss, because it was filed by defendants before they were served. A party

can waive service by voluntarily appearing in an action. And Rule 12(b)(1), Fed. R. Civ. P.

expressly permits a defendant to move to dismiss an action for lack of subject-matter

jurisdiction. Plaintiffs motions to clarify jurisdiction and strike defendants' motion to

dismiss are denied.

Defendants move to dismiss for lack of jurisdiction. They argue that diversity

jurisdiction does not exist because there is not complete diversity between the parties. But

- 2 -

plaintiff has asserted claims under 42 U.S.C. § 1983, a federal statute.^ We have subject-

matter jurisdiction to hear § 1983 claims under 28 U.S.C. § 1331, and have supplemental

jurisdiction to hear related state law claims under 28 U.S.C. § 1367. Defendants' motion to

dismiss for lack of jurisdiction is denied.

As we have decided fhe motion on the papers, plaintiffs request for oral argument is

denied. In the same filing, plaintiff moves for a hearing to set a discovery schedule. There

is no indication, however, that plaintiff has served the remaining defendants in this case.

Only the moving defendants have appeared. Setting a discovery schedule now, when

additional defendants have not yet been served, would be judicially uiefficient and could

prejudice later-appearing defendants. Plaintiffs motion for a hearing to set a discovery

schedule is denied.

n i Plaintiff has filed two motions for declaratory judgment. In the first, he moves for the

court to enter a declaratory judgment "stating that [plaintiffs] objection to and non-consent

to involuntary and violent exposure to x-rays by the Mercy Gilbert Medical Center and then-

agents and employees constitutes the torts of assault and battery and violates [plaintiffs]

rights, privileges and irmnunities as secured under the United States Constitution" (doc. 16

at 1). In the second, he moves for a declaratory judgment stating that "fhe filing of fhe

Motion to Dismiss by the Defendants constitutes abuse of process, frivolous litigation,

vexatious litigation and violates the A B A Model Rules of Professional Conduct" (doc. 19 at

1). Plaintiff moves as part of his second motion to consohdate the declaratory judgment

motions. He also moves for a speedy hearing. Moreover, plaintiff filed a supplement

detailing actions of defense counsel that he believes to be ethics violations.

A motion cannot be made, however, for declaratory relief. Instead, an action for

declaratory judgment must be brought. Kam-Ko Bio-Pharm Trading Co.. Ltd. - Austialasia

^ Defendants have not moved to dismiss the FAC for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. Accordingly, we express no opinion in this order as to whether plaintiff has plausibly stated any claims for relief.

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V . Mavne Phaima (USA) Inc.. 560 F.3d 935, 943 (9th Cir. 2009). Plaintiffs motions for

declaratory judgment are not contemplated by the Federal Rules of Civil Procedure, and are

denied on that basis.^

I V

Plaintiff moves to amend his complaint a second time. Although his proposed second

amended complaint ("SAC") does not indicate how it differs from the FAC as requhed by

LRCiv 15.1, it appears that plaintiff seeks to add some additional facts, seeks to add defense

counsel as defendants, and seeks to add an additional count titled "Abuse of process,

harassment in filing frivolous and vexatious court papers." Proposed SAC 56-57 (doc.

18).

Although Rule 15(a)(2), Fed. R. Civ. P. directs the court to grant leave to amend

freely, we need not allow amendment when it would be futile. AmeiisourceBergen Corp. v.

Dialysist W.. Inc.. 465 F.3d 946, 951 (9th Cir. 2006). To prevail on an abuse of process

claim, plaintiff must show "(1) a willful act in the use of judicial process; (2) for an ulterior

purpose not proper in the regular conduct of the proceedings." Crackel v. Allstate Ins. Co..

208 Ariz. 252,257,92 P.3d 882, 887 (Ct. App. 2004) (citation omitted). Plaintiff must show

"more than mere speculation to support the asseilion that the defendant has used court

processes with an improper intent." I d at 259, 92 P.3d at 889. Moreover, to establish the

existence of an improper motive that primarily motivated the challenged conduct, plaintiff

"must establish that the defendant used a court process in a fashion inconsistent with

legitimate litigation goals." Id.

Plaintiffs conclusoiy allegations in the proposed abuse of process claim fall far short.

He bases this claim solely on the filing of a motion to dismiss for lack of jurisdiction by these

defendants. But the filing of such a motion is expressly permitted by the Federal Rules of

Civil Procedure. See Fed. R. Civ. P. 12(b)(1). A dismissal based on lack of subject-matter

^ Both plaintiffs FAC and his proposed second amended complaint include a request for declaratory relief. This does not, however, authorize him to file separate motions for declaratory judgment.

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jurisdiction can occur at anytime during fhe litigation, including on the court's own initiative.

See Fed. R. Civ. P. 12(h.)(3). Thus, plaintiff has not asserted facts that would plausibly

suggest that defendants "used a court process in a fashion inconsistent with legitimate

litigation goals" merely by filing a timely motion expressly permitted by the Federal Rules

of Civil Procedure, even i f the motion is ultimately denied. See Crackel. 208 Ariz, at 259,

92 P.3d at 889. Because plaintiffs proposed claim for abuse of process would be subject to

dismissal as drafted, it is futile. Accordingly, plaintiffs motion to amend the complaint is

denied.

V

Finally, we address plaintiffs motion to compel and request for electroiuc filing.

Despite our July 10, 2012 order notifying plaintiff that the Federal Rules prohibit a party

from seeking discovery prior to conferral by fhe parties, unless authorized by another rule,

court order, or stipulation, see Order (doc. 5 at 1), plaintiff filed "notices" of renewed

discovery demands on July 27, 2012 (doc. 10) and August 14, 2012 (doc. 15). Also on

August 14, 2012, plaintiff served requests for interrogatories and requests for production

(doc. 17). Plaintiff now moves for an order compelling Mercy Gilbert and Dignity Health

to comply.

As we have aheady explained to plaintiff, discovery has not yet commenced in this

action. Plaintiff has yet to serve several defendants, a Rule 16 scheduling conference has not

been held, there is no indication plaintiff and the appearing defendants have held their Rule

26(f), Fed. R. Civ. P. conference, and there has been no order from tins court authorizing

plaintiff to proceed with discovery. Plaintiffs motion to compel is denied.

A review of the docket reveals that in the short time since filing this action, plaintiff

has aheady filed seven motions and several "notices" of discovery demands, many of which

were procedurally improper. Permitting plaintiff to file electronically w i l l only compound

the problem.

VI

- 5 -

I T IS O R D E R E D DENYLNG defendants' motion to dismiss for lack of jurisdiction

(doc. 7). I T IS O R D E R E D D E N Y I N G plaintiffs motion to strike defendants' motion to

dismiss (doc. 8). I T IS O R D E R E D D E N Y I N G plaintiffs motion to clarify jurisdiction over

the parties (doc. 9). I T IS O R D E R E D D E N Y I N G plamtiffs motion for hearmg or

conference re: discovery (doc. 11). I T IS O R D E R E D D E N Y I N G plaintiffs motion for

declaratory judgment (doc. 16). I T IS O R D E R E D D E N Y I N G plaintiffs motion to amend

the complaint (doc. 18). I T IS O R D E R E D D E N Y I N G plamtiffs second motion for

declaratory judgment (doc. 19). Fmally, I T IS O R D E R E D D E N Y I N G plamtiffs motion

to compel and motion for electronic filing (doc. 21).

Plaintiff is once again strongly urged to consult a lawyer. Plaintiff is reminded that

despite his pro se status, he is bound to follow all federal and local rales of civil procedure.

See Ghazali v. Moran. 46 F.3d 52, 54 (9th Ch. 1995). Plaintiff is also remuided of fhe

admoiutions contained in Judge Campbell's order of May 29,2012 in Huminski v. Heredia.

No. CV 11-00896-PHX-DGC.

DATED this 13* day of September, 2012.

Frederick J. Martone United States District Judge

- 6 -

No. 13-

I N T H E


SCOTT H U M I N S K I , Petitioner,

V .

M E R C Y G I L B E R T M E D I C A L C E N T E R , D I G N I T Y H E A L T H ,

Respondents.

On Petition for a Writ of Cert iorar i to the United States Court of Appeals for

the Ninth Circu i t

M O T I O N F O R S U M M A R Y R E M A N D

Scott Hinxdnski 24544 Kingfish Street Bonita Springs, FL 34134 (239)300-6656 s_hum.inski@live. com

Petitioner

M O T I O N F O R S U M M A R Y R E M A N D As an init ial matter the petitioner notes the pendency o f

his concmrently filed motion for summary reversal based upon the rudimentary fact the District Court cited its own order that did not decide a preliminary iajunction as the sole basis for denial o f the injunction against torture that initiated the interlocutory appeal i n this matter.

The petitioner filed a motion for clarification prior to fUing his motion for rehearing i n this case entitied, Mot ion To Clarify L a w for W r i t o f Certiorari filed on November 13, 2012 in the Nin th Circuit, a day prior to the f i l ing o f motion for panel rehearing. The clarification motion was sumomarily denied leaving an exceedingly vague record as to the fact and law o f this case that burdens a meaningfrd review by this honorable Court. The Courts below have the duty to provide a meaningfiil record o f fact and law for potential certiorari. This burden should not be placed post hoc upon the Supreme Court.

As this case creates a dispute over the law between an en banc State Supreme Court and a federal circuit concerning Huminski y. Lavoie, 173 V t . 517, 519-20, 787 A . 2 d 489, 492-93 (2001), a complete non-ambiguous and clear record is essential. Attached hereto as Exhibit " A " is a true and correct copy o f the opening br ie f i n the Nin th Circuit exhibiting the disconnect and vagueness between the b r ie f and the opioion i n this matter.

The entire text o f the N in th Circuit opinion is: "The Clerk shall filed the opening br ie f submitted on October 29, 2012.A review o f the record and the opening br ie f indicates that the questions raised i n this appeal are so insubstantial as not to require firrther argument See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).

Accordingly, we summarily affirm the district court's order denying preliminary injunctive relief."

W H E R E F O R E , this case should be remanded w i t h instructions to clarify the fact and law to al low a meaningfiil petition for certiorari. The Nin th Circuit record stands incomplete without clarification which may be due to a clerical error that can be rectified on remand without firrther action or burden upon this Court.

-^cott Huminski 24544 Kingfish Street Bonita Springs, FL 34134

January 30, 2013


In The

United States Court of Appeals for the Ninth Circuit

SCOTT HUMINSKI, PLAINTIFF - APPELLANT,

V. Docket No. 12-17225

MERCY GILBERT MEDICAL CENTER, DIGNITY HEALTH, ETAL.. DEFENDANTS -

APPELLEES.

OPENING B R I E F

Initially, Appellant notes this proposed brief is lodged notwithstanding the

pending motion to appoint counsel (staying this matter under local Rule 27-11 (a)(6)).

This matter is before this Court for review of denial of a preliminary injimction

under 28 U.S.C. § 1292(a)(1) seeking to enjoin further First Amendment retaliatory

violence and vexatious litigation targeting Scott Huminski.

This case sets forth a pohcy and governmental retaliation (via private

corporations) against protected speech requiring a strict scrutiny de novo review

identical to HuminsM's collateral case pending i n this Court, Huminski v. City of

Surpise. 12-16395. See Berger v. City of Seattle. 569 F.3d 1029,1050 (9th Cir, 2009) (en

banc).

A l l fact and law proffered by the Plaintiff/Appellant, Scott Huminski

("HuminsM"), i n the Court below stand undisputed and unchallenged on the record

because the trial Court, in the order on appeal, argued on behalf of the defendants and

simultaneously ruled on the prehminary injunctions; (1) prior to response by the

defendants, (2) without allowing a reply by Scott Huminski and (3) without

consideration of the legal standard/test concerning injunctive rehef.

Huminski also sought and was denied, i n the order on appeal, an injunction

forbidding frivolous and vexatious filings i n the case such as the Motion to Dismiss filed

~ 1 ~

Case: 12-17225 10/29/2012 10:8378934 DktEntry: 27 Page: 2 of 3

by the defendants fervently arguing that federal question jurisdiction cases also required

complete diversity of the parties. This denial is also appealed.

The motion for preliminary injunction(s) was filed on September 21. 2012 and

fhe order denying the motion was issued six days later on September 27, 2012 without

allowing the Defendants time set forth i n the Federal Rules to respond and without

allowing HuminsM an opportunity to reply to the argument proffered by the tr ial Court

on behalf of the defendants.

HuminsM relies on his case that was heard by the full Vermont Supreme Court

(and authority cited therein) that condemned sua sponte arguments proffered by trial

courts in rulings without giving the parties notice. HuminsM v. Lavoie, 173 Vt. 517, (Vt.

Supr. Ct. 2001, No. 99-330). The trial Court's conduct i n the instant matter exceeds the

conduct condemned by the Vermont Supreme Court as the parties were, at least,

allowed to participate in the motion pleading cycle in the Vermont case. Here, the

District Court issued a sua sponte order and argument without allowing a response and

a reply, eviscerating and short-circuiting the federal Rules and Due Process.

HuminsM's injunctive requests easily satisfy the legal standard for preliminary

injunctions, law which was not considered by the tr ial court. See Alliance for the Wi ld

RocMes V . Cottrell, 632 F.3d 1127 (9th Cir. 2011) (discussing 4 element test) Enjoining

further violence and vexatious filings are patently per se worthy of injunctive relief and

require no further argument here.

W H E R E F O R E , the order of the trial court should be reversed and remanded with

instructions to grant the prehminary injunctions forbidding further violence against

HuminsM and vexatious court fihngs.

~ i i ~


Dated at Estero, Florida this 29*11 day of October, 2012.

/s/ Scott HuminsM

Scott HuminsM

P.O. Box 10224

Naples, FL 34101

C E R T I F I C A T E O F S E R V I C E

I hereby certify that on this 2.^^ day of October 2012, copies of this

paper were served upon parties of record. /s/ Scott HuminsM

Scott HuminsM

~ i i i ~

catholic church supreme court torture case

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