Name
Address
Phone Number

Plaintiff in Pro Per
 
 

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA





ANGELA BERNHARDT,                   Case No. CV 99-10121-JSL (Mc)

Plaintiff

                                                          COMPLAINT FOR VIOLATION
                                                                          OF CIVIL RIGHTS
                                                    (42 U.S.C. Section 1983)

                                                             (DEMAND FOR JURY TRIAL)
 

v.

COUNTY OF LOS ANGELES, and
LLOYD W. PELLMAN, individually and
in his official capacity,

Defendants.
__________________________________
 
 

Plaintiff alleges the following upon information and belief, excepting paragraphs 5, 7, 56 through 63, 65 and 66 which are alleged upon personal knowledge.

PREAMBLE

  1. This action arises under 42 U.S.C. Section 1983, 42 U.S.C. Section 1988, 28 U.S.C. Section 2201, and the U.S. Constitution. This Court has jurisdiction under 28 U.S.C. Sections 1331, and 1343(a)(4).
  2. Venue is proper in the Central District of California because all parties reside therein and because the acts and practices complained of occurred in said district.
  3. The County of Los Angeles is a public entity, organized and incorporated under the laws of the State of California.
  4. Lloyd W. Pellman ("Pellman") is a member of the State Bar of California and is County Counsel for the County of Los Angeles. He is sued in his official and individual capacities. At all times herein mentioned, Pellman was acting pursuant to or under color of law.
  5. In October 1998, Los Angeles County deputy sheriffs, acting in uniform, on-duty, and under color of law, used excessive force on plaintiff, giving plaintiff a cause of action against them under 42 U.S.C. Section 1983.
  6. Plaintiff has the federal Constitutional right under the Due Process Clause of obtaining adequate, effective and meaningful access to the courts(1) to seek redress for violation of her civil rights.
  7. Plaintiff could not afford to hire legal counsel on an hourly basis.


    8. FIRST CAUSE OF ACTION FOR DECLARATORY

    RELIEF THAT SETTLEMENT POLICY VIOLATES

    FEDERAL STATUTE

  8. Plaintiff restates and reiterates all of the foregoing paragraphs of this complaint as if set forth in full at this point.
  9. Defendant County settles all civil rights lawsuits brought against the County, whether pretrial, during trial, pending appeal, pending cert petition or otherwise (excepting only a few cases where defendant prevail by verdict or appeal).
  10. In the past ten years, only 2% of all civil rights cases filed in the Central District of California were resolved by verdict.
  11. No prevailing civil rights plaintiff in the past 25 years has been required to execute on County property in order to satisfy a judgment against the County; the County has settled instead.
  12. In 1976, Congress amended 42 U.S.C. Section 1988 ("Fees Act") to provide that the prevailing party in a federal civil rights action could recover attorney's fees.
  13. By enacting 42 U.S.C. Section 1988, Congress intended to provide victims of civil rights abuse such as plaintiff with a means for obtaining adequate, effective and meaningful access to the courts by enabling such victims to obtain a lawyer to represent them.
  14. By enacting 42 U.S.C. Section 1988, Congress recognized that pro se access to the courts was not adequate, effective, or meaningful access to the courts.
  15. A prevailing civil rights plaintiff "should ordinarily recover an attorney's fee award unless special circumstances would render such an award unjust."(2)
  16. Settlement in not such a special circumstance.(3)
  17. The Senate Report on the Bill states:

    18. "[F]or purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent decree or without formally obtaining relief..." S. Rep. No. 94-1011, p. 5 (1976) cited in Maher, infra.
  18. Congress passed the Fees Act because it was acutely aware that "civil rights litigants were suffering very severe hardships because of the Alyeska(4)decision."(5) Congress was aware that because of Alyeska, "private lawyers were refusing to take certain types of civil rights cases because the civil rights bar, already short of resources, could not afford to do so."(6)
  19. Congress enacted the Amendment "[b]ecause a vast majority of the victims of civil rights violations cannot afford legal counsel . . . [and therefore] are unable to present their cases to the courts."(7)
  20. By enacting Section 1988, Congress intended "to give such persons effective access to the judicial process where their grievances can be resolved according to law."(8)
  21. "The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens. Although some agencies of the United States have civil rights responsibilities, their authority and resources are limited."(9)
  22. "The application of these standards will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys. The effect of [the Fees Act] will be to promote the enforcement of the Federal civil rights acts, as Congress intended, and to achieve uniformity in those statutes and justice for all citizens."(10)
  23. "The purpose and effect of [the Fees Act] are simple - it is designed to allow courts to provide the familiar remedy of counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866 . . . . All of these civil rights laws depend on private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain."(11)
  24. "If our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee-shifting in these cases."(12)
  25. Senator Tunney, a sponsor of the Fees Act, stated to the Senate:

    26. "The problem of unequal access to the courts in order to vindicate congressional policies and enforce the law is not simply a problem for lawyers and courts. Encouraging adequate representation is essential if the laws of this Nation are to be enforced. Congress passes a great deal of lofty legislation promising equal rights to all. Although some of these laws can be enforced by the Justice Department or other Federal agencies, most of the responsibility for enforcement has to rest upon private citizens, who must go to court to prove a violation of the law . . . . But without the availability of counsel fees, these rights exist only on paper. Private citizens must be given not only the rights to go to court, but also the legal resources. If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers."(13)
  26. Senator Kennedy, another sponsor, stated:

    27. "Long experience has demonstrated . . . that Government enforcement alone cannot accomplish [compliance with the civil rights laws]. Private enforcement of these laws by those most directly affected must continue to receive full congressional support. Fee shifting provides a mechanism which can give full effect to our civil rights laws, at no added cost to the Government." (14)
  27. "Congress has recognized that civil rights legislation can be effective only if the victims of civil rights abuses are able to attract attorneys to litigate their claims."(15)
  28. By virtue of 42 U.S.C. Section 1988, plaintiff had the implied federal statutory right to contract with an attorney as follows: that plaintiff could transfer to the attorney enforceable rights under Section 1988 to apply for -- or waive -- statutory attorney's fees in exchange for the attorney agreeing to represent plaintiff.
  29. "[I]t is the party's right to waive, settle, or negotiate [the right to receive statutory fees]"(16)
  30. "[T]he language of the Act, as well as the legislative history, indicates that Congress bestowed on the 'prevailing party' (generally plaintiffs) a statutory eligibility for a discretionary award of attorney's fees in specified civil rights actions. It did not prevent the party from waiving this eligibility anymore than it legislated against assignment of this right to an attorney . . . ."(17)
  31. Unless plaintiff had the ability to transfer enforceable rights to an attorney, the rights were valueless to her: a pro se plaintiff who prevails is not entitled to statutory attorney's fees.(18)
  32. Since in or about 1978 it has been the official custom, practice and policy ("policy") of defendant County to offer or accept settlements in federal civil rights cases only on a "lump sum, including all attorney's fees" basis.
  33. The policy also requires attorneys for civil rights plaintiffs to agree to the settlements and to deliver a dismissal with prejudice, signed by the attorney, of the entire action in exchange for the settlement proceeds.
  34. A portion of the County's policy is set forth in the March 3, 1998 letter of County Counsel attached hereto, marked Exhibit C-3, and incorporated herein by reference.
  35. The foregoing settlement policy is an official or unofficial policy of the County which is enforced as such. Enforcement is not hypothetical, speculative, or "merely possible."
  36. County Counsel was and is responsible for creating and enforcing the County's policy.
  37. The County Board of Supervisors, the governing body for the County, has never authorized County Counsel to create or enforce the policy, but is fully aware that County Counsel created and enforces it.
  38. The settlement policy is not public information, but is instead a secret policy which is only becoming known to civil rights lawyers through its enforcement.
  39. When defendants make a "lump sum, including all attorney's fees" settlement offer, which lump sum amount clients want to accept, civil rights lawyers are inevitably faced with a severe conflict-of-interest.
  40. The lawyer, as a condition of representation, has contracted for and is the owner of the right to apply for and receive statutory fees.
  41. If the client accepts the lump sum offer, the lawyer will be required to sign and deliver a dismissal with prejudice of the entire action which will obliterate the lawyer's right to apply for and receive an award of statutory fees.
  42. It is solely the client's decision whether or not to settle an action; it is not for the attorney to decide.
  43. Plaintiff understands that it is 98% certain that she will be presented with or have the opportunity to make a settlement offer which is "lump sum including all attorney's fees." At that point, plaintiff understands that it is her decision whether or not to decide to settle the action. It is not for her attorney to decide or delay.
  44. Plaintiff understands and knows that in California, it would be a crime for a lawyer to refuse to agree to such a settlement because of lack of the attorney's ability to apply for attorney's fees.
  45. Plaintiff understands and knows that California Business & Professions Code Section 6128(b) provides "Every attorney is guilty of a misdemeanor who ... [w]illfully delays his client's suit with a view to his own gain."
  46. Plaintiff also understands and knows that should she express to her lawyer a desire to settle for a sum certain, the lawyer knows defendants will not agree to the settlement unless the "sum certain" includes all attorney's fees. Thus the lawyer would be forced to make the offer "lump sum, including all attorney's fees."
  47. It would be unfair to plaintiff if her lawyer could require her to reject a reasonable "lump sum including all attorney's fees" on the grounds that it unlawfully included statutory attorney's fees. That could unnecessarily force plaintiff to undergo the risk of trial rather than achieving a reasonable settlement.
  48. Defendant's policy is the equivalent of requiring a waiver of plaintiff's, or her lawyer's, right to apply under 42 U.S.C. Section 1988 for statutory attorney fees.
  49. This policy is the equivalent of requiring plaintiff to stipulate that she is not a "prevailing party" for purposes of Section 1988 as a condition of settlement.
  50. The County policy is the equivalent of the County of Los Angeles passing an ordinance that states that 42 U.S.C. Section 1988 shall not apply to federal civil rights lawsuits brought against the County or its sheriffs deputies.
  51. The County does not have the power to pass an ordinance declaring that a federal law shall not apply to lawsuits brought against the County.
  52. Article VI of the Constitution of the United States provides, in relevant part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
  53. 42 U.S.C. Section 1988, as interpreted by the U.S. Supreme Court, is the Supreme Law of the Land.
  54. As a direct result of the foregoing, civil rights lawyers have, in the past 17 years, been deprived of in excess of millions of dollars in statutory attorney's fees by virtue of fee-waiver settlements. Plaintiff requests the court to take judicial notice of the papers and pleadings on file in Mitchell v. County of Los Angeles, et al., USDC Central District of California No. CV 98-8712-R; Ninth Circuit Court of Appeals Docket No. 99-55834.
  55. As a direct result of the "lump sum" settlement policy, plaintiff has been unable to obtain a civil rights lawyer to represent plaintiff.
  56. On or about October 12, 1998, plaintiff sought unsuccessfully to retain attorney Steven C. Ameche to represent her.
  57. In October 1998, plaintiff also sought unsuccessfully to retain the law firm of Yagman and Yagman to represent her..
  58. In or about November 1988, plaintiff also sought unsuccessfully to retain the law firm of Schonbrun & De Simone LLP to represent her, but the firm stated "The fact that this office cannot undertake your representation does not in any way reflect a conclusion that your case is without merit."
  59. In or about December 1998, plaintiff also sought unsuccessfully to retain the law firm of Hadsell & Stormer to represent her, but the firm stated " …this does not mean you may not have meritorious claims against…[Santa Monica College and the County Of Los Angeles]"
  60. In or about January 1999, plaintiff also sought unsuccessfully to retain attorney the Law Firm of Gary S. Casselman to represent her, but the Mr. Casselman stated "The report you have prepared appears to support your Claim for Violation of Civil Rights, although I don't believe I will become involved in this."
  61. In December, 1998, plaintiff also sought unsuccessfully to retain the Law Offices of Johnnie L. Cochran, Jr. to represent her, and attorney Larry Atkins of that firm told plaintiff that the firm would only represent her if she was dead or nearly dead.
  62. Plaintiff also sought unsuccessfully to retain attorney Michael R. Mitchell to represent her. Mitchell expressly told plaintiff that he was precluded from representing plaintiff solely because of Los Angeles County's "lump sum" settlement policy.
  63. 29. Mitchell referred plaintiff to his effort to change that policy, Mitchell v. County of Los Angeles, et al., supra.
  64. But for defendants' "lump sum" settlement policy, one or more of the foregoing lawyers would have undertaken to represent plaintiff.
  65. Plaintiff is not a lawyer and has no training as a lawyer. Notwithstanding, plaintiff did seek to draft and did file a lawsuit in pro per in this court styled Bernhardt v. County of Los Angeles, et al, CV 99-2598-JSL. Plaintiff sought diligently to read and review and understand the Federal Rules of Civil Procedure, the Local Rules of this Court, and the statutes and case law applicable to her case. But, as a direct result of not being represented by a lawyer, that effort failed and plaintiff's merits case was dismissed.
  66. Plaintiff filed a timely notice of appeal and now desperately needs a lawyer to represent her in that appeal to try to salvage the merits case.
  67. Plaintiff desires to retain a civil rights lawyer to represent plaintiff but plaintiff is precluded from doing so because of defendants' "lump sum" settlement policy.
  68. Defendants creation and enforcement of the "lump sum" settlement policy has deprived plaintiff, under color of law, of her implied federal statutory right under 42 U.S.C. Section 1988, to contract with an attorney as follows: that plaintiff transfers to the attorney enforceable rights under Section 1988 to apply for -- or waive -- statutory attorney's fees in exchange for the attorney agreeing to represent plaintiff.
  69. An actual controversy under 28 U.S.C. Section 2201 exists between plaintiff and defendants in that:

    70. (a) defendants claim that their "lump sum" settlement policy does not deprive plaintiff of the implied federal statutory right under 42 U.S.C. Section 1988 to transfer to an attorney enforceable rights, contingent upon prevailing by settlement or otherwise, to apply for -- or waive - statutory attorney's fee, which federal statutory right is accorded priority by and secured by Article VI of the Constitution ,

    but

    (b) plaintiff claims that defendants' "lump sum" settlement policy does deprive plaintiff of the implied federal statutory right under 42 U.S.C. Section 1988 to transfer to an attorney enforceable rights, contingent upon prevailing by settlement or otherwise, to apply for -- or waive - statutory attorney's fee, which federal statutory right is accorded priority by and secured by Article VI of the Constitution, and precluding plaintiff from obtaining a lawyer to represent plaintiff as a victim of civil rights abuse, and preventing plaintiff from acting as "private attorney general" to enforce federal civil rights laws.

  70. Wherefore plaintiff prays for a judgment declaring that defendants' policy of offering or accepting only "lump sum including all attorney's fees" upon settlement violates Article VI of the Constitution by repealing 42 U.S.C. Section 1988.
  71. Such a judgment will enable plaintiff to obtain a lawyer to represent her to vindicate the violation of her civil rights.


    72. SECOND CAUSE OF ACTION FOR INJUNCTIVE RELIEF

    AGAINST ALL DEFENDANTS

  72. Plaintiff restates and reiterates all of the foregoing paragraphs of this complaint as if set forth in full at this point.
  73. Plaintiff has no adequate remedy at law because plaintiff cannot obtain a lawyer to represent plaintiff in court, either in the appeal of the underlying merits case or this case.
  74. Unless equitable relief is granted, plaintiff will suffer irreparable injury in that plaintiff will be denied adequate, meaningful, and effective access to the courts to vindicate violations of civil rights.
  75. For the foregoing reasons, plaintiff is entitled to and hereby moves the Court for a temporary restraining order, preliminary and permanent injunction ordering that defendant County, its officers, agents, servants, employees, and attorneys, and any attorneys who contract with the County of Los Angeles to perform legal services, and persons in active concert or participation with them, are enjoined and prohibited from offering, accepting, or entering into any agreement settling merits claims in civil rights cases that interferes with lawyers applying for attorney's fees under 42 U.S.C. Section 1988 (or any similar statute), including but not limited to "lump sum including all attorney's fees" settlements.
  76. If relief is granted, plaintiff will be able to obtain an attorney to represent her.


    77. THIRD CAUSE OF ACTION

  77. Plaintiff restates and reiterates all of the foregoing paragraphs of this complaint as if set forth in full at this point.
  78. 42 U.S.C. Section 1988 guaranteed plaintiff the right to offer to an attorney the enforceable right to apply for statutory attorney's fees in exchange for representation.
  79. Defendants' "lump sum" settlement policy renders unenforceable any right to apply for statutory attorney's fees.
  80. Defendants, under color of law - to wit, the "lump sum settlement policy" - deprived plaintiff of the implied federal statutory right under 42 U.S.C. Section 1988 to transfer to an attorney the enforceable right to apply for statutory attorney's fees in exchange for representation, in violation of 42 U.S.C. Section 1983.
  81. As a legal result of the foregoing, plaintiff was injured and damaged in an amount according to proof at trial.
  82. Defendant Pellman, in enforcing the policy, acted with reckless and callous indifference to the federally protected rights of others, trampling upon plaintiff's rights to accomplish his own aims, to wit "certainty as to County liability upon settlement," and "to protect County taxpayers" from being required to pay attorney's fees upon settlement, entitling plaintiff to punitive damages according to proof at trial.


WHEREFORE, plaintiff prays for judgment against defendants, and each of them, jointly and severally as follows:

1. A judgment declaring that defendants' policy of offering or accepting only "lump sum including all attorney's fees" upon settlement violates Article VI of the Constitution by repealing 42 U.S.C. Section 1988.

2. A temporary restraining order, preliminary and permanent injunction ordering that defendant County, its officers, agents, servants, employees, and attorneys, and any attorneys who contract with the County of Los Angeles to perform legal services, and persons in active concert or participation with them, are enjoined and prohibited from offering, accepting, or entering into any agreement settling merits claims in civil rights cases that interferes with lawyers applying for attorney's fees under 42 U.S.C. Section 1988 (or any similar statute), including but not limited to "lump sum including all attorney's fees" settlements.

3. For general and special damages according to proof at trial.

4. For punitive damages against all individual defendants (but not defendant County of Los Angeles) according to proof at trial.

5. For such other and further relief as the court deems just and proper.

__________________________

ANGELA BERNHARDT

Plaintiff in Pro Per
 
 
 

VERIFICATION
 

I, the undersigned, am the plaintiff in the above entitled action. I have read the foregoing complaint. As to the matters asserted therein upon my personal knowledge, I know them to be true. As to the matters asserted therein upon my information and belief, I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct and that this declaration is executed at _____________, California on ____________, 1999.
 

_____________________________

ANGELA BERNHARDT
 
 




DEMAND FOR JURY TRIAL





Plaintiff demands trial by jury of all issues properly triable by a jury.
 
 
 

_____________________________

ANGELA BERNHARDT

Plaintiff
 
 
 
 
 
 
 
 
 

1. Bounds v. Smith, 430 U.S. 817, 822 (1977); Wolff v. McDonnell, 418 U.S. 539, 580 (1974) ("The right of access to the courts . . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.")

2. Smith v. Robinson, 468 U.S. 992 (1984); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

3. Maher v. Gagne, 448 U.S. 122, 126 n8, 128 n10, 129, 131 (1980); See also, Hanarhan v. Hampton, 446 U.S. 754, 756-58 (1980)

4. Alyeska Pipeline v. Wilderness Soc'y, 421 U.S. 240 (1975)

5. H.R. Rep. No. 1558, 94th Cong., 2d Sess. 2 (1976) ("H.R.")

6. Id. at 3

7. Id. at 1.

8. Id.

9. Id. at 1

10. H.R. at 9

11. S.R. at 2

12. Id. at 6

13. 122 Cong. Rec. 33313 (1976)

14. Id. at 31472

15. Venegas v. Mitchell, 867 F.2d 527, 532 (9th Cir., 1989)

16. Venegas v. Mitchell, 495 U.S. 82, 109 L.Ed.2d 74, 83, 110 S.Ct. 1679, 1683 (1990)

17. Evans v. Jeff D., 475 U.S. 717, 728, 106 S.Ct. 2909, 89 L.Ed.2d 747 (1986)

18. Kay v. Ehrler, 449 U.S. 432 (1991)

19. Toussaint v. McCarthy, 926 F.2d 800 (9th Cir., 1990)