Professional Documents
Culture Documents
CASE: 06-CV-1428-MOORE
JENEAN MCBREARTY
Defendants
FACTS
January 23, 2006, and began receiving $753.00 in Social Security Disability benefits in
October, 2007. Disabilities include difficulty in walking, standing, and sitting because of
a leg/foot injury sustained in October 2005, foot-drop, high blood pressure, degenerative
spinal/disc disease, Meniere’s Syndrome, and arthritis. She is unable to stand or sit for
long periods of time, and experiences dizziness, confusion, blurred vision, falling and
water.
On May 10, 2006, Plaintiff filed a pro se law suit against South Florida
Community College (SFCC) because it breeched an employment contract that left her
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with opposing counsel (Defendant Brian Koji) by Judge Karen Master’s, but after a pre-
trial hearing via phone in which I explained to her that I had hearing problems, she
became nasty, and refused to rule on my motion regarding the bad faith mediation.
Plaintiff filed a request for recusal, and the case was given to Judge Shinholser
who allowed opposing Counsel to file a third Motion for Summary Judgment, and a
On or about May 15, 2007, Plaintiff called Highlands County Circuit Court and
asked the Clerk about Reasonable Accommodation. At that time Plaintiff was told by the
clerk that Highlands County did not have a procedure for granting reasonable
accommodation, and that each Judge handled the requests on his own, that she should call
Shinholser’s JA. I did so, and spoke to Denise Wilcox, who explained that ex parte
communications with the judge were forbidden, so Plaintiff could not speak with him
directly.
Plaintiff explained that she had appeared before Judge Master’s by phone, and
that she had granted my request. Plaintiff explained to her that she was disabled, and that
flying from Kentucky to Tampa, and then driving to Sebring was dangerous to my
condition, an undue burden. Wilcox told Plaintiff it was useless to request any telephone
appearances with Shinholser, as he did not like them and requests of that nature made
him angry. Plaintiff asked about writing a letter to him, and she said it wouldn’t do any
good.
At no time did she tell Plaintiff that the court had a duty to make reasonable
accommodations, and how someone would go about making arrangements in any other
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Neither Wilcox, nor the clerk advised Plaintiff in any way that there was a either a
Plaintiff was dissuaded from making a request at all, and after the chilling treatment she
received from Judge Master’s, Plaintiff was afraid to anger another judge.
Plaintiff attempted to make the hearing in person, and flew to Tampa, then drove
to Sebring, arriving one and a half hours late for the hearing. When she returned to
Kentucky, she immediately filed for a Reconsideration and Rehearing based on her
disability, and sent Judge Shinholser her evidence of disability and of good faith effort to
airline ticket stubs, a doctor’s report, and the contact information of her Rehabilitation
Counselor in Kentucky.
Plaintiff continued to press for her rights through the appellate process, including
a detailed recitation of Judge Shinholser’s and the Circuit Court’s failure of the Circuit
Again, at Oral Argument, Plaintiff made the appellate Tribunal aware of the
deprivation of her rights, and again in her Motion for Reconsideration En Banc, she made
the entire 2nd District court of Appeal aware of the deprivation of her rights to due
process.
Acting under color of law, none of the Florida judicial community made Plaintiff
aware that there was a grievance procedure. Plaintiff has a copy of the oral arguments she
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presented and the first words out of her mouth after do you have any questions…. were
1. Plaintiff alleges that Highlands County Circuit Court had a duty to Plaintiff to
process with her to determine what reasonable accommodation could be made for her to
attend the July 5, 2007 hearing., and/or advise her of the grievance procedures against
Highland’s County Circuit Court failed in this duty by not mandating notification
Communication
§ 35.160 General.
(a) A public entity shall take appropriate steps to ensure that communications with
applicants, participants, and members of the public with disabilities are as effective as
communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where
necessary to afford an individual with a disability an equal opportunity to participate in,
and enjoy the benefits of, a service, program, or activity conducted by a public entity.
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(2) In determining what type of auxiliary aid and service is necessary, a public entity shall
give primary consideration to the requests of the individual with disabilities.
The Highlands Court Clerks Office does not list the ADA Coordinator, nor does it
same to the public on its web site. The web site for the 10th Judicial Circuit contains no
Also the Rehabilitation Act of 1973 Sec 504 which states that "no qualified
individual with a disability in the United States shall be excluded from, denied the
benefits of, or be subjected to discrimination under" any program or activity that either
Every person who under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, Suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an
act or omission taken in such officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was unavailable.
denying a rehearing;
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3. He improperly considered Plaintiffs disability in his decision to deny her a
rehearing and his decision to vacate a trial order without actually vacating the
order;
6. He acted under color of law to deny Plaintiff a right, privilege and immunity
1. Brian Koji improperly used Plaintiff’s disability as a reason for Judge Shinholser
to deny her a rehearing and her trial on the merits of her case. That is, he knew
Plantiff was disabled, knew she had trouble traveling, knew she has appeared by
2. Koji discounted her request for rehearing based on her disability, and displayed
animus and bias towards her disability in his communication with Judge
Shinholser.
3. Koji entered into a conspiracy with Judge Shinholser to deny Plaintiff due
process, equal protection in the denial of her hearing and her trial,
4. Breeched his duty as an officer of the court to notify a pro se Plaintiff of her
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them, which he knew about after Plaintiff filed for rehearing; or inform her of any
grievance proceudres that would allow her to redress their denial when he found
1. Judges Kelly, Wallace, and LaRose and the 2nd District Court of Appeals En Banc
(HCCC), Judge Shinholser and Koji even though Plaintiff sought the exercise of her
rights to due process both in writing and at oral argument and a request for rehearing
2. Failed to notify Plaintiff of a grievance procedure; and thereby acted under color of
3. Also shielding HCCC, Shinholser and Koji from corrective action and direction by
IMMUNITY:
While Defendants’ may seem to have immunity, this immunity disappears when a
fundamental right is claimed, as Plaintiff has pleaded in her complaint that she was
deprived of due process and equal protection rights to a fair hearing and/or a trial.
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In Tennessee v. Lane, 541 U.S. 509 (2004), the Supreme Court ruled that Congress
did have enough evidence that the disabled were being denied those fundamental rights
that are protected by the Due Process clause of the Fourteenth Amendment, among those
rights being the right to access a court. Further, the remedy Congress enacted was
Plaintiff has properly pleaded a violation of due process under the 14th
(D. Conn. Sep. 30, 2004 – (I)n the wake of Lane, it appears that a private suit for money
damages under Title II of the ADA may be maintained against a state only if the plaintiff
can establish that the Title II violation involved a fundamental right.”) The reasonable
burdensome for the court, as she did appear telephonically in Judge Master’s Court.
Additionally, in Haas v Quest Recovery Services Inc., 338 F. Supp. 2d 797 (N.DS.
Ohio Sep 20, 2004) quoting Popovich V. Cuyahoga County Court Pleas, 276 F. 3d 808
(6th Circuit 2002), the court outlined a list of what would be considered a fundamental
right: the right to be present at trial, the right to a meaningful opportunity to be heard, the
Here, Plaintiff was denied the right to be present at a dispositive hearing, and was
precluded from having a meaningful opportunity to be heard. That Counsel and Judge
Shinholser “discussed” the issues, including Plaintiff’s alleged and predicted arguments
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In Phiffer v Columbia River Correctional Institute, 384 F.3d 791(9th Cir. Sep 21,
2004), the Supreme Court vacated and remanded for reconsideration a case in which an
inmate with osteoporosis and osteoarthritis was unable to sit for the three hour periods
required for participation in his assigned prison program, requested return to a previous
The court rejected the state’s 11th Amendment immunity, finding it consistent with
its precedent (that Title II as a whole validly abrogates states’ immunity), and declined to
No. 02-10360 F. 3d (April 6, 2005), the Court ruled that the University failed to provide
qualified sign language interpreters, effective note takers, and other aids, and stated that
Title II is valid 14th Amendment legislation and properly abrogates states’ sovereign
immunity.
Though judges are protected by absolute immunity when sued in their individual
capacity for damages or injunctive relief, they are not immune in their official capacities,
The judges are being sued in their official capacity. Additionally, injunctive relief is
appropriate in this case as a declaratory decree was made by Judge Karen Master’s in this
CONCLUSION
rights to due process and equal protection as a disabled person, and asks the court for a
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jury trial, and/or to award her damages in the amount of $1,000,000.00 or as awarded by
the jury.
________________________
Jenean McBrearty
Plaintiff pro se
685 Ben Ali Dr 407
Danville KY 40422
CERTIFICATION OF SERVICE
I Pepper Cozy, certify that on _________of August, 2008, I placed the above document in
the mail addressed to:
David J Gantz
Florida Attorney General
Office of Attorney General
Civil Litigation department
110 SEW 6th Street 10th Floor
Ft. Lauderdale FL 33301-5001
________________________
Pepper Cozy
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