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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE: 06-CV-1428-MOORE

JENEAN MCBREARTY

Plaintiff ProSe PLAINTIFF’S FIRST AMENDED


COMPLAINT FOR DAMAGES
V.

BRIAN KOJI; HIGHLANDS COUNTY


CIRCUIT COURT; FLORIDA 2ND
DISTRICT COURT OF APPEALS;
JUDGES OLIN SHINHOLSER,
PATRICIA KELLY, DOUGLAS
WALLACE AND EDWARD LAROSE,
in their official capacities

Defendants

FACTS

Plaintiff, Jenean McBrearty, is a 61 year old female who became disabled on

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

labyrinth-related problems, is not supposed to fly in pressurized cabins, or be under

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

bankrupt. Plaintiff was granted a trial following a court-ordered (bad-faith) mediation

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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

hearing was scheduled for July 5, 2007.

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

way than through Judger Shinholser.

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Neither Wilcox, nor the clerk advised Plaintiff in any way that there was a either a

grievance procedure or reasonable accommodation procedure available to me. Rather,

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

appear, including an explanation of the nature of her disability, a speeding warning,

airline ticket stubs, a doctor’s report, and the contact information of her Rehabilitation

Counselor in Kentucky.

Opposing counsel wrote an objection to Plaintiff’s request for reconsideration and

rehearing in which he references Plaintiff’s disability. Shinholser denied Plaintiff her

Constitutional right to due process, and denied her motion.

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

Court to provide Reasonable Accommodation in her opening brief.

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

“This case is important because it addresses the rights of disabled people…”

CAUSES OF ACTION AGAINST HIGHLANDS COUTY CIRCUIT COURT:


VIOLATION OF THE AMERICAN S WITH DISABILITIES ACT OF 1990 Title II

1. Plaintiff alleges that Highlands County Circuit Court had a duty to Plaintiff to

provide information about reasonable accommodation, and engage in an interactive

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

Judge Shinholser and his JA who refused to make reasonable accommodation.

Highland’s County Circuit Court failed in this duty by not mandating notification

of pro se plaintiffs by every Judge of the existence of or procedures whereby a disabled

plaintiff can receive reasonable accommodation. The duty to communicate such

information is created by the following statues:

Americans With Disability Act of 1990 (ADA) which protects qualified

individuals with disabilities from discrimination on the basis of disability in services,

programs, facilities or activities of all state and local governments.

Also TITLE 28—JUDICIAL ADMINISTRATION , CHAPTER I—


DEPARTMENT OF JUSTICE PART 35 -- NONDISCRIMINATION ON THE
BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES

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

provide any information regarding reasonable accommodation, or direct inquiries for

same to the public on its web site. The web site for the 10th Judicial Circuit contains no

information regarding reasonable accommodation either.

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

receives Federal financial assistance or is conducted by any Executive agency or the

United States Postal Service. Highlands county received federal assistance.

CAUSES OF ACTION AGAINST JUDGE OLIN SHINHOLSER (Violations of


ADA, 14th Amendment rights to Due Process and Equal Protection; 42 USC 1983
Deprivation of Constitutional Right under color of law) 42 USC 1983 states:

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.

1. He refused to make reasonable accommodation to the disabled Plaintiff before a

disopositive hearing so she could fully participate in a court proceeding;

2. He denied Plaintiff Constitutional rights to due process and equal protection by

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;

4. He denied Plaintiff her right to a jury trial;

5. He knew of his duty to make reasonable accommodation, and ignored it;

6. He acted under color of law to deny Plaintiff a right, privilege and immunity

under the 14th Amendment.;

7. He entered into a conspiracy with Brian Koji to deprive Plaintiff of her

constiutional rights to due process and equal protection.

CAUSES OF ACTION AGAINST DEFENDANT BRIAN KOJI (Violations of ADA,


14th Amendement rights to Due Process and Equal Protection; 42 USC 1983
deprivation of Constitutional rights under color of law)

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

phone before Judge Masters,

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

reasonable accommodation options when Highlamds County Circuit Court denied

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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

out about the denial.

CAUSES OF ACTION AGAINST FLORIDA 2ND DISTRICT COURT OF


APPEALS AND JUDGES KELLY, WALLACE AND LAROSE (Violations of ADA,
14thAmendment right to due process and Equal Protection, 42 USC 1983)

1. Judges Kelly, Wallace, and LaRose and the 2nd District Court of Appeals En Banc

condoned the deprivation of Plaintiff’s rights by Highlands Couty Circuit Court

(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

and reconsideration enbanc,

2. Failed to notify Plaintiff of a grievance procedure; and thereby acted under color of

law not only to deprive Plaintiff of her rights,

3. Also shielding HCCC, Shinholser and Koji from corrective action and direction by

a higher court, thus perpetuating the wrongdoing of defendants HCCC, Judge

Shinholser and Brian Koji.

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.

Defendants’ immunity argument must fail as a matter of Federal case law.

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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

congruent and proportional, because the "reasonable accommodations" mandated by the

ADA were not unduly burdensome and disproportionate to the harm.

Plaintiff has properly pleaded a violation of due process under the 14th

Amendment. (See Johnson v Southern Connecticut State University, 2004 WL 2377225

(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

accommodation she requested – that of telephonic appearance – is not unduly

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

right to a trial by jury or the public’s right of access to criminal proceedings.

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

cannot substitute for this right.

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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

program or reasonable accommodation, and suffered physical pain as a result of the

denial of the requested accommodation,

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

further review that settled principle.

In Association for Disabled Americans Inc. v Florida International University,

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

case, the declaration that Plaintiff had a right to trial by jury.

CONCLUSION

WHEREFORE, Plaintiff is asking the court for vindication of her constitutional

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.

Respectfully submitted this _____ day of August, 2008.

________________________
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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