1 Hiawatha Hoeft-Ross

Monica Hoeft-Ross
2 Martin Hoeft-Ross
Kirsten Hoeft-Ross
3 P.O. Box 6946
Reno, NV 89513
4 (775)544-2721
5 UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
6 *****
7
Hiawatha Hoeft et. al.,
8 Appellate Case No: 07-17369
9 Plaintiff- Appellants
D.C. No. CV-N-05-0121-LRH(VPC)
10
vs
11
12 Werner Hoeft et. al.
13 Defendant - Appellees
_______________________________/
14
15 REPLY TO OPPOSITION TO MOTION FOR APPOINTED COUNSEL
16 FACTS
17 This is a case of overt racial discrimination against Plaintiff/Appellant
18 Hiawatha Hoeft-Ross and the devastating effect it had on his family. The
19 discrimination was both direct and indirect. Plaintiff/Appellant Hiawatha Hoeft-Ross
20 was denied the right to contract and enter into a lease for real property based on his
21 race and disability, and was subjected to ridicule by the Defendant/Appellees through
22 his children and his wife by being told that he was a “no good nigger” and that
23 Plaintiff/Appellant Monica Hoeft-Ross should divorce him because they did not like
24 darkies. Defendant/Appellees are again standing in the way of the Plaintiff/Appellant
25 Hiawatha Hoeft-Ross who is trying to stand up for his rights, by and through their
26 attorneys starting from eviction court to present by making false claims that
27 Plaintiff/Appellants are vexatious and that this case has no merit, when in an order
28 from the lower court denying dismissal this case, stated the case was deemed
meritorious. This court should also be aware that
 1
2 Plaintiff Hiawatha Hoeft-Ross suffers from a Chronic Traumatic Brain Injury (See
3 Exhibit “A” from Dr. Chappel and exhibit “B” from Dr. Spogen documenting that
4 Hiawatha Hoeft-Ross is suffering from seizures and has been ill since May of 2008)
5 and Monica Hoeft-Ross suffers from multiple cognitive impairments as well (see
6 exhibit “C”) as well as supporting declarations Hiawatha Hoeft-Ross and Monica
7 Hoeft-Ross attached hereto.
8 I.
9 INTRODUCTION
10 Counsel begins by saying that the instant motion is expressly filed and signed
11 by Hiawatha Hoeft-Ross and refers to “Plaintiffs” in his motion and thus appears to
12 be seeking appointed counsel for some or all of the appellants.
13 What counsel fails to understand that this appeal is filed as Hiawatha Hoeft-
14 Ross et al., [emphasis added] and includes all Plaintiffs to this appeal. Pro se
15 pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.
16 Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th
17 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint,
18 a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity
19 to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
20 Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). So if there are any
21 deficiencies in plaintiffs papers or pleadings, the Court would be sure to notify
22 Plaintiffs to correct it.
23 II.
24 LEGAL ARGUMENT
25 Plaintiffs understand that there is no constitutional right to counsel. This is a
26 moot point. The standard for appointed counsel is [a] finding of “exceptional
27 circumstances” requires an evaluation of both (1) the likelihood of success on the
28 merits and (2) the ability of plaintiff to articulate his claims in pro se in light of the

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 1 complexity of the legal issues involved. Hatton v. Bank of America 2:2006cv01888
2 Counsel goes on to suggest that Plaintiffs have been able to present their claims and
3 that Hiawatha Hoeft-Ross and Monica Hoeft-Ross are very experienced in litigation,
4 and that there are no exceptional circumstances warranting appointment appointed
5 counsel. The Plaintiffs only experience in litigation is that in pursuing their first
6 amendment right to redress wrongs perpetrated against them. That does not mean that
7 the plaintiffs were successful in their claims. Counsel is purposely blocking the
8 Plaintiff’s right to motion the court for counsel under the exceptional circumstance
9 that Plaintiff Hiawatha Hoeft-Ross and Monica Hoeft-Ross are legally disabled, and
10 unable to keep up with the rigors of litigation. (2) Plaintiffs have no experience in
11 attacking a summary judgement at the appellate level, and the standards thereof and
12 are unlikely to articulate the claims in pro se in light of the complexity of the issues
13 involved. (1) Plaintiffs believe that they were wronged by the District Court’s
14 decisions and perceive a likelihood of success on the merits of their claims.
15 A. Hiawatha Hoeft-Ross Has Pursued Numerous Litigations Pro se
16 Since 1998
17 Counsel argues that the attachments to Plaintiff’s Motion is an unsworn
18 statement purporting to be signed by Dr. John. M Chappel, and asks this court to
19 disregard this statement as hearsay and incompetent evidence under Fed. R. App P.
20 (27)(d)(1). Counsel fails to understand that pursuant to NRS 630.3062 Failure to
21 maintain proper medical records; altering medical records; making false report;
22 failure to file or obstructing required report; failure to allow inspection and copying
23 of medical records; failure to report other person in violation of chapter or
24 regulations. The following acts, among others, constitute grounds for initiating
25 disciplinary action or denying licensure.[emphasis added]. In general, the purpose of
26 rules of evidence is to regulate the evidence that the jury may use to reach a verdict.
27 Historically, the rules of evidence reflected a marked distrust of jurors. The Federal
28 Rules of Evidence strive to eliminate this distrust, and encourage admitting evidence

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 1 in close cases. Even so, there are some rules that perpetuate the historical mistrust of
2 jurors, expressly limiting the kind of evidence they may receive or the purpose for
3 which they may consider it.
4
5 At the same time, the Rules center on a few basic ideas -- relevance, unfair
6 surprise, efficiency, reliability, and overall fairness of the adversary process. The
7 Rules grant trial judges broad discretion to admit evidence in the face of competing
8 arguments from the parties. This ensures that the jury has a broad spectrum of
9 evidence before it, but not so much evidence that is repetitive, inflammatory, or
10 unnecessarily confusing. The Rules define relevance broadly and relax the
11 common-law prohibitions on witnesses' competence to testify. Hearsay standards are
12 similarly relaxed, as are the standards for authenticating written documents. At the
13 same time, the judge retains power to exclude evidence that has too great a danger for
14 unfair prejudice to a party due to its inflammatory, repetitive, or confusing nature or
15 its propensity to waste the court's time.
16 Counsel goes on to list the numerous filings of Hiawatha Hoeft-Ross since the
17 onset of his traumatic brain injury and the exacerbation thereof on October 12, 2006.
18 As stated before, these were cases brought before the court out of need to redress the
19 wrongs committed against him, and under a fixed income, there were no resources to
20 hire an attorney and Hiawatha Hoeft-Ross had the help of his children, wife, and
21 outside resources to do non-legal work when his medical condition did not allow him
22 to do so. Counsel was not there in any of the proceedings to see the condition and
23 demeanor of Hiawatha Hoeft-Ross and counsel’s affidavit and subsequent writings
24 thereto should be stricken as hearsay. He does not know first hand the “litigation
25 savvy” of the Appellants. Counsel is making conclusory allegations, not made on
26 personal knowledge and is not able to testify competently therein, pursuant to Fed.
27 R. App P. (27)(d)(1). Counsel’s reply brief relies on materials that are not a part of
28 the record in this case, and the cases and excerpts therein, in particular, should not be

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 1 made part of this record U. S. v. True No. 99-5111( 6th Cir W.D. KY).
2
3
4
5 Counsel goes on to imply that the actions of the Appellants are vexatious:
6 Black's Law dictionary defines "vexatious proceedings" as follows:
7 Proceeding instituted maliciously and without probable cause. Paramount
8 Pictures v. Blumenthal, 256 App.Div. 756, 11 N.Y.S.2d 768, 772. When the party
9 bringing proceeding merely wishes to annoy or embarrass his opponent, or when it
10 is not calculated to lead to any practical result. Such a proceeding is often described
11 as "frivolous and vexatious," and the court may dismiss it on that ground.
12 "An appeal [or complaint] is not frivolous if "any of the legal points [are]
13 arguable on their merits ..." Anders v. California (1967) 386 U.S. 738; "The objective
14 standard looks at the merits of the appeal from a reasonable person's perspective. ...
15 whether any reasonable person would agree that the point is totally and completely
16 devoid of merit, and therefore, frivolous. ... an appeal is not frivolous if "any of the
17 legal points [are] arguable on their merits." In re Marriage of Flaherty (1982) 31
18 Cal.3d 637, 649. Plaintiffs/appellants, have never instituted any action that can be
19 considered frivolous and all actions have been either decided on their merits,
20 dismissed, or settled out of court. Not one court stated that the actions brought by
21 Plaintiff/Appellants is frivolous or maliciously instituted.
22
B. Appointment of Counsel Would Assist Appellants in Abusing the
23 Purposes of 28 USC 1915
24
Counsel states in no uncertain terms claims that Plaintiff/Appellants are
25
abusing the status of In Forma Pauperis. Counsel has waived his right to bring
26
anything up about the In Forma Pauperis. Counsel was served on February 7th 2008,
27
with a request to proceed IFP and did not respond, and therefor waived his right to
28

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 1 make this an issue. Plaintiffs are merely protecting their rights to a fair tribunal in this
2 complex litigation, and the In Forma Pauperis was granted as a matter of properly
3 filling out Form 4 and being adjudicated by this Court on the affidavit of indigence
4 submitted to this Court by the Plaintiff/Appellants. Respondents/Appellees also note
5 that the IFP1 was filled out only by Hiawatha Ross. Hiawatha Ross is the only
6 breadwinner in the family and the IFP was based on his income only.
7 Hiawatha Hoeft-Ross is not acting as de facto counsel for all others by seeking
8 IFP status for others, but here again the caption of the complaint reads Hiawatha
9 Hoeft-Ross et al. [emphasis added] and therefore includes all other complainants but
10 the crux of the appeal lies with Plaintiff/Appellant Hiawatha Hoeft-Ross’ civil rights,
11 and only he has suffered the deprivation of his civil rights and that is of primary
12 importance in this appeal, that the court erred in dismissing his allegations of the
13 denial of the right to enter into a contract or lease due to Race and Disability and
14 subsequently refused to hear the remaining Plaintiff/Appellant’s state law claims that
15 were inextricably intertwined with the federal claims.
16 Counsel also comes to this Court seeking that the children either represent
17 themselves or get counsel since their turning of age. But at the time that the
18 complaint was filed, the children were minors, and not subject to representation or a
19 guardian ad litem according to the Laws of the State of Nevada. It was a snapshot in
20 time and therefore the status of minor stands. The Fifth Circuit Court of Appeals'
21 perspective of Rule 11 is that "[l]ike a snapshot, Rule 11 review focuses on the instant
22 when the picture is taken--when the signature is placed on the document." Thomas
23 v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir.1988). *** [T]he duty is firmly
24 linked to the act of signing. If such a snapshot in time is not a rule, at the signing of
25 the complaint, then the change in status of any party after the signing of the complaint
26 would result in needless if not endless litigation.
27
28 1
In Forma Pauperis

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 1 Plaintiff/Appellants are not trying to pursue a case without merits and using
2 “tactics” to manipulate this Court, but Plaintiff/Appellants contend they have a
3 legitimate case before this tribunal, but do not know how to go about properly
4 prosecuting their case in an appellate Court of law. The District Court in
5 Plaintiffs/Appellants minds made serious mistakes in not adjusting scheduling
6 according to the Plaintiff’s/Appellant’s disability and there exists a meritorious
7 controversy in which the Court of Appeals must make a decision and is not without
8 merit as Counsel claims.
9 Counsel also harps on Monica Hoeft-Ross as holding herself out to be a
10 paralegal. The exhibit that Counsel sets forth as being an example of Monica Hoeft-
11 Ross’ writings, that supposedly shows that she is capable of representing herself, is
12 about 15 years old, and copyrighted in 1993 and modified, by who knows who in
13 1999. (See Exhibit “D”). Counsel is trying mislead this court by putting in only part
14 of the record and not the whole. There is no authentication of this document, and
15 Monica Hoeft-Ross has no way of knowing what modifications were made by who,
16 and is therefore not only unreliable evidence, but unauthenticated and therefore
17 hearsay. The publisher has no way of knowing if at all Monica Hoeft-Ross wrote
18 this, because there was no face-to-face communication regarding this write-up.
19 Plaintiff/Appellant Monica Hoeft-Ross did not claim any disability at the time this
20 dissertation was apparently written. Plaintiff/Appellant Monica Hoeft-Ross does not
21 remember this writing, as it is so old. Plaintiff/Appellants also ask that this document
22 be stricken due to hearsay and that it is brought up for the first time on appeal.
23 Respondents/Appellees ask this court from permitting appellants to “exploit”
24 the purposes of 28 USC 1915. Plaintiff/Appellants are not looking to exploit this
25 Court in any manner, but merely to ask for assistance in properly prosecuting their
26 case in a full and fair tribunal. The Court is asked to disregard the statements of the
27 IFP argued therein pursuant Fed R. App. P. 27(d)(1). If the courts disregard counsel’s
28 statements, Plaintiff/Appellants contend that the opposition of the

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 1 Defendant/Appellees is both legally and factually unsubstantiated and should
2 therefore be denied because they waived their rights because they did not respond to
3 the IFP.
4
5
6 III.
7 CONCLUSION
8 The Plaintiff/Appellants have no ability to proceed in pro se as they are
9 completely unfamiliar with challenging a summary judgement in an Appellate
10 proceeding and have no legal resources to prosecute such a case. Plaintiff/Appellants
11 are both disabled and believe they present an exceptional circumstance to the Court.
12 Plaintiff/Appellants are confident that they will succeed on the merits of this case if
13 represented by counsel.
14
15 Respectfully submitted
16
17 Date: July 10th , 2008
18
19 __________________
20 Hiawatha Hoeft-Ross
21
22 __________________
23 Monica Hoeft-Ross
24
25
26
27
28

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