No: 09-3356

__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Kay Kim,
Plaintiff – Appellant

v.

George F. Parker, M.D., IU Psychiatrist &

As an Officer Capacity Power given by the judge
Special Judith Judith S. Profitt
Indiana University, employer of Dr. Parker
Defendants – Appellees
__________________________________________________________________

Appeal From the United States District Court

For the Southern District of Indiana – Indianapolis Division

Case No 1:09-cv-0829 DFH JMS

The Honorable Judge David F. Hamilton

__________________________________________________________________
BRIEF AND REQUIRED SHORT APPENDIX OF
PLAINTIFF – APPELLANT, KAY KIM
__________________________________________________________________

Kay Kim, Pro Se, Plaintiff – Appellant

Logonsports State Hosptital (Dodd #1E)
1098 South. State Road 25
Logonsports, IN 46947
No: 09-3356

7th Circuit Court of Appeals – Brief

1
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Kay Kim,
Plaintiff – Appellant

v.

George F. Parker, M.D., IU Psychiatrist &

As an Officer Capacity Power given by the judge
Special Judith Judith S. Profitt
Indiana University, employer of Dr. Parker
Defendants – Appellees
__________________________________________________________________

Appeal From the United States District Court

For the Southern District of Indiana – Indianapolis Division

Case No 1:09-cv-0829 DFH JMS

The Honorable Judge David F. Hamilton

__________________________________________________________________
BRIEF AND REQUIRED SHORT APPENDIX OF
PLAINTIFF – APPELLANT, KAY KIM
__________________________________________________________________

Kay Kim, Pro Se, Plaintiff – Appellant

Logonsports State Hosptital (Dodd #1E)
1098 South. State Road 25
Logonsports, IN 46947
TABLE OF CONTENTS
PAGE
Tables of Authority ___________________________________________ 5,6
Federal Code Statement _________________________________________ 6

Jurisdictional Statement ________________________________________ 7

Statement of the Issues Presented For Review______________________ 7

Statement of the Case___________________________________________ 8

Statement Of the facts Relevant to the Issues________________________ 10

Summary of the Arguments______________________________________17

Argument____________________________________________________18

1. There is sufficient evidence to establish that there is a genuine

issue of Material fact that the Defendants violated Kay Kim’s
rights afforded to her the Civil Rights Act of 1871,
42 .S.C. § 1983, et seq

2. The US Supreme Court and Court of Appeals has already ruled and
reversed a Motion to dismiss based on Rule 12(b)(6).

3. A State University does not qualify for immunity as it is not an arm of

State entitled to sovereign immunity and 11th Amendment Immunity for
liability.

4. The US Supreme Court has already ruled that although a judge may be
immune from his rulings but is liable for any violation to a person’s
rights accorded by the US Constitutions.

5. Although asking for a psychiatric evaluation is a judiciary act, the act of

deliberately misleading the psychiatrist(s) who is doing the evaluation is
not.
6. Special Judge Proffitt violated the Plaintiff/Appellant, Kay Kim, Pro Se
5th Amendment rights – Double Jeopardy.

7. 42 USC Sec 1988 – Attorney Fees allows the Plaintiff/Appellant to have

7th Circuit Court of Appeals – Brief

3
 reasonable attorney’s fees. Since the complaint is not frivolous,
groundless and without merit, the US District Court to charge the cost of
action against the Plaintiff/Appellant, Kay Kim, Pro Se must be reversed.

a. Standard of Review_______________________________ 19

b. The Defendants conspired (character in agreement) to take

away Kay Kim’s right to self representations.____________21

c. Expert witness can be sued_________________________ 22

d. State University does not have absolute immunity_______26

e. A Judge’s ruling is immune from law suit but is not

protected when one’s constitutional rights is violated______27

f. Ruling of the US District Court to test legal sufficiency to

dismiss Psychiatrist Dr. Parker and Indiana University
pursuant to Rule12(b)(6). ____________________________ 33

g. Double Jeopardy – second competency hearing is a violation of the

Plaintiff/Appellant, Kay Kim, Pro Se constitutional rights___36

h. The US District Court denied Plaintiff’s request for

relief in its entirety with a single word “denied”__________37

i. Plaintiff/Appellant is entitled to reasonable and

equivalent attorney fees_____________________________39

Conclusion________________________________________________ 40

ATTACHED REQUIRED SHORT APPENDIX

TABLE OF AUTHORITIES

CASES PAGE

Rankin v. Howard , 633 F.2d 844 (1980)_____________________________23

Ashelman v. Pope, 793 F.2d 1072(1986)_____________________________23

Levine v. Wise & Co, 97N.J. 242__________________________________ 23

James v. Brown, 632 S.W. 2d 914_________________________________ 24

Panitz v. Behrend , 632 A 2d. 562(1993)_____________________________ 24

Pollock v. Panjabi, 781 A.2d 518___________________________________26

John Doe v. John Nuckolls and University of California US 9th Cir (1995)__ 27

Mauriello v. University of Medicine and Dentistry of N.J. (781 F.2d. 46) (3rd

Cir. 1986)__________________________________________________ 26

King v. Love 766 F.2d 962, 968___________________________________ 28

Ashe v. Swenson 397 U.S. 436(1970)____________________________ 37

Benton v. Maryland _____________________________________________ 37

Wise v. Withers 7 U.S. (3Cranch) 331 (1806)_________________________ 30

McShane v. Moldovan, 172 F.2d 1016 (6th Cir, 1949)__________________ 30

Duncan v. Louisiana, 391 U.S. 145 (1968)___________________________ 30

Pierson v. Ray 386 U.S. 547,559 (1967)_____________________________ 30

Randall v. Brigham , 74 U.S. 523__________________________________ 31

Gregory v. Thompson , 500 F.2d 59, 63-64 (1974)_____________________ 31

Forrester v. White , 484 U.S. 219 (1988)_____________________________ 32

Zinermon v. Burch , 494 U.S. 113(1990)_____________________________ 33

Parratt v. Taylor, 451 U.S. 527_____________________________________33

7th Circuit Court of Appeals – Brief

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Hudson v. Palmer, 468 U.S. 517___________________________________ 33

Re: Sindram, #88-6358, 489 U.S. 1064 (1989)___ _____________________33

Re: Sindram 498 U.S. 177________________________________________33

Parham v. J.R., 422 U.S. 584______________________________________34

Dennis v. Sparks, 499 U.S. 24 (1980)____________________________ 23,34

Turner v. Upton County, Texas, 915 F.2d 133, 137-38(1990)_____________35

Federal Code:

42 U.S.C. § 1983, et seq _____________________7,8,18,21,26,34,40

42 U.S.C. § 14141 et seq __________________________________ 7

42 U.S.C. § 1988 et seq _________________________________ 7,39

JURISDICTIONAL STATEMENT

Pursuant to Fed. R. App. P. 28 (a)(4) and Circuit Rule 28(a) the United

States Circuit Court of Appeals has jurisdiction pursuant to the Civil Rights Act of
1871 42 U.S.C. § 1983, et seq., where an Order of a final Judgment has been

entered on September 17, 2009 by the United States Court Southern District of

Indiana. A notice of Appeal was filed on September 20, 2009 by the

Plaintiff/Appellant, Kay Kim, Pro Se.

STATEMENT OF THE ISSUES

PRESENTED FOR REVIEW

1. Whether there is sufficient evidence to establish that there is a genuine

issue of material fact that the Defendants violated Kay Kim’s rights
afforded to me under the Civil Rights Act of 1871, 42 U.S.C. § 1983, et
seq

2. The US District dismissed the Defendants Dr. Parker and Indiana

University pursuant to Rule 12 (b)(6) to test the legal sufficiency of a
complaint and not the factual sufficiency.

3. Whether the US District Court dismissal of the Defendant Special Judge

Proffitt under absolute immunity can and will survive/withstand the
scrutiny of the jurisdiction and judicial capacity of her ruling that is
solely intended to take away the Plaintiff/Appellant, Kay Kim, Pro Se
constitutional rights for self representation and action to conspire with
the Defendant/Appellee, Dr. Parker to commit the Plaintiff/Appellant,
Kay Kim, Pro Se to the State Mental Institution in lieu of a fair trial.

4. The US District Court granted “nothing” to the Plaintiff/Appellant, Kay

Kim, Pro Se request for relief and assessed costs of action against me.

5. Whether the US District Court’s single word “Denied” of the

Plaintiff/Appellant, Kay Kim, Pro Se request for relief in the original
complaint in its entirety meets the Standard of process forward for
vindication of Civil Rights/justice for its remedy.

7th Circuit Court of Appeals – Brief

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 6. The failure of the US District Court to issue injunctive relief and/or
declaratory judgment led to the eventual pretrial involuntary civil
commitment of the Plaintiff/Appellant, Kay Kim, Pro Se to the State
Mental institution. The Plaintiff/Appellant, Kay Kim, Pro Se is
preparing this brief from the State Mental Institution.

7. The Defendant-Appellee, Special Judge Proffitt has violated the

Plaintiff/Appellant, Kay Kim, Pro Se Fifth Amendment Right by giving
me a second competency hearing for the same offences thereby violating
the “Double Jeopardy” clause.

STATEMENT OF THE CASE

On July 6, 2009, The Plaintiff /Appellant, Kay Kim, Pro Se filed a

complaint alleging violations to my constitutional rights pursuant to the Civil

Rights Act of 1871, 42 U.S.C. § 1983, et seq. In the Plaintiff /Appellant, Kay Kim,

Pro Se complaint, Psychiatrist Dr. Parker, Indiana University and Special Judge J.

Profitt are named as defendants. The Plaintiff /Appellant, Kay Kim, Pro Se seeks

injunctive relief to stop competency hearing and declaratory judgment to restore

my rights to self representation in the Indiana Criminal Superior Court. Counsel for

Psychiatrist Dr. Parker filed for Motion to Dismiss (Docketed #15) pursuant to

Rule 12(b)(6). Counsel for Indiana University also filed for Motion to Dismiss

pursuant to 12(b)(6) (Docketed #17). On the August 24, 2009 the Hon Chief

Judge David Hamilton granted Indiana University (Docketed #23) and Psychiatrist
Dr. Parker (Docketed #24) Motion to Dismiss to test the legal sufficiency of Rule

12(b)(6) and not the factual sufficiency, before counsel for Special Judge Proffitt

filed an initial/1st answer to the Plaintiff/Appellant, Kay Kim, Pro Se complaint.

District Court Judge David Hamilton categorically denied the Plaintiff /Appellant,

Kay Kim, Pro Se request in its entirety with a single word “denied.” On July 24,

2009 counsel for Special Judge Proffitt filed for Motion to Dismiss. (Docketed

# 25) based on absolute judicial immunity and Rule 12(b)(6). On September 9,

2009 the Plaintiff/Appellant, Kay Kim, Pro Se filed a Motion to Deny Defendant’s

Motion to Dismiss and Grant Plaintiff/Appellant, Kay Kim, Pro Se for the Final

Order of Judgment (Docketed #27). On September 17, 2009 the Hon Chief Judge

David Hamilton granted Special Judge Proffitt’s Motion to Dismiss (Docketed

#29), giving nothing for the Plaintiff/Appellant, Kay Kim, Pro Se complaint and

assessed the costs of the action against me (Docketed #30) on the ground of

“absolute immunity from the actions (judicial rulings) even though she violated the

Plaintiff/Appellant rights accorded by the US Constitutions. On September 20,

2009 The Plaintiff/Appellant, Kay Kim, Pro Se filed my Notice of Appeal

(Docketed #31), which is now before this court.

STATEMENT OF THE FACTS

RELEVANT TO THE ISSUES

The four charges against the Plaintiff/Appellant are misdemeanor cases:

7th Circuit Court of Appeals – Brief

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trespassing on my own common property (2005); trespassing in city-county

building while attempting to enter the civil filing Room 101 (2006); initially

charged for trespassing on my own common property by the arresting police

officer but instructed by superior officer to change charge to disorderly conduct on

my own common property (2006); (The Statue of limitations on these three already

expired.) and lastly resisting arrest and assaulting a person (Rhonda Heath) who

forced entry into Kay Kim’s locked main security door (2008). On November 6,

2008 the Plaintiff/Appellant was arrested for alleged assaulting and resisting arrest.

The Indiana Criminal Court issued a restraining order to the Plaintiff/Appellant on

my own property/condominium against Rhonda Heath who has no contractual

rights and obligation to be on Kay Kim’s property/condo. The previous three

expired cases that were mysterious missing till now were attached to the new case.

No judge in the Marion Superior Criminal Court wanted to take the case. Special

Judge Proffitt previously appointed by the Indiana Supreme Court also asked to be

excused. On December 1, 2008 the Indiana Supreme Court denied her request and

reappointed Special Judge Proffitt to take the last case only.

On the March 20, 2009 Special Judge Proffitt allowed Plaintiff /Appellant

to represent myself and set the pre trial hearing on May 1, 2009.

On May 1, 2009 Special Judge Proffitt wanted to trial only the 2006 Case

49F080607CM140781 and set the next court date on July 10, 2009. The
Plaintiff/Appellant, Kay Kim, Pro Se objected and asked why the Special Judge is

choosing the 2006 case out of any logical (FIFO or LIFO) chronological order.

Further the Plaintiff/Appellant, Kay Kim, Pro Se told the Special Judge “on the

record” that the Statue of Limitation of the first three cases has run out and the

Special Judge must dismiss the cases. However, the Plaintiff/Appellant, Kay Kim,

Pro Se told Special Judge Proffitt that I have no problem if she wants to trial the

case out of chronological order but dismissed all the predated expired cases.

Despite the Plaintiff/Appellant, Kay Kim, Pro Se plea/objections, Special Judge

Proffitt agreed and conspired with the Prosecutor that Kay Kim was responsible for

the delay/continuation of the cases and the clock counts against me and blamed

Kay Kim for the Court’s intentional mishandling/dropping of the cases. The

Plaintiff/Appellant, Kay Kim, Pro Se wanted the Special Judge to rule on my

motions to subpoena evidences for my case. The Plaintiff/Appellant, Kay Kim,

Pro Se complained to the Special Judge that the Prosecutor is destroying and

withholding evidences from the case. At no time was the Plaintiff/Appellant, Kay

Kim, Pro Se abusive or violent but the Special Judge did not like my style or tone.

Special Judge Proffitt was annoyed because the Plaintiff/Appellant, Kay Kim, Pro

Se has pointed out her illegal orders and mistakes. While the Plaintiff/Appellant,

Kay Kim, Pro Se was vigorously and assertively expressing my point of view

Special Judge Proffitt never stop or warn me to stop talking. Special Judge Proffitt

7th Circuit Court of Appeals – Brief

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instead ordered the Court Clerk to prepare an Order for the Plaintiff/Appellant,

Kay Kim, Pro Se to go for ICST (Incompetent to Stand Trial) mental evaluation.

Special Judge Proffitt ordered the Plaintiff/Appellant, Kay Kim, Pro Se to be

examined by Psychiatrist Dr. Parker and Dr. Callaway on Kay Kim’s competency

to stand trial, the ability to restore the Plaintiff/Appellant, Kay Kim, Pro Se to

competency. The Prosecutor did not file a motion for competency hearing until two

weeks after the Special Judge issued the order for the psychiatric evaluations.

Special Judge Proffitt has always been trying to avoid a trial for the

Plaintiff/Appellant, Kay Kim, Pro Se for many years. Special Judge Proffitt opted

to commit the Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution in lieu

of a trial. Special Judge Proffitt has violated the Plaintiff/Appellant, Kay Kim,

Pro Se rights to due process and self representation. Special Judge Proffitt is laying

her ducks in straight line during the pre-trial with the intention to commit the

Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution involuntarily in lieu of

a trial. Judge Barbara Collins from Court #8 for mental cases already told the

Plaintiff/Appellant, Kay Kim, Pro Se in the last pre-trial hearing that the Special

Judge (Judge Proffitt) will not let me represent myself. Judge Collins is obviously

right. Judge Collins is not only a mental court judge but she is also a psychic judge.

Special Judge Proffitt gave Psychiatrist Dr. Parker and Psychologist Dr.

Callaway all four cases (the Statue of Limitation of three previous cases has
expired. ) to review. Psychologist Dr. Callaway did not allow the

Plaintiff/Appellant to tape the session. Psychiatrist Dr. Parker allowed the

Plaintiff/Appellant to tape the evaluation session on May 19, 2009. As soon as the

tape runs out, Psychiatrist Dr. Parker’s facial expressions became red with anger

and shouted at the Plaintiff/Appellant: “….You were violent in 2005…... Why do

Police lie?......... Police do not lie…” Psychiatrist Dr. Parker mentioned about the

2005 incident (Trespassing on my own common property). The Plaintiff/Appellant,

Kay Kim, Pro Se has filed a Federal lawsuit in 2005 under 1:05-cv-1616 against

the State witnesses and few others. The District Court dropped the ball and

dismissed the case and that ruling encourages everyone and other new people to be

involved in the mistreatment of Kay Kim and ultimately led to the conspiracy to

get Kay Kim arrested on November 6, 2008. The Plaintiff/Appellant, Kay Kim,

Pro Se has filed a Federal lawsuit in 2008 under 1:08-cv-1644 against the people

involved in the conspiracy. Psychiatrist Dr. Parker’s statements show his mind set

and define his professional integrity. Psychiatrist Dr. Parker accused Kay Kim of

being violent in 2005 only in his 2009 evaluation.

Under I.C. 35-36-3-1, a disinterested psychiatrist cannot be an employee or a

contractor of a State Institution. Psychiatrist Dr. Parker is employed by Indiana

University and working from the State owned Wishad Memorial Hospital.

Psychiatrist Dr. Parker has a vested interest to supply a constant flow of patients to

7th Circuit Court of Appeals – Brief

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the mental institutions thereby strengthening his foothold in the mental health

industry. Psychiatrist Dr. Parker is self motivated for his own advancement at the

expense of the voiceless and underprivileged people. This is the third evaluation

on the Plaintiff /Appellant, Kay Kim, Pro Se by Psychiatrist Dr. Parker. On each

evaluation, Psychiatrist Dr. Parker changed his report with medical certainty to

reflect the request or desired intent of the Judge. On this report Psychiatrist Dr.

Parker claimed without any evidence that the Plaintiff /Appellant, Kay Kim, Pro Se

is a danger to the community and if the court concurs should be committed to a

mental institution even though there is no cure or medication. Psychiatrist Dr.

Parker is so sure that his report meets the Judge’s request that he is “looking

forward to working with you (the Judge) in the future.”

On June 15, 2009 Special Judge Proffitt removed the Plaintiff/Appellant’s

rights to represent myself without a competency hearing. The Judge also set the

July 10, 2009 court date to determine Plaintiff/Appellant’s competency to stand

trial. The Court also ordered the Public Defender to take over the Defense of the

Plaintiff/Appellant, Kay Kim, Pro Se in the Competency to Stand Trial hearing and

all cases forthwith.

Since 2005 the Marion County Criminal Court Judges has been colluding to

commit the Plaintiff /Appellant to a mental institution. As soon as Judge Proffitt

was appointed to be a Special Judge by the Indiana Supreme Court, she was
adamant to commit the Plaintiff /Appellant, Kay Kim, Pro Se to a mental

institution. The Plaintiff /Appellant, Kay Kim, Pro Se feared that she could be

committed to a mental institution 1indefinitely filed a Federal Law Suit ( Case:

1:09-cv-0829-DFH-JMS) against Psychiatrist Dr. Parker, Indiana University and

Special Judge Proffitt (Docketed #1 – The Plaintiff /Appellant, Kay Kim, Pro Se

Original Complaint) on July 6, 2009. The Plaintiff /Appellant, Kay Kim, Pro Se

also filed Notice to firing Public Defender on July 2, 2009. On July 10, 2009 the

hearing was continued to September 25, 2009. The Plaintiff /Appellant, Kay Kim,

__________________________________________________________________

1. Indefinitely: Logonsport State Hospital Mission Statement reads that even if the charge is
a misdemeanor they will hold the person indefinitely when one is a danger to the
community. Psychiatrist Dr. Douglas Morris is the Head of the Department in Psychiatry
at Logonsport State Hospital. Psychiatrist Dr. Douglas Morris is a good pal of
Psychiatrist Dr. Parker. Psychiatrist Dr. Douglas Morris co-wrote many psychiatric
journals with Psychiatrist Dr. Parker. Psychiatrist Dr. Douglas Morris is also an assistant
professor in the Department of Psychiatry in Indiana University
_____________________________________________________________________________
_

Pro Se was ordered by the Court Clerk not to file any motion until a new judge is

appointed. On September 25, 2009 the new Special Judge refused to stay his order

the 7th Appeal Court and/or US Supreme Court can rule on the matter of self

representation.

The judge did not allow the Plaintiff/ Appellant, Kay Kim, Pro Se to cross

examine the Psychiatrist and Psychologist on their reports. On September 25, 2009

7th Circuit Court of Appeals – Brief

15
the new Special Judge committed the Plaintiff/Appellant, Kay Kim, Pro Se to the

Indiana Department of Mental Health for restoration to competency based solely

on Psychiatrist Dr. Parker’s criminally and civilly negligent report which stated

with medical certainty that the Plaintiff /Appellant, Kay Kim, Pro Se is not capable

of representing myself and cannot assist own counsel for my defense. Psychiatrist

Dr. Parker added that the Plaintiff /Appellant, Kay Kim, Pro Se is not competent to

stand trial and a 2danger to the community without any evidence.

________________________________________________________________

2. Danger to the community: The US District Court denied the Plaintiff/Appellant, Kay
Kim, Pro Se complaint to test the legal sufficiency of Rule 12(b)(6) and not the factual
sufficiency. The Plaintiff /Appellant, Kay Kim, Pro Se did not have a chance or time to
depose and make discovery and interrogatory on the basis of Psychiatrist Dr. Parker
diagnosis that I am a danger to the community.
______________________________________________________________

SUMMARY OF THE ARGUMENT

The Plaintiff /Appellant, Kay Kim, Pro Se is able to do my own research in

the law library. Contrary to what Special Judge Proffitt and Prosecutor’s claims in

the Criminal Court, the Plaintiff /Appellant, Kay Kim, Pro Se has never missed a

court hearing. The Plaintiff/Appellant, Kay Kim, Pro Se has filed all the necessary

Motions and Court Documents in a timely manner. The Plaintiff/Appellant, Kay

Kim, Pro Se is a person with a rational and sound mind who has represented
myself in all the following cases:

• Four Federal Law Suits, (Case: 1:05-cv-1616, 1:08-cv-1644,

1:09-cv-0829 and 1:09-cv-1221)

• Small Claims Courts (Case: 49K04 0908 SC 03275 and

49K05-0603-SC-2497)

• Indiana Civil Court (Case: 49-C01-0604-PL -0013949).

• Marion County Criminal Courts (Cause No: 49F080505CM083990,

49F080606CM112139, 49F080607CM140781, and

49F080811CM254608) from June 2005 till June 15, 2009.

The Plaintiff/Appellant, Kay Kim, Pro Se is innocent of all the alleged

misdemeanor charges against me. At the time of three previous detentions, three

different state appointed psychiatrists had certified that the Plaintiff/Appellant, Kay

Kim, Pro Se does not suffer from psychosis and is tested negative on substance

abuse. Psychiatrist Dr. Parker has evaluated the Plaintiff/Appellant, Kay Kim, Pro

Se on three different occasions. His subsequent reports are written to meet the

instructions and requests of the judges ordering the evaluation.

Psychiatrist Dr. Parker is not a disinterested psychiatrist. Psychiatrist Dr.

Parker gave the court a report that is contrary to the content in the tape of the

evaluation sessions. Without any evidence Psychiatrist Dr. Parker concluded that

7th Circuit Court of Appeals – Brief

17
the Plaintiff/Appellant, Kay Kim, Pro Se is a danger to the community and should

be committed to a mental institution even though there is no cure. Special Judge

Proffitt removed the Plaintiff/Appellant, Kay Kim, Pro Se rights to represent

myself without a competency hearing. Special Judge Proffitt did not allow the

Plaintiff/Appellant, Kay Kim, Pro Se to question and cross examine the

psychiatrists. Special Judge Proffitt intended to commit the Plaintiff/Appellant,

Kay Kim, Pro Se to a mental institution indefinitely based on/armed with

Psychiatrist Dr. Parker’s evaluation that there is no cure or mediation that can help

restore me to competency.

ARGUMENT

1. There is sufficient evidence to establish that there is a genuine issue

of material fact that the Defendants violated the Plaintiff/Appellant,
Kay Kim, Pro Se rights accorded to me under Civil Rights Act of
1871, 42 U.S.C. § 1983, et seq

2. The US Supreme Court and Court of Appeals has already ruled and
reversed a Motion to dismiss based on Rule 12(b)(6).

3. The US Supreme Court and Court of Appeals has already ruled and
reversed a Motion to dismiss based on Rule 12(b)(6).

4. A State University does not qualify for immunity as it is not an arm

of State entitled to sovereign immunity and 11th Amendment
Immunity for liability.

5. The US Supreme Court has already ruled that although a judge may
be immune from his rulings but is liable for any violation to a
person’s rights accorded by the US Constitutions.
 6. Although asking for a psychiatric evaluation is a judiciary act, the
act of deliberately misleading the psychiatrist(s) who is doing the
evaluation is not.

7. Special Judge Proffitt violated the Plaintiff/Appellant, Kay Kim, Pro

Se 5th Amendment rights – Double Jeopardy.

8. 42 USC Sec 1988 – Attorney Fees allows the Plaintiff/Appellant to

have reasonable attorney’s fees. Since the complaint is not frivolous,
groundless and without merit, the US District Court to charge the
cost of action against the Plaintiff/Appellant, Kay Kim, Pro Se must
be reversed.

A. Standard of Review

At the time of three previous detentions, three different state appointed

psychiatrists had certified that the Plaintiff/Appellant, Kay Kim, Pro Se do not

suffer from psychosis and is tested negative for substance abuse. The

Plaintiff/Appellant, Kay Kim, Pro Se had been in the Marion County Jail for more

than 42 days detention on four separate occasions, yet none of the prison warden

has indicated any evidence of psychosis. The Plaintiff/Appellant, Kay Kim, Pro Se

has never been convicted of any crimes. The Plaintiff/Appellant, Kay Kim, Pro Se

“alleged criminal cases” began soon after I moved into the condominium. All the

false charges were made to force me to move out of the condominium. This is

“Housing Discrimination” orchestrated by the Defendants in Federal Law Suits

7th Circuit Court of Appeals – Brief

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(1:05-cv-1616 and 1:08-cv-1644.) Chris Meloy, a prison warden/condo owner and

Indianapolis Metropolitan Police Department Lt. James Walter/ the condo security

guard got involved in the civil matters and got the Police to make them into

criminal cases. They instigated and influenced the Police to arrest me without any

probable causes to make my life hell on earth.

Without any evidence, Psychiatrist Dr. Parker stated in his report that the

Plaintiff/Appellant, Kay Kim, Pro Se is a danger to the community and left the

decision to commit me to the court. Psychiatrist Dr. Parker has a personal vested

interest in the prosperity of the mental health industry. Psychiatrist Dr. Parker

conspired with the Court providing Kay Kim’s mental evaluation reports to reflect

the request and desire of the Judges. The Plaintiff/Appellant, Kay Kim, Pro Se has

a right to be seen by a disinterested psychiatrist for a second opinion. Psychiatrist

Dr. Parker is not a disinterested psychiatrist as defined by Indiana law. In the State

of Indiana, Psychiatrist Dr. Parker is the top authority in the psychiatry profession.

Judges protect and cover up the mistakes of other judges. The Police protect their

own. Who dare to go against Psychiatrist Dr. Parker’s evaluation on me? The only

way to prove Psychiatrist Dr. Parker’s intentional malpractice against the

Plaintiff/Appellant, Kay Kim, Pro Se is to file Federal Law Suit Pro Se and prove

beyond any doubt that I am competent to stand trial, assist own counsel and

represent myself. When the Indiana Supreme Court asked Special Judge Proffitt to
vacate the bench, she intentionally left all her Orders intact in the Court for the

next judge to execute what she had started: to commit the Plaintiff/Appellant to the

mental institution in lieu of a trial.

In spite of an ongoing Federal Law Suit to restore the Plaintiff/Appellant,

Kay Kim, Pro Se self representation rights, the new Special Judge still ordered me

to be involuntarily committed to the Logonsport State Hospital for incompetency

to stand trial in lieu of a trial on September 25, 2009. The Plaintiff /Appellant, Kay

Kim, Pro Se is preparing this Brief in the Logonsport State Hospital.

B. The defendants conspired (character in agreement) to take away

Plaintiff/Appellant, Kay Kim, Pro Se rights to self representations.

As an officer of the State-Court appointed professional/expert witness

intentionally violated civil act of 1871 (42 U.S.C.A. Section 1983). Color of law is

synonymous with State Action which is conducted by an officer that bears a

significantly close nexus to a state so that the action is treated though it is by the

state. Title 18 USC 242 makes it a crime to deprive any one of their rights “under

the color of law.” Psychiatrist Dr. Parker reported with the intent to allow the

Court to commit the Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution

without a trial is considered an act under the color of law regardless of whether or

not the act is within the limits of his authority. Though I never expect the

Defendant, Psychiatrist Dr. Parker to be charged for any criminal offense, surely

7th Circuit Court of Appeals – Brief

21
the level of his malicious actions and reports warrant this Court to deal seriously

against the Defendant/Psychiatrist Dr. Parker.

As an officer of the State-Court appointed professional/expert witness,

Psychiatrist Dr. Parker intentionally malpractices in his individual capacity and as

a “Doctor” betrayed his own profession and his employer Indiana University.

Based on Psychiatrist Dr. Parker’s unsubstantiated and misleading report alone, the

Indiana Criminal Court committed the Plaintiff/Appellant, Kay Kim, Pro Se to the

Indiana Department of Mental Health on September 25, 2009. Therefore

Psychiatrist Dr. Parker and his employer Indiana University which used his

services both shared responsibility pursuant to Title 18 USC 242 and

42 USC 1983.

C. Expert Witness can be sued.

Expert witnesses should be treated like other professionals who have to

contend with the possibility of getting sued if they do something negligent and they

be held to the same standard of their profession as doctors or lawyers. Psychiatrist

Dr. Parker is a Doctor and an expert witness. In Rankin v. Howard, 633 F.2d

844(1980) the 9th Circuit Court of Appeals reversed an Arizona District Court

dismissal that is based on upon absolute judicial immunity…., later in Ashelman v.

Pope, 793 F.2d 1072 (1986).

Psychiatrist Dr. Parker conspired with the Court providing Kay Kim’s
mental evaluation reports as to specific request of the Judges that lead to the

commitment of the Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution. In

Dennis v. Sparks, the US Supreme Court held that even if a judge has immunity for

an act related to a case, conspirators do not have immunity.

Psychiatrist Dr. Parker has deviated from the acceptable standard of his

profession by providing without any evidence that “Kay Kim is a danger to the

community.” Levine v. Wise & Co., 97 N.J. 242. New Jersey’s State Supreme

Court has held that even a court appointed expert is not immune from liability for

deviating from the acceptable standards applicable to his or her profession.

The Plaintiff/Appellant, Kay Kim, Pro Se is a person with a rational and

sound mind and is capable of representing myself, Pro Se in the Federal Courts

(1:08-cv-1644, 1:09-cv-0829), 7th Circuit Court of Appeals (Case: 09-3356) and

Indiana Superior Civil Courts since 2005. Psychiatrist Dr. Parker has been

negligent and intentionally misdiagnosed the Plaintiff/Appellant, Kay Kim, Pro Se

state of mind. The Texas Supreme Court ruled that experts can be sued for

negligence resulting from their misdiagnoses. James v. Brown, 637 S.W.2d 914.,

“The mere fact that diagnoses became the subject of testimony in a lawsuit did not

insulate the doctors from liability in a negligence action ….the court expressly

rejected extending a blanket grant of immunity from all civil liability for doctors

7th Circuit Court of Appeals – Brief

23
who testify in mental health proceedings.

Psychiatrist Dr. Parker violates R704(b) which states “no expert witness

testifying with respect to the mental state or condition of a defendant in a criminal

case may state an opinion or inference as to whether the defendant did or did not

have the mental state or condition constituting an element of the crime charges or

of a defense hereto. Such ultimate issues are matters for the Trier of fact alone.

Psychiatrist Dr. Parker was negligent in formulating and constantly changing

his opinions in his evaluation of the Plaintiff/Appellant, Kay Kim, Pro Se to reflect

the wishes of the Judges at my expense. The lower court in Wintoll based its

opinion on an earlier Pennsylvania case, Panitz v. Behrend, 273, 632 A.2d 562

(1993). The Pennsylvania Supreme Court then distinguished Panitz by categorizing

the claim against the expert witness there as one which attacked the "substance" of

the expert's opinion whereas the claim in Wintoll as being premised on the

allegation that the expert was "negligen[t] in formulating [his] opinion." The court

found that public policy of encouraging accurate testimony by expert witnesses

was better served by making the witness liable for negligent preparation of

testimony than by immunizing such negligence. Expert witnesses have always

been subject to prosecution for perjury for false testimony. The Pennsylvania

Supreme Court has now expanded the liability of expert witnesses to include

negligence in the preparation of testimony. The Court made the distinction

between "substance" and "preparation" to avoid overruling the older ruling in

Panitz.

"The law has been moving in the direction of holding friendly experts liable

for their professional errors for the past 10 or 15 years," says Andre Moenssens, a

University of Missouri-Kansas City law professor who writes and lectures

frequently on expert witness liability. "The courts are doing away with expert

witness immunity." Both Moenssens and Carol Henderson, the Nova Southeastern

University law professor who wrote what is believed to be the first law review

article on expert witness malpractice in 1991, see that trend as a positive

development. "If expert witnesses can charge thousands of dollars for their

expertise and when the expertise they render is faulty, they ought to be held

accountable for consequences of their acts," Moenssens says. According to

Henderson, expert witnesses should be treated like other professionals who have to

contend with the possibility of getting sued if they do something negligent.

Connecticut became the fifth state to recognize an exception to the immunity

doctrine for a friendly expert in May 2000. A Superior judge in New Haven

refused to dismiss a law suit against a Yale University professor accused of failing

to competently provide litigation support services. Judge Bruce Levin said the

policy on which witness immunity is based – allowing witnesses to speak freely –

was not implicated by the allegations against the professor, who essentially was

7th Circuit Court of Appeals – Brief

25
accused of not doing what he had been hired to do. Pollock v. Panjabi, 781 A.2d

518; No 402199, May 17,2000.

D. A State University does not have absolute immunity.

Determination of State’s immunity from under 11th Amendment is question

of law which is de novo by Court of Appeals. U.S.C. A. Const. Amend. 11. Under

the 11th Amendment not all state created or state managed entities are immune

from suit in federal court as entity may be organized or managed in such a way that

it does not qualify as arm of the state entitled to sovereign immunity.

Indiana University is not as arm of state entitled to 11th Amendment

Immunity from tort liability. Under The Tort Claims Act Indiana University can

sue or be sued. Mauriello v. University of Medicine and Dentistry of New Jersey,

781 F.2d 46 (3rd Cir. 1986)

State university and director of university department in his official capacity,

were persons under and could be fully liable for their actions under § 1983 as they

were not entitled to 11th Amendment sovereign immunity as arms of the state.

U.S.C.A. Const. Amend. 11; 42 U.S.C.A. § 1983.John Doe v. John Nuckolls and

University of California. US 9th Cir Court of Appeals, 93-16972,(1995.)

E. A Judge’s ruling is immune from law suit but is not protected

when one’s constitutional rights is violated.

Special Judge Proffitt was appointed by the Indiana Supreme Court to take

the first three cases (49F08-0607-CM-140781, 49F08-0606-CM-11211139 and

49F08-0505-CM-83990) on March 2, 2007. Judge Profitt failed to provide due

process to the Plaintiff/Appellant, Kay Kim, Pro Se and allowed the Statue of

limitation of the three cases to expire.

When the last case (on November 6, 2008) appeared Special Judge Proffitt

joined Judge Collins and filed Motion in the Indiana Supreme Court to recuse them

from all the four cases. The Indiana Supreme Court denied her request and

reappointed Special Judge Proffitt to rule only the 2008 case. The Statue of

limitation for the first three cases had expired. The Court does not have jurisdiction

on the three cases. Special Judge Proffitt refused to dismiss the three cases with

Statue of limitations that have run out.

Special Judge Proffitt intentionally gave three cases with expired Statue of

Limitations to Psychiatrist Dr. Parker and Psychologist Dr. Callaway for

evaluation. The three cases were intended as tools to solicit the ICST(Incompetent

To Stand Trial) status, take away the self representation rights, and commit the

Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution. Although asking for a

psychiatric evaluation is a judiciary act, the act of deliberately misleading the

Psychiatrists who is doing the evaluations is not. King v. Love 766 F.2d 962, 968

(6th Cir.)

Although the Court has few state appointed psychiatric reports (given in jail

at the time of arrest) which certified that I do not have any evidence of psychosis,

7th Circuit Court of Appeals – Brief

27
two previous reports from Psychiatrist Dr. Parker and Psychologist Dr. Olive, and

a competency hearing in court Special Judge Proffitt is adamant to commit the

Plaintiff /Appellant, Kay Kim, Pro Se to the mental institution so that I cannot have

a fair trial in the court. Special Judge Proffitt deliberately withheld the previous

psychiatric reports from Psychiatrist Dr. Parker and Psychologist Dr. Callaway.

In Special Judge Proffitt’s Order to Psychiatrist Dr. Parker and Psychologist

Dr. Callaway she asked them to determine the Plaintiff /Appellant, Kay Kim, Pro

Se “state of mind at the time of the alleged offences.” In the Order Special Judge

Proffitt also concluded that the Plaintiff/Appellant, Kay Kim, Pro Se is not

competent to stand trial and need to be committed to a mental institution. Judge

Proffitt also asked Psychiatrist Dr. Parker and Psychologist Dr. Callaway to inform

the court when the Plaintiff /Appellant, Kay Kim, Pro Se can be restored to

competency. Special Judge Proffitt intentionally attached all the four cases (49F08-

0505-CM-083990, 49F08-0606-CM-112139, 49F08-0607-CM-140781 and 49F08-

0811-CM-254608) to be sent to Psychiatrist Dr. Parker for evaluations. Three of

the cases had expired Statue of Limitations and would not be allowed as evidence

in court. In his report Psychiatrist Dr. Parker used all four cases for his evaluation.

Since 2005 the Marion County Criminal Court Judges have been colluding

to protect each other and to take away the self representation of the Plaintiff

/Appellant, Kay Kim, Pro Se and send me to the mental institution in lieu of trial.
The Marion County Criminal Court Judges conspired to make the Plaintiff

/Appellant, Kay Kim, Pro Se appear incapable of representing myself or to assist

counsel in Court. The Marion County Criminal Court Judges intentionally

provided the psychiatrists with 4 cases without any evidences and predetermined

judgment on the Plaintiff /Appellant, Kay Kim, Pro Se so that I can be committed

to a mental institution indefinitely.

The Plaintiff /Appellant, Kay Kim, Pro Se has never made a plea bargain or

avoid trials. The Plaintiff/Appellant, Kay Kim, Pro Se wants to represent myself in

the criminal charges against me before a jury.

The US Supreme Court has ruled that there is no absolute immunity when

someone violated the human rights of any individual. The rulings may be immune

but the violation of the rights of any individual is not. The absolute Immunity

doctrine for the court appointed witness(es) and the judges is no longer recognized

in every courts. “As early as 1806, the US Supreme Court in Wise v. Withers

7 U.S. (3 Cranch) 311 (1806) had recognized a right to sue a judge for exercising

authority beyond the jurisdiction authorized by statue, ….several courts had

concluded that Congress never intended to immunize state-court from Federal civil

rights suit., MCShane v. Moldovasn, 172 F.2d 1016 (6th Cir, 1949).”

“The 14th Amendment was enacted soon after the Civil War as a reaction to

7th Circuit Court of Appeals – Brief

29
abuses by Southern officials Pierson v. Ray, 386 U.S. 547,559(1967) (1871 Act

passed in response to Southern lawlessness) ….. In time, the Supreme Court held

that the amendment’s due process clause obligated state courts to obey virtually

every provision of the Bills of Rights. Under this evolving concept, due process

embodied at least the specific liberties guaranteed by the Constitution, Duncan v.

Lousiana, 391 U.S. 145 (1968), holding that the 14th Amendment “incorporates”

specific provisions of the Bill of Rights.”

Special Judge Proffitt had acted maliciously to take away the Plaintiff/

Appellant, Kay Kim, Pro Se right to self representation without a competency

hearing. Special Judge Profitt is fully aware that that she will be unable to commit

the Plaintiff/Appellant, Kay Kim, Pro Se to the mental institution if my self

representation is left intact. Special Judge Profitt has already lined her ducks in a

row and is finally ready to shoot.

Special Judge Proffitt intentionally denied the Plaintiff/Appellant, Kay Kim,

Pro Se motion to subpoena evidences such as video tapes, 911 communications

tapes and phone records of witnesses at the time of the alleged crime thereby

obstructing evidence to the case. Special Judge Proffitt knowingly gave the three

cases with expired Statue of Limitations to Psychiatrist Dr. Parker for the third

(last) evaluation. The US Supreme Court in Randall v. Brigham, 74 U.S. (7Wall.)

523, 19L. Ed 285 (1868) ..…. In its opinion stated that a judge will be liable for
judicial acts if they are done maliciously or corruptly. Special Judge Proffitt has

maliciously violated the Plaintiff /Appellant, Kay Kim, Pro Se right to due process

and corruptly conspired with Dr. Parker to substitute a fair trial with a

plan/intention to commit the Plaintiff/Appellant, Kay Kim, Pro Se to a mental

institution indefinitely.

The Supreme Court has made it clear that the doctrine of immunity should

not be applied broadly and indiscriminately, but should be invoked only to the

extent necessary to affect its purpose. “We must look beyond the status of the party

seeking immunity and consider the nature of conduct for which immunity is

sought.” Gregory v. Thompson, 500 F.2d 59, 63-64 (9th Cir. 1974).

In the Judge’s order for an evaluation Special Judge Proffitt has already

certified that the Plaintiff /Appellant, Kay Kim, Pro Se is not capable to stand trial

and that I should be treated and restored to competency if possible.

“When applied to the paradigmatic judicial acts involved in resolving

disputes between parties who have invoked the jurisdiction of a court, the doctrine

of absolute judicial immunity has not been particularly controversial. Difficulties

has arisen primarily in attempting to draw the line between truly judicial acts, for

which immunity is appropriate, and acts that simply happen to be done by judges.

Here, as in other contexts immunity is justified and defined by the functions it

protects and servers, not by the person to whom it attaches.” “…Once again, it was

7th Circuit Court of Appeals – Brief

31
the nature of the function performed, not the identity of the actor who performed it,

that informed our immunity analysis.” Forrester v. White, 484 US 219, 98 L Ed 2d

555,565, 566, 108 S Ct 538 (US 1988).

“Federal tort law: judges cannot invoke judicial immunity for acts that

violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal,

Spr. 1968 21 n3, p509-516.” The Special Judge Proffitt intended to commit the

Plaintiff /Appellant, Kay Kim, Pro Se to a mental institution for an alleged

misdemeanor crime thereby violated the Plaintiff /Appellant, Kay Kim, Pro Se

civil rights under the 8th Amendment – cruel and unusual punishment. Special

Judge Proffitt violated the Plaintiff /Appellant, Kay Kim, Pro Se civil rights under

the 5th amendment – due process by not dismissing cases that run out on the Stature

of Limitations. Special Judge Proffitt violated the Plaintiff/Appellant, Kay Kim,

Pro Se civil rights under the 6th amendment – by not allowing me to represent

myself. These violations are brought pursuant to 42 U.S.C. § 1983.

F. Ruling of the United States District Court to test legal sufficiency

to dismiss psychiatrist Dr. Parker and Indiana University
pursuant to Rule 12(b)(6).

The Hon Chief Judge David Hamilton ruled to dismiss Psychiatrist Dr.

Parker and Indiana University pursuant to Rule 12(b)(6). The Purpose of the

motion is to test the legal sufficiency of a complaint, not the factual sufficiency.

The US Supreme Court and the Court of Appeals have ruled that a Motion to
Dismiss based on Rule 12(b)(6) be reversed and remanded back to the District

Court.

U.S. Supreme Court, Zinermon v. Burch, 494 U.S. 113 (1990),

11th Circuit Court of Appeals , # 87-1965 (1990), 494 U.S. 113. under 42 U.S.C. §

1983 in the District Court against, inter alios…., the court granted petitioners'

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), relying on

Parratt v. Taylor, 451 U. S. 527, and Hudson v. Palmer, 468 U. S. 517, The Court

of Appeals reversed and remanded. Re: Sindram, #88-6358, 489 U.S. 1064

(1989) 498 U. S. 177,… For purposes of review of a Rule 12(b)(6) dismissal, the

factual allegations of Burch's complaint are taken as true…… We express no view

on the ultimate merits of Burch's claim; we hold only that his complaint was

sufficient to state a claim under § 1983 for violation of his procedural due process

rights. “We express no view on the ultimate merits of Burch's claim; we hold only

that his complaint was sufficient to state a claim under 1983 for violation of his

procedural due process rights." The judgment of the Court of Appeals is affirmed.

The State of Indiana unlawfully took away the Plaintiff /Appellant, Kay

Kim, Pro Se rights to self-representation without a hearing and intent to commit

me to a mental institution without a counsel. “Process Clause" mandates that an

individual be given an opportunity for a hearing before he is deprived of any

significant protected interest… Parham v. J.R., 442 U. S. 584, 442 U. S. 606-607

7th Circuit Court of Appeals – Brief

33
(1979).

The purpose of having mental expert witness(es) and mental laws is to

protect the “mentally ill” person(s) from wrongful prosecution and deprivation of

their rights and not the other way around. The Defendants Psychiatrist George

Parker and Judge Judith Proffitt conspired (conspiracy in character of agreement)

violated the Plaintiff /Appellant, Kay Kim, Pro Se Constitutional rights.

Dennis v. Sparks 499 U.S. 24 (1980) is a United States Supreme Court

opinion about corruption in Texas courts. The court held that those who are not

judges, but conspire to corrupt the court, are not protected by immunity.

Indiana Criminal Court Judge Barbara Collins had recluse herself from the

Plaintiff/Appellant’s cases in a pretrial hearing on January 14, 2009. Judge Barbara

Collins told the Plaintiff/Appellant, Kay Kim, Pro Se: “….You are either going

to get a Public defender or a Private Lawyer and not going to defend yourself…

Case is complicated… Special Judge will … not let you represent yourself…!”

This is “proof of conspiracy” in the Courts to remove the Plaintiff /Appellant, Kay

Kim, Pro Se right to self-representation. Special Judge Judith Proffitt knowingly

and willfully carried the torch.

Turner v. Upton County, Texas, 915 F.2d 133, 137-38, (5th Cir. 1990),

…..while not a judicial immunity case, is an immunity case from West Texas in

which conspirators do not obtain immunity by conspiring with someone who had
immunity. All parties to an alleged section 1983 conspiracy need not be state

actors or charged in the same capacities for liability to attach to all -- even if one of

the coconspirators is absolutely immune from liability for his own actions as a

participant. When the official representing the ultimate repository of law

enforcement power in the county makes a deliberate decision to abuse that power

to the detriment of its citizens, county liability under Section 1983 must attach,

provided that the other prerequisites for finding liability under that section are

satisfied. The district court erred in absolving the county of Section 1983 liability.

The Hon Chief Judge David Hamilton ruled to dismiss any claim against

Special Judge Proffitt because of defendant’s absolute immunity from her actions

(judicial rulings) attributed to her. The Hon Chief Judge David Hamilton failed to

consider Special Judge Proffitt’s violation of the civil rights of the Plaintiff

/Appellant, Kay Kim, Pro Se accorded under: 5th Amendment – due process; 6th

Amendment – right to represent oneself; 8thAmendment – cruel and unusual

punishment; and 14th Amendment -equal protection of the laws. While a judge’s

actions (judicial rulings) are protected by absolute immunity her actions to deprive

any person civil rights are not.

G. Double Jeopardy – second competency hearing is a violation of

the Plaintiff/Appellant, Kay Kim, Pro Se constitutional rights.

The Plaintiff/Appellant, Kay Kim, Pro Se already had a competency hearing

7th Circuit Court of Appeals – Brief

35
for the first three misdemeanor charges in the Criminal Court with Psychiatrist Dr.

Parker and Psychologist Dr. Olive. During the competency hearing the

Plaintiff/Appellant, Kay Kim, Pro Se was allowed to question and challenge the

reports from Psychiatrist Dr. Parker and Psychologist Dr. Olive. At the conclusion

of the competency hearing, the Marion County Criminal Court could not and did

not take away the Plaintiff/Appellant, Kay Kim, Pro Se self representation rights.

The Statue of Limitation for the three misdemeanor charges has expired.

Special Judge Proffitt intentionally and maliciously conspired (character in

agreement) with State Contractors, employees, psychiatrists and psychologists to

commit the Plaintiff/Appellant, Kay Kim, Pro Se to a mental institution

indefinitely. Special Judge Proffitt did not dismiss the three expired cases and

allowed them (the three cases) to be attached to the new misdemeanor (November

6, 2008) charge. By having another competency hearing Special Judge Proffitt

violated the Plaintiff/Appellant, Kay Kim, Pro Se constitutional rights – Double

Jeopardy.

The Plaintiff /Appellant, Kay Kim, Pro Se is currently representing myself

and suing the State’s witnesses on the November 6, 2008 incident in the

US District Court Case: 1:08-cv-1644. Special Judge Proffitt does not have the

jurisdiction and judiciary authority to trial Kay Kim for a 2nd competency hearing .

Special Judge Proffitt has violated the Plaintiff/ Appellant, Kay Kim, Pro Se fifth
Amendment arising from the double jeopardy rule which specifies that “[no person

shall] be subject for the same offense to be twice put in jeopardy of life or limb”

more specifically stated in Ashe v. Swenson 397 U.S. 436 (1970). Although the

Fifth Amendment initially applied to the Federal government, the U.S. Supreme

Court has ruled that the double jeopardy clause applies to the states as well through

incorporation by the fourteenth Amendment (Benton v. Maryland).

H. The United States District Court denied the Plaintiff – Appellant,

Kay Kim, Pro Se Request for Relief in its entirety with a single
word “denied.”

The US District Chief Judge David Hamilton, now confirmed to the 7th

Circuit Court of Appeals ruled and dismissed the Defendants Psychiatrist Dr.

Parker and Indiana University before the Plaintiff /Appellant, Kay Kim, Pro Se

receives an answer from the remaining defendant. The Plaintiff /Appellant, Kay

Kim, Pro Se has no time for any subsequent motions, pleadings, discovery,

interrogatory(ies), deposition, request for admission, pretrial etc. in violation to

Fed. R. Civ/P. 11(b)(3).

The Hon Chief Judge David Hamilton denied or did not rule on the many

issues and reliefs in the Plaintiff /Appellant, Kay Kim, Pro Se original Complaint

(docketed #1). All reliefs sought by the Plaintiff/Appellant, Kay Kim, Pro Se were

denied in its entirety with a single word – “denied” (docketed #30). Final Judgment

entered on this action entered on 17th day of September, 2009 were as follow and

7th Circuit Court of Appeals – Brief

37
not limited to:

• Denied (failure and/or omission to rule) Injunctive Relief to stop the

competency hearing.

• Denied (failure and/or omission to rule) Declaratory Judgment request to

restore the Plaintiff /Appellant, Kay Kim, Pro Se self representation

rights.

• Denied (failure and/or omission to rule) Claim under intentional

malpractice by Psychiatrist Dr. Parker.

• Denied (failure and/or omission to rule) Claims under U.S.

Constitutions:

-5thAmendment – due process

-6th Amendment – self representation

-8th Amendment – cruel and unusual punishment

-14th Amendment – equal protection

• Denied Claims under 42 USC § 1983 in its entirety.

I. The Plaintiff/Appellant, Kay Kim, Pro Se is entitled to reasonable

and equivalent attorney fees.

The Hon Chief Judge David Hamilton assessed the costs of the action
against the Plaintiff /Appellant, Kay Kim, Pro Se when my lawsuit against the

defendants is not frivolous, groundless and without merit. Under 42 USC Section

1988 - Attorney Fees, the Plaintiff /Appellant, Kay Kim, Pro Se is entitled to

reasonable and equivalent attorney fees.

CONCLUSION

The Plaintiff /Appellant, Kay Kim, Pro Se has never asked to be acquitted by

the court, my only request is to be given due process and be able to represent

myself as accorded by the US Constitutions. The Plaintiff /Appellant, Kay Kim,

Pro Se asks the Circuit Court to grant me injunctive relief to stop the competency

hearing and declaratory judgment to restore my self representation under the 6th

Amendment. For the foregoing reasons, this Court should vacate the District

Court’s order granting the motion to dismiss under 12(b)(6) to test legal

sufficiency, absolute immunity filed by the Defendants and order dismissing the

7th Circuit Court of Appeals – Brief

39
Plaintiff /Appellant, Kay Kim, Pro Se entirety request for relief in a single word

“denied” and remand the case back to the District Court.

Further, this Court declares that the Marion County Criminal Court did

violate the Double Jeopardy Protection against the Plaintiff /Appellant, Kay Kim,

Pro Se.

The Plaintiff/Appellant, Kay Kim, Pro Se has stated a claim under

42 U.S.C. § 1983 and I have presented sufficient evidence from which the Court

should find a genuine issue of material fact on my allegations. Accordingly, the

District Court’s granting the Defendants’ Motion to dismiss should be reversed and

the matter remanded. The District Court’s order dismissing my claim and relief

under 42 U.S.C. § 1983 should be reversed and the matter remanded.

The Plaintiff /Appellant, Kay Kim, Pro Se respectfully requests the 7th Court

of Appeals to stop and discontinue the State of Indiana from using mental law and

its authority to force the Plaintiff/Appellant, Kay Kim, Pro Se and/or any other

defendant(s)s to take pretrial mental conversion/mental defense and/or

competency hearing if/when a defendant(s) chooses not to as my own decision for

exercising my rights. Thus the 7th Court of Appeals must rule such practice as

unconstitutional.
 Respectfully submitted,

_______________________
Kay Kim, Pro Se, Appellant -
Plaintiff

09-3356
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Kay Kim,
Plaintiff – Appellant

v.

George F. Parker, M.D.., IU Psychiatrist &

As an Officer Capacity Power given by the judge
Special Judith Judith S. Profitt
Indiana University, employer of Dr. Parker
Defendants – Appellees

7th Circuit Court of Appeals – Brief

41
 CERTIFICATE OF COMPLIANCE WITH
TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS
AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)
(7)(B) because:

This brief contains no more than 10,000 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii),

2. This brief complies with the type requirements of Fed. R.App.32(a)(5) and
the type style requirements of Fed. R.App.32(a)(6) because:

This brief has been prepared in a proportionally spaced typeface using MS

Word Times New Roman Font 14

___________________
Kay Kim, Pro Se Appellant- Plaintiff
Date:___________

Respectfully submitted

Dated:_____________________ ______________________
Kay Kim, Pro Se, Plaintiff –
Appellant
Logonsport State Hospital(Dodd
#1E)
1098 South State Road 25
Logonsport, IN 46947

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing to the counsels were either
mailed by first class U.S. Mail, postage prepaid or hand delivered no later
than December 26, 2009.

___________________
Kay Kim, Pro Se, Plaintiff –
Appellant
Logonsport State Hospital(Dodd
#1E)
1098 South State Road 25
 Logonsport, IN 46947

Robert G Weddle & Elizabeth A. Schuerman (Attorneys for Dr. Parker)

TABBERT HAHN EARNEST & WEDDLE, LLP
One Indiana Square, Suite 1900
Indianapolis, IN 46204
Tel: (317) 639-5444
Fax: (317) 639-5232
Em: rweddle@tabberthahnl.com eschuerman@ tabberthahnl.com

David J Mallon & Jennifer M. Johnson (Attorneys for Indiana University)

ICE MILLER, LLP
One American Square, Suite 3100 & 2900
Indianapolis, IN 46204
Tel: (317) 236-0200
Em: jenniferjohnson@icemiller.com

Corrinne Gilchrist (Attorney for Special Judge J.S. Profitt)

DEPUTY ATTORNEY GENERAL
Office of Indiana Attorney General
Indiana Government Center South 5th Floor
Indianapolis, IN 46204
Tel: (317) 234-2237,Fax: (317) 232-7979
Em: Corrinne.Gilchrist @ atg.in.gov

______________________
Kay Kim, Pro Se, Plaintiff –
Appellant

REQUIRED SHORT APPENDIX

7th Circuit Court of Appeals – Brief

43