BEVERLY BRABHAM'S
DAMAGE COMPLAINT
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BEVERLY BRABHAM
Plaintiff
vs.
STATE OF ALABAMA, et.al.
Defendants
RE: CIVIL ACTION NO. 2:04 - CV - 298 - T
I, Beverly Brabham, Plaintiff in the above styled case,
come before this Honorable Court
seeking relief pursuant to the above styled action.
It is being filed at this time,
and in conjunction with the
pending Habeas Corpus,
to prevent being time barred. The fact
that Plaintiff's Constitutional Rights
were violated places the allegations
directly under the jurisdiction
of the U. S. Federal Court System.
TITLE 28 PART IV CHAPTER 85 Sec. 1331.
Federal question
"The district courts shall have
original jurisdiction of all civil actions
arising under the Constitution, laws,
or treaties of the United States."
According to Rule 8(a) of this 42 USCS 1983
proceeding (Federal Rules of Civil Procedure,)
"the claims for relief should contain:
(1) a short and plain statement of the grounds
upon which the court's jurisdiction depends,
unless the court already has jurisduction
and the claim needs no new grounds
of jurisdiction to support it,
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief,
and
(3) a demand for judgment for the relief the pleader seeks."
A 28 USCS 2254 Habeas Corpus was filed
in this honorable Court on March 20, 2002
while Plaintiff was still
'in custody' from Judge Burt Smithart's order
for probation on April 18, 2001.
The Exhibits, filed in that proceeding,
apply to this present claim for damages.
Preponderance of the the record indicates
clear and convincing evidence that Judge Burt Smithart
was willfully negligent
causing Plaintiff deliberate harm.
I, Beverly Brabham, without the
benefit of Counsel, state my claims
for relief as follows:
1. My guaranteed rights under the Double Jeopardy clause
of the 5th and 14th Amendments have been violated by
Defendant Burt Smithart. At a hearing
on January 24, 2001, I exercised my unfettered right
to refuse probation and return to prison
to complete the illegal probation revocation. (transcript available.)
This was discussed at length
before Judge Smithartart at the hearing. I asked if the Judge
would consider one year of probation. He refused.
Upon my declining three years of probation,
I even asked if there were going to be any
'tricks'
to my return. The Judge stated
that the sentence would again be over,
with no probation and no papers.
I returned to Tutwiler Prison
for 78 more grueling days
to end the sentence on April 10, 2001,
and to be totally finished with the judicial
system in Bullock County, Alabama.
One evening, shortly after my release,
Defendant Smithart telephoned my mother
at her home and told her to inform me that I would
be on probation for one year.
This betrayal of trust
and breach of the agreement and oral order
from the bench, made
on January 24, 2001, was severely damaging.
An order for one year probation
was written and filed by Judge Burt Smithart
on April 18, 2001, eight days
after the second expiration of the sentence.
I was not present for the probation sentencing,
nor was I represented. As Plaintiff,
I pray this honorable Court will award
compensatory and punitive damages,
injunctive and declaratory relief
as well as all further and different relief
that the Court deems appropriate in this cause.
2. Plaintiff's guaranteed rights under the
5th and 14th Amendments have been violated by
Defendant Smithart.
Smithart continuously showed blatant disregard
for due process and judicial duty.
At a hearing on a
Motion for Emergency Reconsideration of the Sentence
on August 27, 1999, Defendant Smithart
heard sworn testimony from Judge Tommy Gaither,
who had previously terminated the same case in May 1997.
Judge Gaither had written an Affidavit,
stating that the case had expired in May 1997.
He testified before Judge Smithart
that I was not placed on probation,
that he ordered that the terms of the suspended sentence
had been met. When Judge Gaither discovered
that Judge Smithart had lied
in his order concerning the hearing,
Judge Gaither wrote yet another Affidavit,
to further affirm the truth of his testimony
and to again reiterate the absolute fact
that I was not on probation,
nor under the jurisdiction of Bullock County Circuit Court
in April 1999. Therefore, a non-existent probation
was revoked by Judge Smithart
and I was illegal imprisoned for 2 years of my life.
The Plaintiff prays this honorable Court
will award compensatory and punitive damages,
injunctive and declaratory relief
as well as all further and different relief that the
Court deems appropriate in this cause.
3. Plaintiff's guaranteed rights under the 5th Amendment
have been violated by Defendant Smithart's
abuse of process,
and procedural and substantive
due process violations.
The color of law actions by Defendant Smithart
show his vindictiveness that I have alleged
since I first filed in this honorable Court
in November 1999. Any prudent Judge
in his position should have known
that ordering yet another sentence
after the person had performed
their end of the agreement to end
the sentence in incarceration, was wrong
and a violation of a U.S. Constitutional
guaranteed protected right. This egregious action,
done under the color of law,
should shock the conscience of the court.
One of the most anguishing points
of the dread of returning to prison
was the fact that my parent's 50th Wedding Anniversary
was March 3, 2001. The return
to end the illegal time in prison
meant that I would not be there
with 5 other brothers and sisters
for this once in a life time event.
This was personally devastating.
In pictures and in memory,
I was their only offspring absent
during this unique event.
Punitive compensation is due in this case,
as the harm is irreparable and irreversible.
The harm was potentially reversible
at the hearing in August 1999,
four months after my illegal imprisonment,
when Judge Smithart was plainly told by Judge Gaither
that he had indeed revoked a non-existent probation.
Judge Smithart deliberately ignored
and disregarded Judge Gaither's
sworn and documented testimony,
however, Smithart did state falsehoods
in his order concerning Judge Gaither's testimony.
4. Plaintiff's guaranteed rights under
the 5th Amendment have been violated severely
by Defendant Smithart, District Attorney Boyd Whigham,
and by Court Reporter Kelly Mills.
I was not given equal protection of the law when:
(a.) Judge Smithart was made aware
in August 1999 that he had indeed revoked
a probation that did not exist.
Judge Smithart, with callous disregard,
refused to correct the error.
He wrote falsehoods in his order and continued
to hold me illegally and wrongfully
incarcerated for 2 years.
This action is at the very least
willful negligence under color of law.
(b.) Boyd Whigham deprived me of equal protection
of the law when he refused to prosecute
my estranged husband, Terry Jordan,
for attempted murder against my person.
The scene of the crime was a bloody massacre
with eye witnesses present and overwhelming
evidence, yet District Attorney Whigham
never presented the case to the Grand Jury.
However, he fabricated a Case Action Summary
on Computer, stating that the Grand Jury
dismissed the case in April 1999.
Attorney Paul Brunson of Eufaula, Alabama
witnessed Whigham's refusal to present the case
to the Grand Jury, and was appalled at DA Whigham's
actions under the color of law
for reporting the falsehood that the case
went before the Grand Jury.
On June 11, 2002, the Case was brought back up
in Bullock County Court. I was not notified,
nor was the arresting officer, Durwood Freeman.
The case was nol prossed without regard
for my due process rights and due equal protection.
I was totally denied equal protection
of the law by D. A. Boyd Whigham.
I have thousands of dollars
in outstanding Medical Bills
for the serious injuries sustained during
the attempted murder which was a bloody massacre.
There was overwhelming evidence that would
not only have received a Grand Jury indictment,
but would have shocked their conscience.
D.A. Whigham's deliberate actions
were a result of his malevolent vindictiveness
toward me, so outrageous
that he cannot adequately perform the duties
of his capacity due to personal feelings.
A prudent person in his capacity should have
known that he was wrong,
and that is all that is required by law to remove his
immunity as well as to remove the immunity
of the other Defendant's names herein.
(c.) Kelly Mills, the Court Reporter
at the January 24, 2001 hearing, admitted to me
that she omitted parts of the transcript,
yet she signed the copy sent to this
honorable Court as it being a full accurate,
and complete transcript. The alteration of the
transcript by Court Reporter Mills
at the request of the presiding Judge
has a conspiratorial component.
The above actions should not be tolerated
in this country if our Constitution
is to remain intact.
Ms. Mills stated that she only included those parts
of the transcript that Judge Smithart told
her to include because she
"works for him" and she "values her job".
When I said to her,
"so the parts you did not include
could be considered omitted, right?
She became very offended
at the word omitted, but stated another way,
what she did not include was blatantly omitted.
Ironically, those parts omitted
were those that were in my favor,
for example, my mother's testimony,
and her obtaining clearly from the Judge
that my return to Tutwiler for the remaining
78 days would completely end
everything concerning that sentence.
The Judge stated that it would do just that.
5. I am entitled to punitive and compensatory damages
for the 78 days that I was illegally imprisoned
by Judge Smithart. I asked for a year
at the hearing and it was refused.
That is why I am entitled to punitive compensation
for those days, if after I returned to complete
the time and did so , that I was sentenced
to a year anyway. The Judge reneged
on his oral order from the bench,
literally deceiving me into returning to prison
for the remaining 78 days with the understanding
that my sentence would be ended,
only to place me on probation
after serving my sentence to the end in confinement.
6. I would like for the scheduling conference
to be in a neutral location other than the
Defendant's Attorney's office.
7. If mediation does not result in a settlement
for the punitive and compensatory claims,
then I hereby request a hearing before a jury.
8. The obstruction of justice toward
me in Bullock County, Alabama
has resulted in the dismissal of the attempted
murder charge against my ex-spouse.
Judge Burt Smithart has literally sentenced
me twice on the same case
which expired in May 1997,
as the record clearly shows. The actions
of the Bullock County judicial system
are so egregious that a transcript was altered
by the Judge and the Court Reporter
to remove those parts that were in my favor.
It is horrific to be on this wrong side
of justice when what I was accused of never
occured in the first place - a false lie
was conspired because I was willing
to try to expose the illegal drug business
in Bullock County.
(It was also imposed
with DA Boyd Whigham and JW Waters
as co-conspirators for Whigham's
self-enrichment.)
I was literally made a political prisoner
because of the attempt to stop a king pin,
thus drastically reducing drug availability.
The Plaintiff trusts that this
honorable Court will uphold federal law
by ruling according to Federal Law. There is no provision for relief
from this injustice in the Alabama courts.
Right or wrong, no Alabama judge
is going to rule favorably or even lawfully
on these matters when one of the
Defendants is an Alabama judge.
Our system seems to have has lost such
integrity when it comes to the interest of justice.
Relief from these major
Constitutional Right violations and deprivations
can only come from the Federal Courts,
the guardians of our Constitution.
Respectfully Submitted,
Beverly Brabham
Supporting documents for the above complaints are available upon request from the Court.
Magistrate Judge's Recommendations
Click any of the Links
below to quickly reference
Documents and Exhibits
Exhibits
Details surrounding
the telephone sentencing
Magistrate Judge's Recommendation
Federal Judge's Opinion
Federal Judge's Judgement
Federal Judge's Order
Federal Court Refuses to Protect
Guaranteed Constitutional Rights
CRIMINAL COP
WITH MULTIPLE FELONIES
COMMITTED WHILE IN UNIFORM
RECEIVES ONLY PROBATION
Click here to Read About It!
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