ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants

REPLY TO RESPONSE TO PLAINTIFFS' MOTION FOR RULE 11 SANCTIONS

1 Special attorney Richard Patrick writes

Undersigned counsel for defendant William F. Downes, Chief Judge of the United States District Court for the District of Wyoming, hereby responds in opposition to plaintiffs’ motion for Rule 11 sanctions. Because plaintiffs’ motion is procedurally and substantively flawed, it should be summarily denied.

Contrary to Patrick's statement

plaintiffs’ motion is procedurally and substantively flawed

As Tenth Circuit judge Paul Kelly, Jr points out

Issues regarding sanctions under Rule 11 are collateral and the court has jurisdiction to consider them despite the entry of judgment and dismissal of an action, whatever the reason. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.

2 Special attorney Richard Patrick writes

Under Fed. R. Civ. P. 1 l(c)(l)(A), the “safe harbor” provision, plaintiffs were obligated to serve their motion for sanctions on undersigned counsel in advance of filing. Only if the challenged motion to dismiss was not withdrawn or corrected within 21 days after service is the motion for sanctions to be filed. Compliance with the “safe harbor” provisions is mandatory within the Tenth Circuit. For that procedural default above, plaintiffs’ Rule 11 motion should be denied. Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637, 640 (D. N.M. 1999).

The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion.

The motion for sanctions is not, however, to be filed until at least 21 days (or such other period as the court may set) after being served. If, during this period, the alleged violation is corrected, as by withdrawing (whether formally or informal)) some allegation or contention, the motion should not be filed with the court. These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were some times reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.

To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare a Rule 11 motion.

We see this in docket entry 29, Exhibit A.

02/01/02 02/04/02 29 MOTION by pltfs for order to correct failure to mail copy of notice of request for John Ashcroft and Richard Patrick to withdraw mtns to dismiss (bap) (118k)

Patrick was notified by phone on January 28, 2002 [Exhibit A, docket entry 28] and corresponded by mail in which intention of the motion for sanctions were discussed.

The safe harbor concept is to prevent blind-siding or instant motion. This was not the case here.

Rule 11 c(1)A suggests that notice (formal or informal) must be given.

Patrick corresponded by mail to plaintiffs and was fully aware of the issues and position that appeared in the Rule 11 motion filed. So he was fully notified. Secondly, plaintiffs reputation for pursuing the issues are well-established. Therefore fair and legal notice was timely.

Patrick didn't only fail to withdraw motion within "safe harbor" time but Patrick flaunts ignoring safe harbor IN WRITING in his February 11, 2002 letter to plaintiffs [Exhibit B] where he writes

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Accordingly, at this point, I do not believe that settlement discussion is my client's best interests.

Federal court and judge Benson has no jurisdiction over state case of harassment, replevin, and defamation [libel].

3 Special attorney Richard Patrick writes

Substantively, plaintiffs’ motion is premised upon the argument that the motion to dismiss filed on behalf of Chief Judge Downes is “frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Plaintiffs’ motion, p.1.) The merits of Chief Judge Downes’ motion to dismiss remain for resolution by this Court. Here it is sufficient to say that that motion is both legally and factually well-supported. As to plaintiffs’ assertion that the motion to dismiss was filed for an improper purpose, that argument is specious. The doctrine of absolute judicial immunity is so settled in American jurisprudence that any litigant who sues a judge for judicial acts within his jurisdiction must expect a responsive motion to dismiss as a threshold hurdle to overcome.

Patrick was given opportunity to withdraw motion.

Patrick continues to hope that this court would act improperly, as defendant judge William F Downes did, and rule on substantive issues, plaintiff rightly filed motion for sanctions under Rule 11.

4 Special attorney Richard Patrick writes

Accordingly, undersigned counsel hereby requests that the Rule 11 motion be summarily denied.

5 Lastly we should also learn from Pendleton v. Central New Mexico Correctional Facility that settlement would be the most expeditious solution to this whole morass of litigation. Plaintiffs have offered to file motion allowed under New Mexico state law to dismiss charges against judge William F Downes as part of settlement.

Plaintiffs continue to seek settlement but will continue to pursue justice in the courts if settlement is out of the question.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 28, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico 87102
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov
http://www.geocities.com/CapitolHill/Congress/8327/

Arthur R. Morales and CIV-0l-1198 DVB
William H. Payne,
RESPONSE TO PLAINTIFFS’
Plaintiffs, MOTION FOR RULE 11
SANCTIONS

V.

John W. Zavitz; William F. Downes; and
French & Associates, P.C.,

Defendants.

Undersigned counsel for defendant William F. Downes, Chief Judge of the United States District Court for the District of Wyoming, hereby responds in opposition to plaintiffs’ motion for Rule 11 sanctions. Because plaintiffs’ motion is procedurally and substantively flawed, it should be summarily denied. Under Fed. R. Civ. P. 1 l(c)(l)(A), the “safe harbor” provision, plaintiffs were obligated to serve their motion for sanctions on undersigned counsel in advance of filing. Only if the challenged motion to dismiss was not withdrawn or corrected within 21 days after service is the motion for sanctions to be filed. Compliance with the “safe harbor” provisions is mandatory within the Tenth Circuit. For that procedural default above, plaintiffs’ Rule 11 motion should be denied. Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637, 640 (D. N.M. 1999). Substantively, plaintiffs’ motion is premised upon the argument that the motion to dismiss filed on behalf of Chief Judge Downes is “frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Plaintiffs’ motion, p.1.) The merits of Chief Judge Downes’ motion to dismiss remain for resolution by this Court. Here it is sufficient to say that that motion is both legally and factually well-supported. As to plaintiffs’ assertion that the motion to dismiss was filed for an improper purpose, that argument is specious. The doctrine of absolute judicial immunity is so settled in American jurisprudence that any litigant who sues a judge for judicial acts within his jurisdiction must expect a responsive motion to dismiss as a threshold hurdle to overcome.

Accordingly, undersigned counsel hereby requests that the Rule 11 motion be summarily denied.

Respectfully submitted this 21st2002.

JOHN ASHCROFT

United States Attorney General

Richard G Patrick
Special Attorney
Original filed and copy of the foregoing
mailed this 21 day of March, 2002, to:
Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Christina E. Anaya
French & Associates, P.C.
500 Marquette, NW, Suite 600
Albuquerque, New Mexico 87102

Michael Hoses, AUSA
U.S. Attorney’s Office
201 Third Street, NW, Suite 900
Albuquerque, New Mexico 87102

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

DISCOVERY PLAN

1 As this court may know

Rule 26. - General Provisions Governing Discovery

(a) Discovery Methods.

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; requests for admission; and calls.

(b) Discovery Scope and Limits.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

and

(d) Sequence and Timing of Discovery.

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

However, Local Rule 26.4 Timing of Discovery and Initial Disclosures states

(a) Discovery. A party may not seek discovery under these rules or the Fed.R.Civ.P. before the initial scheduling conference except by agreement of all parties or by Court order.

(b) Party Entering Case After Initial Scheduling Conference. A party must meet all established case management deadlines. Initial disclosures in accordance with Fed.R.Civ.P. 26(a)(1) are due within thirty (30) calendar days after the party enters an appearance.

3 Nothing appears to be getting done in this lawsuit. It appears the Court is stalling. Plaintiffs must request discovery to find out what is causing the delay.

Plaintiffs demands their right to conduct discovery under Rule 26.

This court has not scheduled required by local rule Initial Scehduling Conference, therefore plaintiffs submits their plan to court.

4 DISCOVERY SCHEDULE

START DATE: Monday March 25, 2002
TIME: 90 days
METHODS: admissions, interrogatories, production of audio, video, electronic documents, documents, notes.
INITIAL PARTIES FROM WHOM DISCOVERY IS SOUGHT

Judge James A Parker
Judge William F Downes
Judge Martha Vazquez
Judge W. John Brennan
Judge W. Daniel Schneider
Judge Patricio Serna
Court clerk Benina Armijo Sisneros
New Mexico state employee William Haas
Defendant John W Zavitz
Defendant French and Associates

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 18, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

http://www.geocities.com/CapitolHill/Congress/8327/

civ - 2000 10289

Arthur R Morales
William H Payne

Plaintiffs

v

Robert J Gorence
John J Kelly
Manuel Lucero
Jan Elizabeth Mitchell
Don F Svet

Defendants

DISCOVERY PLAN

1 As the court may realize from RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS

1-026. General provisions governing discovery.

A. Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, under Rule 1-034 or Rule 1-045(A) (1) (c), for inspection and other purposes; physical and mental examinations and requests for admission.

B. Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. ...

LR2-602. Settlement facilitation program.

H. Settlement conference information. At least five (5) days prior to the conference, all parties shall provide the facilitator(s) with the information listed below. This information shall not be filed with the court nor in any way be made part of the court record, and at the providing party's discretion, need not be produced to other parties. Upon motion of any party or its own motion, the court may impose sanctions for failure to provide the information to the facilitator(s). (1) Case number and caption;
(2) Brief description of the case; in domestic relations cases include date of marriage, separation and divorce, names, ages, occupations and current annual incomes of parties, and names and ages of children;
(3) Description of the relief sought;
(4) List of pending factual issues;
(5) List of pending legal issues;
(6) List of all remaining discovery; .....

2 Case civ - 2000 10289 is an open jury trial lawsuit.

3 Nothing appears to be getting done in this lawsuit. It appears the Court is stalling. Plaintiffs must request discovery to find out what is causing the delay.

Plaintiffs demands their right to conduct discovery under Rule 1-026.

This court has not scheduled required by local rule Initial Scehduling Conference, therefore plaintiffs submits their plan to court.

4 DISCOVERY SCHEDULE

START DATE: Monday March 25, 2002 TIME: 90 days METHODS: admissions, interrogatories, production of audio, video, electronic documents, documents, notes. INITIAL PARTIES FROM WHOM DISCOVERY IS SOUGHT

Judge James A Parker
Judge William F Downes
Judge Martha Vazquez
Judge W. John Brennan
Judge W. Daniel Schneider
Judge Patricio Serna
Court clerk Benina Armijo Sisneros
New Mexico state employee William Haas
Robert J Gorence
John J Kelly
Manuel Lucero
Jan Elizabeth Mitchell
Don F Svet

Respectfully submitted

Arthur R Morales
1024 Los Arboles NW
Albuquerque, NM 87107
505 3451381

William H Payne
13015 Calle de Sandias NE
Albuquerque, NM 98111
505 292 7037

ALL PARTIES ENTITLED TO NOTICE

Lawyer for defendants:

Raymond Hamilton
Assistant US Attorney
201 Third Sweet, NW Suite 900
Albuquerque, NM 87102

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

Note: Relevant material from exhibits are reproduced for sake of continuity

1 Sanction Assistant US Attorney Richard G Patrick for failure to withdraw MOTION AS TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES [Exhibit A, docket entry 26] and MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES [Exhibit A, docket entry 27] which is frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

2 Assistant US Attorney Patrick and attorney general John Ashcroft were asked

1/29/02 01/30/02 24 NOTICE by pltfs of request for John Ashcroft and Richard Patrick to withdraw mtns to dismiss as to deft Downes (bap) (259k)

Docket sheet, Exhibit A shows that requested MOTION and associated MEMORANDUM not withdrawn.

3 New Mexico chief judge James A Parker

10/25/01 10/26/01 6 ORDER OF RECUSAL by Chief Judge James A. Parker reassigning case to Chief Judge Dee V. Benson for the District of Utah (cc: all counsel*) (bap) (8k)

28 USC Sec. 2283

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Therefore the conclusion is that judge Benson has no jurisdiction over state case of harassment, replevin, and defamation [libel].

4 Rule 11(b). Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions state in Federal Rules of Civil Procedure,

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Lawyers Patrick and Ashcroft have presented their MOTION and associated MEMORANDUM in hope that federal chief judge Benson will dismiss claim against fellow judge William F Downes.

Patrick and Ashcroft's actions are therefore premeditated and malicious.

5 Assistant US Attorney writes plaintiffs, Exhibit B,

February 11,2002

Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Re: Morales & Payne v. Zavitz, et al.
CIV-0l-l 198-DVB

Payne v. Dow, et al.
CIV-01-1 132-DVB

Dear Mr. Morales and Mr. Payne:

Thank you for your letter of February 2, 2002 regarding the above-entitled cases. Your comment that these cases are about “lawyers and judges breaking New Mexico state laws trying to escape justice” is somewhat puzzling. As I understand the situation, you filed initial lawsuits in state court which some or all of the defendants believed were removable to federal court. The removal laws were enacted by Congress. After removal, you requested that some or all of the cases be remanded to state court. If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to theTenth Circuit. Rather than pursue such remedies, you have chosen to sue some of the lawyers and judges involved in the cases. Representing one of those judges, I have filed motions to dismiss based upon my belief, well supported, that Chief Judge Downes is judicially immune from suit for the claims you assert.

With respect to your suggestion of settlement, I once again only represent one defendant in two lawsuits. The concept of settlement requires that a party evaluate his or her hazards of litigation. What are the claims against the defendant and what do the law and facts suggest about the merits of those claims. As to Chief Judge Downes, and with all due respect, I see no hazard of litigation with regard to your claims against Chief Judge Downes. Accordingly, at this point, I do not believe that settlement discussion is in my client’s best interests.

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Thank you.

Sincerely yours,

PAUL K. CHARLTON
United States Attorney
District of Arizona

signed

Richard G. Partrick

Friday 2/15/02 12:53 PM

Richard G Patrick
Special Attorney
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408
602-514-7500

Dear Mr Patrick:

The purpose of this letter is to respond to your thoughtful letter dated February 11, 2002 and further apprise you of facts which your client, Wyoming chief judge William F Downes, and you might wish to consider.

We continue to believe that settlement of these unfortunate matters is best.

You wrote

Your comment that these cases are about “lawyers and judges breaking New Mexico state laws trying to escape justice” is somewhat puzzling. As I understand the situation, you filed initial lawsuits in state court which some or all of the defendants believed were removable to federal court. The removal laws were enacted by Congress. After removal, you requested that some or all of the cases be remanded to state court. If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to the Tenth Circuit.

Your statements appear to make it clear you and you client, judge Downes, misunderstand the situation.

We sued to recover [replevin] $625 garnished by Sandia National Laboratories from Mr. Morales wages.

Morales requested an offered hearing. No hearing was conducted. $625 was taken from Morales wages without due process.

In addition federal magistrate judge Don J Svet signed a order of garnishment against Morales for $1,793.56 when there was no cause of action against Morales. This is still and open matter and must be resolved in court or settled.

We requested a stay of federal proceedings on our removed lawsuit based on

Rule 62. - Stay of Proceedings To Enforce a Judgment (a) Automatic Stay - Exceptions - Injunctions.

(f) Stay According to State Law.

In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state.

This stay was granted by federal judge Martha Vazquez.

12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10- 1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10]

Yet US Attorneys and judge James Parker ignored this stay and transferred the case to your client, judge William Downes, who also ignored the stay.

Your client is guilty of denial of our due legal process.

Your statement

If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to the Tenth Circuit.

must be challenged on the ground that federal court does not have jurisdiction in any of our state lawsuits.

We asked, in writing, for jurisdiction justification from judges Parker, Downes, and Benson as required by law.

28 USC Sec. 2283 states

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

No justification from any judge was received by us as stated in our affidavits. Whereby using the Federal Rules of Civil Procedure when no response is received means affirmation. Since we received no responses to our requests, judges confirm that they do not have jurisdiction as mandated by the anti-injunction act.

Therefore your suggestion to wait for an appeal to the Tenth Circuit would only be a waste of court's time and money. This must be considered be additional harassment in violation of New Mexico state laws.

You wrote

Rather than pursue such remedies, you have chosen to sue some of the lawyers and judges involved in the cases. Representing one of those judges, I have filed motions to dismiss based upon my belief, well supported, that Chief Judge Downes is judicially immune from suit for the claims you assert.

We have selected to sue in New Mexico state court because we have been harassed in violation of New Mexico state laws by judge Downes.

From the information above we believe your motion to dismiss submitted to judge Benson is should be reconsidered.. Reason, of course, is that Benson and federal court do have jurisdiction. If your motion to dismiss is pursued, we must consider these actions frivolous and harassing. We'll pursue this.

You wrote

As to Chief Judge Downes, and with all due respect, I see no hazard of litigation with regard to your claims against Chief Judge Downes. Accordingly, at this point, I do not believe that settlement discussion is in my client’s best interests.

We believe that you subjected judge Downes to a grave hazard. You are trying to get judge Benson, who has no jurisdiction, to dismiss a New Mexico state lawsuit.

You wrote

With respect to your suggestion of settlement, I once again only represent one defendant in two lawsuits. The concept of settlement requires that a party evaluate his or her hazards of litigation. What are the claims against the defendant and what do the law and facts suggest about the merits of those claims.

We feel that it is in your client judge William F Downes best interest to promptly settle these unfortunate lawsuits.

You conclude

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Thank you.

We don't believe waiting is wise. Reason is that it places judge Benson in jeopardy of ruling when Benson has no jurisdiction.

It was Downes ruling when he didn't have jurisdiction and ignored judge Vazquez' ruling that compelled us to sue Downes, twice, in New Mexico state court.

Downes is guilty, in writing too, of denial of due process.

We can believe that judge James Parker may not have adequately apprised judge Downes of the true statement of facts in our original New Mexico state lawsuits.

For this reason, we are prepared to file, in New Mexico state court, motions to dismiss claims against judge Downes provided we can settle these unfortunate matters.

Sincerely

Arthur R Morales
1024 Los Arboles NW
Albuquerque, NM 87107
505 3451381

William H Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
505 292 7037

Distribution

John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Paul K Charlton
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

Judge William F Downes
care of
Webmanager@wyd.uscourts.gov

6 While plaintiffs believe their February 15, 2002 letter to Patrick adequately explained why these unfortunate matters should be settled and what plaintiffs were prepared to do with Downes, Patrick responds

February 22, 2002

Arthur R. Morales
1024 Los Arboles, N.W.
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Re: Morales & Payne v. Zavitz, et al.
CJV-0l1198-DVB
Payne v. Dow, et al.
CIV-0l-1 132-DVB

Dear Mr. Morales and Mr. Payne:

Thank you for your letter of February 15, 2002. The crux of our informal disagreement in our exchange of letters is best illustrated by your comment that I, on behalf of Chief Judge Downes, am "trying to get Judge Benson, who has no jurisdiction, to dismiss a New Mexico state lawsuit”. Letter of February 15,2002 at page 3. As I understand the law, and the effect of the federal removal statutes, 28 U.S.C. §§1441et seq., a state case, upon removal and unless remanded, becomes a federal case. As the United States Supreme Court has explained “once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings”. Granny Goose Foods. Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437 (1974). The Supreme Court, also long ago, held that removal of state cases to federal court is not an “invasion of the sovereignty of a State.” Tennessee v. Davis, 100 U.S. 257,266-67 (1879). You apparently contend that these New Mexico state cases were improperly removed. Unless, however, you are successful in getting them remanded, they are federal cases to be decided under federal law, unless, again, you are successful in appeals in federal court. Once the federal decisions become final, New Mexico state courts are bound by the federal decisions under the Supremacy Clause of the United States Constitution.

I again thank you for your letter. Unfortunately, we still seem to be at odds as to what the governing law is.

Sincerely yours,

PAUL K. CHARLTON
Assisitant States Attorney
District of Arizona

RICHARD G. PATRICK

7 Patrick's statement

As I understand the law, and the effect of the federal removal statutes, 28 U.S.C. §§1441 et seq., a state case, upon removal and unless remanded, becomes a federal case.

Sec. 1441. - Actions removable generally states

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim

Second, judge Martha Vazquez ordered a stay of proceeding until results of the New Mexico court hearing were final. But this never occurred making removal improper.

Third, the court's credibility is at question

A The court does not follow its own rule by NOT allowing plaintiffs their due process.

B When the court ignore a vital request of interpretation of law. [Anti-injunction Act justification]

C The court cannot admit it is human and need to be corrected.

These have a chilling effect to the meaning of justice in our courts.

Harassment, replevin, defamation [libel] make the cases not removable from state to federal court.

And, of course, Sec. 1331. - Federal question states

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

New Mexico state laws against harassment IN WRITING.

8 Patrick's statement

As the United States Supreme Court has explained “once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings”. Granny Goose Foods. Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437 (1974). The Supreme Court, also long ago, held that removal of state cases to federal court is not an “invasion of the sovereignty of a State.” Tennessee v. Davis, 100 U.S. 257,266-67 (1879).

Summary of Granny Goose Foods is

Petitioner employers brought suit in California state court alleging that respondent Union was engaging in a strike in breach of collective bargaining agreements. The court issued a temporary restraining order on May 18, 1970. Two days later, the case was removed to federal court, and on June 4, the District Court denied the Union's motion to dissolve the restraining order. Strike activity then stopped, and the labor dispute remained dormant until the Union, after the petitioners had refused to bargain, resumed its strike on November 30, 1970. Two days later, the District Court, on petitioners' motion, held the Union in criminal contempt for violating the restraining order. The Court of Appeals reversed on the ground that the order had expired long before November 30, 1970, reasoning that, under both state law and Fed.Rule Civ.Proc. 65(b), the order expired no later than June 7, 1970, 20 days after its issuance, and rejecting petitioners' contention that the life of the order was indefinitely prolonged by 28 U.S.C. § 1450 "until dissolved or modified by the district court."

Tennessee v. Davis (1879)

Issue: Constitutionality of federal officer removal provisions, the antecedents to 28 USC § 1442(a)(1) Federal officer (a federal revenue agent seeking to seize an illegal still) indicted for murder in state courts and case removed to federal court

Federal government must have the power to protect itself in the exercise of its lawful powers. Martin v. Hunter’s Lessee

Patrick then writes

Unless, however, you are successful in getting them remanded, they are federal cases to be decided under federal law, unless, again, you are successful in appeals in federal court. Once the federal decisions become final, New Mexico state courts are bound by the federal decisions under the Supremacy Clause of the United States Constitution.

So, since Patrick's letters are not part of a judicial proceeding but an ex parte communication with plaintiffs , it therefore appears that Patrick's statements may violate Title 18 Chapter 47 FRAUD AND FALSE STATEMENTS

Sec. 1001. - Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

I again thank you for your letter. Unfortunately, we still seem to be at odds as to what the governing law is.

Patrick may be violating Title 18 criminal laws.

But plaintiffs continue to be conciliatory and pray these unfortunate matters are settled soon.

For the court to continue on this path without some attempt to negotiate or resolve these issue gives the appearance of stalling.

Stalling means delay justice. Delayed justice is just another term for injustice.

9 However, Rule 11(c) goes on to state

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

More than 21 days have elapsed since request was made.

Patrick must PUNISHED WITH THE HARSHEST OF FINANCIAL SANCTIONS to prevent the chilling effect of misuse of federal courts.

10 WHEREFORE sanction Assistant US Attorney Richard G Patrick for $300,000 for filing frivolous MOTION and associated MEMORANDUM.

Plaintiffs ask for $2,000 labor to prepare this filing.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 8, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

RESPONSE TO MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES

1 US Special Attorney Richard G Patrick writes

Chief Judge William F. Downes, by undersigned counsel, hereby moves pursuant to Fed. R. Civ. P. 12(b)(6), that this action, as to him, be dismissed for failure to state a claim upon which relief can be granted. 1 A Memorandum of Points and Authorities in support of this motion is filed herewith.

WHEREFORE, it is prayed that this motion be granted.

1 Movant specifically preserves his defense of insufficiency of service of process.

Fed. R. Civ. P. 12(b)(6) states

Rule 12. Defenses and Objections When and How Presented By Pleading or Motion - Motion for Judgment on the Pleadings

b) How Presented.

very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(6) failure to state a claim upon which relief can be granted,

(6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Since Patrick writes

1 Movant specifically preserves his defense of insufficiency of service of process. Rule 12(b)(5) states

(5) insufficiency of service of process,

Patrick's claim of insufficiency of service of process must be summarily rejected.

Judge Downes was properly served by a sheriff in New Mexico state lawsuit 01 cv 6293. 01cv 6293 was improperly removed to federal court and labeled federal Civil No. 01-1198.

This court does not have jurisdiction over New Mexico state lawsuit 01cv 6293.

Judges Benson and Parker were given opportunity to give justification for jurisdiction.

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

But Benson and Parker failed to give justification for jurisdication.

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Exhibit A. See arrows. New Mexico state lawsuit 01cv 6293 was for Complaint for Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

Harassment and perjury in New Mexico state court are not federal issues.

Patrick's argument motion to dismiss (6) failure to state a claim upon which relief can be granted, does not apply since complaint against Downes is in New Mexico state court.

Plaintiffs have made NO STATEMENT OF CLAIMS against Downes in federal court.

US special attorney Patrick harasses us using the federal court as instrument of harassment. This court does not have jurisdiction over New Mexico state issues of Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

2 This improperly removed lawsuit has its roots in New Mexico state lawsuit 00:CV:10289.

This lawsuit remains to this day as an active jury trial lawsuit in New Mexico.

New Mexico state lawsuit 00:CV:1028900 was improperly removed to federal court and labeled 01cv 1574.

Plaintiffs use word IMPROPERLY with authority.

Federal judge Martha Vazquez ORDERED 01cv 1574 stayed until outcome of New Mexico hearing was final!

12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10- 1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10]

Exhibit A.

Plaintiffs have continually been denied right to be heard in New Mexico state court. Money was taken from plaintiffs without due process.

US Attorney John J Kelly and US Assistant Attorney Manuel Lucero file ORDER OF GARNISHMENT for $1,793.56 signed by magistrate judge Don F Svet on April 20, 1999 against plaintiff Morales with no cause of action again him.

Judge Downes, presiding over improperly removed federal 1574, is instrumental in continuing the denial of due process before jury.

Downes has joined plaintiffs list of unacceptable acts of harassment.

3 WHEREFORE Patrick's MOTION must be rejected. Patrick's repeated appeal for judicial immunity for judge Downes is clearly frivolous for the reason that judge who commit state crimes are not doing so in their official capacities and must be REJECTED. Downes did and does not have jurisdiction in federal 1574. Downes and Parker were given opportunity to claim jurisdiction in 1574 but did not

8/30/01 08/30/01 47 NOTICE by plaintiff Arthur R Morales of non-compliance of Judge William Downes to provide anti injunction affidavit (sl) (302k)

Exhibit A.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico 87102
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

REPLY TO RESPONSE OF MICHAEL HOSES TO PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ASSISTANT US ATTORNEY MICHAEL HOSES FOR FILING DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

1 Assistant US Attorney Michael H. Hoses writes

In their motion for sanctions against Assistant U.S. Attorney Michael Hoses Plaintiffs complain that Assistant U.S. Attorney Michael Hoses violated D.N.M.LR-Civ. 83.4 when he filed a motion and memorandum to dismiss Defendant John W. Zavitz based on absolute immunity (Docs. Nos. 11 & 12). Plaintiffs’ motion for sanctions at 3.1 Undersigned counsel complied with D.N.M.LR-Civ. 83.4 when he filed the motion and memorandum to dismiss based on absolute immunity D.NM.LR-Civ. 83.4 provides:

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must:

• be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and

• sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney’s name, address, and telephone number.

Hoses' statement

• sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney’s name, address, and telephone number.

is not a federal rule but a state of New Mexico rule for entry of appearance.

LR2-117. Counsel of record; appearance; withdrawal.

A. Entry of appearance required. All counsel for a party, including state prosecutors and public defenders and counsel in appeals from metropolitan court, shall enter an appearance and shall do so either (1) by filing the party's initial pleading, criminal information or indictment, or delinquency petition, or (2) by filing an entry of appearance. Counsel shall promptly file notice of any change of address or telephone number and serve such notice on all other parties.

Hoses tries to deceive this court and plaintiffs by lying in writing.

The clause "and file a written entry of appearance" clearly requires a separate entry of appearance to be filed.

Therefore, Hoses convicts himself with his own writing.

Here's the local federal rules on entry of appearance.

Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in "An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear.

2 Hoses writes

Mr. Hoses complied with Local Rule 83.4 because he is eligible to appear in the United States District Court for the district of New Mexico since he is a member of the Federal Bar.2 and he signed the initial pleading filed on behalf o Defendant John W. Zavitz (the Notice of Removal, Doc. No. 1). Furthermore, Mr. Hoses included his name, address and telephone number in that initial pleading and every pleading filed subsequent to that pleading. No separate entry of appearance was necessary and the fact that a separate entry of appearance was not filed is immaterial. Further, Mr. Hoses was already the attorney of record for Defendant Zavitz at the time he filed the motion to dismiss.

Hoses statement

No separate entry of appearance was necessary and the fact that a separate entry of appearance was not filed is immaterial.

is false.

Hoses failed to comply with Federal local rules of civil procedure 83.4 when he failed to file entry of appearance.

2 Hoses writes

--------------------------------------------------------------------------------
1 It is interesting to note that Assistant U.S. Attorney Michael H. Hoses previously signed and filed a Noticeof Removal, Notice and Answer on behalf of Defendant Zavitz with no objections from Plaintiffs that D.N.M.LR-civ. 83.4 had been violated because no entry of appearance was filed.
--------------------------------------------------------------------------------

Plaintiffs most certainly objected to removal on the basis that this court done not have jurisdiction in state lawsuit.

Plaintiffs directed their concerns to judge Dee Vance Benson and James A Parker for improper removal by filing

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

and

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Exhibit A.  See arrows.

Plaintiffs are under no obligation to objections to Hoses, who has no standing in this improperly removed lawsuit

3 Hoses writes

Wherefore, Michael Hoses respectfully requests that this Court issue an Order denying Plaintiffs Motion for Sanctions, for costs incurred herein, and for such other and further relief as the Court may deem just and proper.

must be rejected as an improper conclusion based on Hoses' arguments made in his RESPONSE based on false statements.

4 WHEREFORE sanction Assistant US Attorney Michael Hoses an additional $200,000 for filing his RESPONSE.

Award plaintiffs $600 for having to REPLY to Hoses frivolous RESPONSE based on Hoses' false statements made before this court which does not have jurisdiction over original New Mexico state lawsuit.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

Federal Judge and trouble-
maker Martha Vázquez

JOHN ASHCROFT
United States Attorney General

RICHARD G. PATRICK
Special Attorney
Arizona State Bar No. 5148
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408
Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Arthur R. Morales and            CIV-O1-1 198 DVB
William H. Payne,
                                              MEMORANDUM OF POINTS
Plaintiffs,                                 AND AUTHORITIES IN
                                               SUPPORT OF MOTION TO
v.                                             DISMISS DEFENDANT CHIEF
                                                JUDGE WILLIAM F. DOWNES
John W. Zavitz; William F. Downes; and
French & Associates, P.C.,

Defendants.

Plaintiffs, in the above-captioned action, have named Chief Judge William F. Downes as a defendant and seek money damages from him in his individual capacity. Their claims for relief against Judge Downes are grounded in Judge Downes’ judicial rulings in two cases removed to federal court fromNew Mexico State courts. In those cases, CIV-00-01574 and CIV-0l-00634, plaintiffs argued to Judge Downes that the cases were improperly removed, should be remanded and that continued federal court retention ofjurisdiction violated the Anti-Injunction Statute (28 U.S.C. § 2283). Because Judge Downes disagreed with plaintiffs’ legal positions, plaintiffs sued him (and others) in New Mexico State Court. That case has been removed to this Court on October 16, 2001 and bears the above-captioned docket number. Because as a matter of undisputed fact and clear law Judge Downes’ judicial immunity bars this action as to him, he should be dismissed from this lawsuit.’

JUDICIAL IMMUNITY BARS PLAINTIFFS’ DAMAGE CLAIM FOR ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS

Judges are protected by an absolute immunity that was recognized at English common law. The Supreme Court adopted the immunity early in Bradley v. Fisher, 80 U.S. (12 Wall.) 335 (1872), explaining that judges must be protected from inhibiting damages suits because they frequently must determine “[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings *** [where] there is great conflict in the evidence and great doubt as to the law which should govern their situation.” Id. at 348. This immunity is a complete immunity from suit and not simply protection from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11(1991) (per curiam). Judges are protected by absolute immunity for judicial acts except when they act in the clear absence of jurisdiction. The Supreme Court has consistently adhered to that rule, observing that “‘Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.”’ Cleavingerv. Saxner, 474 U.S. 193,199(1985), [quotingPierson v. Ray, 386 U.S. 547, 553-54 (1967)]; see also, Dennis v. Sparks, 449 U.S. 24, 27 (1980).

The Court summarized the breadth and nature of the immunity in Cleavinger v. Saxner, 474 U.S. at 199-200 (citations omitted):

Such immunity applies “however erroneous the act may have been, and however injurious in its consequences [the judicial act] may have proved to the plaintiff.” *** “Nor can this exemption of the judges from civil liability be affected by the motives with which theirjudicial acts are performed.” *** And in Stump v. Sparkman, 435 U.S. 349 (1978), the Court once again enunciated this principle, despite any “informality with which [the judge] proceeded,” and despite any exparte feature of the proceeding.

“A judge will not be deprived of immunity because the action he took was in error was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when

There are two requisites inherent in the Supreme Court’s formulation of absolute judicial immunity: (1) that the challenged act be judicial in nature and (2) that it not be done in the absence of all jurisdiction. See Mire/es v. Waco, 502 U.S. at 11-12; Hunt v. Bennett, 17 F.3d 1263, 1266-67 (l0th Cir. 1994).

The factors determining whether a challenged act by a judge is a judicial one for purposes of immunity “relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. at 362. Judicial acts are those in which ajudge is “perform[ing] the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429,435-36(1993) (citation omitted). The inquiry thus goes to the nature and function of the act and not to the act itself. Mire/es v. Waco, 502 U.S. at 13. The judicial nature of ajudge’s act is not altered by virtue of an allegation of malice or corrupt motive. Forrester v. White, 484 U.S. 219,227(1988). Similarly, ajudge’s immunity is not pierced by allegations that he conspired with others to do an allegedly unlawful act so long as the act is within his judicial powers. Green v. Seymour, 59 F.3d 1073 (loth Cir. 1995); Crabtree v. Muchmore, 904 F2d 1475 (lOth Cir. 1990).

As to plaintiffs’ claims against Judge Downes, the gravamen of their complaint is their assertion that he had no jurisdiction to entertain the case upon removal. Complaint, 8. Furthermore, plaintiffs complain that Judge Downes ruled on matters before him “IId]espite repeated warnings in plaintiffs pleadings that [he] does not havejurisdiction”. Complaint, 9. Because of those alleged facts, “plaintiffs must believe that Downes is engaged in a conspiracy with defendants Zavitz and French & Associates to harass plaintiff (sic) using federal court”. Complaint, 9 2

As is demonstrated by the docket sheet in CIV-00-01574 and CIV-0l-00634, Judge Downes issued orders and ruled upon motions characterized as unfavorable by the plaintiffs.3 These acts were judicial in nature. Indeed, all of the actions of which plaintiffs complain may only be performed by judges. Moreover, Judge Downes’ actions also appeared judicial, supporting the obvious fact that plaintiffs believed they were dealing with the judge in his judicial capacity. The actions occurred by way of written orders andlor while the judge was on the bench. Given these circumstances, there is not doubt that plaintiffs dealt with Judge Downes in a judicial capacity and not, for example, as an employer or administrator.

Because the challenged actions were judicial in nature, the second inquiry for judicial immunity is whether the judge was wholly without jurisdiction to act in the premises. Under

3 The Court can and is requested to take judicial notice of the Clerk’s Docket Sheet in those proceedings. Van Woudenber v. Gibson, 211 F.3d 560, 568 (l0th Cir. 2000). On a motion to dismiss, the Court can judicially notice matters outside the pleadings. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994) (citing cases).

the Supreme Court’s formulation, “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. at 12. The notion of jurisdiction is thus broadly construed where the issue is the immunity of the judge. Stump v. Sparkman, 435 U.S. at 356. “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Id. at 356-57 (citation omitted). “Jurisdiction is construed broadly where the issue is the immunity ofajudge.” Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990).

The Court in Stump v. Sparkman, supra, referred to Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1872), to illustrate the want ofjurisdiction that would bar immunity:

In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate,judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence ofjuris diction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

435 U.S. at 357 n.7. Thus, if ajudge is colorably acting pursuant to the powers with which he is invested, he is not acting in the absence of all jurisdiction. For example, in Rolleston v. Fidridge, 848 F.2d 163, 164-65(1 lthCir. 1988), a state court trial judge who failed to follow procedural rules and who issued an order after the plaintiff had filed a notice of interlocutory appeal did not act in the clear absence of all jurisdiction. Similarly, a judge who issued a civil contempt order after a notice of appeal had been filed acted, at most, in excess of his jurisdiction but not in the clear absence of all jurisdiction. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). It must be apparent that under no circumstances would the judge have had authority to act in the manner that he did before immunity can be denied. Dellenbach v. Letsinger, 889 F.2d 755, 760 (7th Cir. 1989), cert. denied, 494 U.S. 1085 (1990).

To determine whether a judge has acted in complete absence ofjurisdiction, the Ninth Circuit, in Harvey v. Waidron, 210 F.3d 1008, 1012 (9th Cir. 2001) noted that

The Supreme Court has clearly held that as long as a judge has jurisdiction to perform the “general act” in question, he or she is immune “however erroneous the act may have been, ... however injurious in its consequences it may have proved to the plaintiff’ and irrespective of the judge’s motivation. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985); see Stump v. Sparkman ,435 U.S. 349, 356, 98 5. Ct. 1099, 55 L. Ed. 2cf 331 (1978) (holding that because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge” (citations, quotations and ellipses omitted)).

The “general act” which Judge Hernandez was performing in this case - the issuance of an ex parte order to destroy contraband at the request of the county — is a function that Judge Hemandez has jurisdiction to perform. Judge Hernandez is there ore immune from liability for the act of issuing the order, however erroneous the act may have been to Harvey and irrespective of Judge Hernandez’ claimed motivation. See Cleavinger, 474 U.S. at 199-200, 106 5. Ct. 496. The district court’s dismissal of the claim against Judge Hernandez based on judicial immunity was thus proper.

Thus, “a clear absence of all jurisdiction means a clear lack of all subject matterjurisdiction”.

Mullis v. U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1389 (9th Cir. 1987).

Here, plaintiffs’ claim that the case over which Judge Downes presided was improperly removed, was not subsequently remanded and, because it was not remanded, its continuation in federal court was violative of28 U.S.C. § 2283. Even if these assertions were true (which they are not), such claimed deficiencies would be judicial errors of law. The acts or omissions complained of “were judicial in nature and within the colorable jurisdiction” of the Court; accordingly, judicial immunity applies. Christensen v. Ward, 916 F.2d 1462, 1478 (lOth Cir. 1990); see also, Hunt v Bennett, 17 F.3d 1263, 1266 (lOth Cir. 1994). As the Tenth Circuit said under analogous circumstances in Crabtree v. Muchm ore, 904 F.2d 1475, 1477 (10th Cir. 1990), in response to plaintiffs’ contention that the defendant judge was not entitled to absolute judicial immunity because he lacked personal jurisdiction over their children:

If we accepted the Crabtrees’ theory, no judge could claim judicial immunity for his actions if he incorrectly determined that his court had personal jurisdiction over parties to a suit, or over persons who held an interest in property in which the court was adjudicating ownership at the behest of another. We hold that no attorney, charged with the responsibility of reading the Supreme Court’s decision in Stump v. Sparkman, 435 U.S. 349, 98 5. Ct. 1099, 55 L.Ed. 2d 331 (1978), and our opinion in Van Sickle v. Holloway, 791 F.2d 1431 (lOth Cir. 1986), could believe that absolute judicial immunity would not bar the action against Judge Cook.

Of course, Judge Downes did not err as alleged by plaintiffs. First, constitutional tort claims against federal actors are inherently federal questions claims under 28 U.S.C. § 1331. Switzer v. Coan, 261 F.3d 985, 988 (lOth Cir. 2001) (describing federal question jurisdiction as a “jurisdictional basis necessary for a Bivens claim”); Leavell v. Kieffer, 189 F.3d 492,495 (7th Cir. 1999). Removal of such actions against federal actors filed in state courts is

statutorily provided for in 28 U.S.C. § 1442. Christensen v. Ward, 916 F.2d 1462, 1483 (lOth Cir. 1990); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988). Indeed, the Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 391 n.4 (1971) recognized that such actions in state court would be removed to federal court under 28 U.S.C. § 1442. As the Supreme Court noted in Arizona v. Manypenny, 451 U.S. 232, 242 (1981), “the right of removal is absolute for conduct performed under color of federal office”. Finally, plaintiffs reliance on the Anti-Injunction Act, 28 U.S.C. § 2283, is wholly misplaced. The federal removal statutes themselves, at 28 U.S.C. § 1446(d), provide that upon compliance therewith the state court “shall proceed no further unless and until the case is remanded”. Accordingly, the Anti-Injunction Act itself permits the injunction since 28 U.S.C. § 1446(d) is an authorization “by Act of Congress”. 28 U.S.C. § 2283; Kansas Public Employees Retirement System v. Reimer & KogerAssociates, Inc., 77 F .3 d 1063, 1069 (8th Cir. 1996). If needed, the Anti-Injunction Act permits a district court to enjoin proceedings in a state case that has been removed to federal court. Peterson v. BMI

Refractories, 124 F.3d 1386, 1395(1 1th Cir. 1997); Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997).

Accordingly, because Judge Downes’ acts complained of by plaintiffs were judicial in nature and were done consistent with the Judge’s proper exercise of subject matter jurisdiction over the cases assigned to him, Judge Downes is immune from suit for damages and should be dismissed as a party-defendant. Mireles v. Waco, 502 U.S. 9 (1991); Christensen v. Ward, 916 F.2d 1462 (l0th Cir. 1990); Crabtree v. Muchmore, 904 F.2d 1475 (lOth Cir. 1990); Van Sickle v. Holloway, 791 F.2d 1431 (l0th Cir. 1986);Martinezv. Winner, 771 F.2d 424 (l0th Cir. 1985).

As noted by the Tenth Circuit in Snell v. Tunnell, 920 F.2d 673, 686-87 (lOth Cir. 1990):

The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory§19 83 itigation. Because the judicial system often resolves disputes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which re q uired him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (lOth Cir. 1989), prosecutors and witnesses. Cf Mitchell, 472 U.S. at 523, 105 S.Ct. at 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function.

The Court’s wisdom applies with full force as to this action against Judge Downes.

CONCLUSION

Based upon the foregoing analysis, dismissal of Judge Downes should be granted since plaintiffs, as to him, have failed to state claims upon which relief can be granted.

Respectfully submitted this 29th day of January, 2002.

JOHN ASHCROFT

United States Attorney General

Special Attorney
Original filed and copy of the foregoing
mailed this 29th day of January, 2002 ,to:

Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Christina E. Anaya
French & Associates, P.C.
500 Marquette, NW, Suite 600
Albuquerque, New Mexico 87102

Michael Hoses, AUSA
U.S. Attorney’s Office
201 Third Street, NW, Suite 900
Albuquerque, New Mexico 87102

JOHN ASHCROFT
United States Attorney General

RICHARD G. PATRICK
Special Attorney Arizona State Bar No. 5148
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408
Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

William H. Payne, CIV-Ol-1132 DVB
Plaintiff,                                                    MEMORANDUM OF POINTS
v.                                                             AND AUTHORITIES IN
                                                               SUPPORT OF MOTION TO
Phyllis A. Dow, William F. Downes; and  DISMISS DEFENDANT CHIEF
Rodey, Dickason, Sloan, Akin & Robb,   JUDGE WILLIAM F. DOWNES
P.A.,

Defendants.

Plaintiff, in the above-captioned action, has named Chief Judge William F. Downes as a defendant and seeks money damages from him in his individual capacity. His claims for relief against Judge Downes are grounded in Judge Downes’ judicial rulings in two cases removed to federal court fromNew Mexico State courts. In those cases, CIV-00-01677 and CIV-0l-00634, plaintiff argued to Judge Downes that the cases were improperly removed, should be remanded and that continued federal court retention ofjurisdiction violated the Anti-Injunction Statute (28 U.S.C. § 2283). Because Judge Downes disagreed with plaintiffs legal positions, plaintiff sued him (and others) in New Mexico State Court. That case has been removed to this Court on September 28, 2001 and bears the above-captioned docket number. Because as a matter of undisputed fact and clear law Judge Downes’ judicial immunity bars this action as to him, he should be dismissed from this lawsuit. 1

1 To the extent plaintiff s claims against Judge Downes are characterized as common law tort claims, rather than constitutional tort claims, the result will be the same. For such claims the United States will substitute itself for Judge Downes pursuant to 28 U.S.C. § 2679(d), which immunizes Judge Downes from liability under 28 U.S.C. § 2679(b)(l). Salmon v. Schwarz, 948 F.2d1131, ll41-42(10thCir. 1991);Christensen v. Ward, 916F.2d 1462, 1472 (l0thCir. 1990); Sanders v. Williams, 160 F. Supp. 2d 1191 (D.Col. 2001.)

JUDICIAL IMMUNITY BARS PLAINTIFF’S DAMAGE CLAIM FOR
ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS

Judges are protected by an absolute immunity that was recognized at English common law. The Supreme Court adopted the immunity early in Bradley v. Fisher, 80 U.S. (12 Wall.) 335 (1872), explaining that judges must be protected from inhibiting damages suits because they frequently must determine “[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings *** [where] there is great conflict in the evidence and great doubt as to the law which should govern their situation.” Id. at 348. This immunity is a complete immunity from suit and not simply protection from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11(1991) (per curiam). Judges are protected by absolute immunity for judicial acts except when they act in the clear absence of jurisdiction. The Supreme Court has consistently adhered to that rule, observing that “‘Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.”’ Cleavingerv. Saxner, 474 U.S. 193, 199 (1985), [quoting Pierson v. Ray, 386 U.S. 547,553-54 (1967)]; see also, Dennis v. Sparks, 449 U.S. 24, 27 (1980).

The Court summarized the breadth and nature of the immunity in Cleavinger v. Saxner, 474 U.S. at 199-200 (citations omitted):

Such immunity applies “however erroneous the act may have been, and however injunous in its consequences [the judicial act] may have proved to the plaintiff.” *** “Nor can this exemption of the judges from civil liability be affected by the motives with which theirjudicial acts are performed.” *** And in Stump v. Sparkman, 435 U.S. 349 (1978)’ the Court once again enunciated this principle, despite any “informality with which [the judge] proceeded,” and despite any exparte feature of the proceeding.

“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Stump v. Sparkman, 435 U.S. 349, 3 56-57 (1978) (citation omitted). Unfairness or injustice to a litigant resulting from application of the immunity cannot preclude it. Mireles v. Waco, 502 U.S. at 10. Similarly, judicial immunity will not be defeated by allegations that a judge acted in conspiracy with private individuals who are not immune and who sought to bribe him, so long as the judge did not act in the absence of all jurisdiction with respect to the challenged conduct. See Holloway v. Walker, 765 F. 2d 517, 522-23 (5th Cir.), cert. denied, 474 U.S. 1037 (1985). As these authorities demonstrate, “The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection ofjudicial power.” McCray v. State of Maryland, 456 F.2d 1, 3 (4th Cir. 1972).

There are two requisites inherent in the Supreme Court’s formulation of absolute judicial immunity: (1) that the challenged act be judicial in nature and (2) that it not be done in the absence of all jurisdiction. See Mire/es v. Waco, 502 U.S. at 11-12; Hunt v. Bennett, 17 F.3d 1263, 1266-67 (lOth Cir. 1994).

The factors determining whether a challenged act by a judge is a judicial one for purposes of immunity “relate to the nature of the act itseW i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. at 362. Judicial acts are those in which ajudge is “perform[ing] the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429,435-36(1993) (citation omiffed). The inquiry thus goes to the nature and function of the act and not to the act itself. Mire/es v. Waco, 502 U.S. at 13. Thejudicial nature of ajudge’s act is not altered by virtue of an allegation of malice or corrupt motive. Forrester v. White, 484 U.S. 219, 227 (1988). Similarly, a judge’s immunity is not pierced by allegations that he conspired with others to do an allegedly unlawful act so long as the act is within his judicial powers. Green v. Seymour, 59 F.3d 1073 (loth Cir. 1995); Crabtree v. Muchmore, 904 F2d 1475 (lOth Cir. 1990).

As to plaintiffs claims against Judge Downes, the gravamen of his complaint is his assertion that Judge Downes had no jurisdiction to entertain the case upon removal. Complaint, 8, 9. Furthermore, plaintiff complains that Judge Downes ruled on matters before him despite “numerous requests to remand”. Complaint, 9. Because of those alleged facts, “Downes continues to conspire with Dow and Rodey, Dickason, Sloan, Akin & Robb to harass plaintiff’. Complaint, 9•2

As is demonstrated by the docket sheet in CIV-OO-01677 and CIV-Ol-00634, Judge Downes issued orders and ruled upon motions characterized as unfavorable by the plaintiff.3 These acts werejudicial in nature. Indeed, all of the actions of which plaintiff complains may only be performed by judges. Moreover, Judge Downes’ actions also appeared judicial, supporting the obvious fact that plaintiff believed he was dealing with the judge in his judicial capacity. The actions occurred by way of written orders and/or while the judge was on the bench. Given these circumstances, there is not doubt that plaintiff dealt with Judge Downes in a judicial capacity and not, for example, as an employer or administrator.

Because the challenged actions were judicial in nature, the second inquiry forjudicial immunity is whether the judge was wholly without jurisdiction to act in the premises. Under the Supreme Court’s formulation, “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. at 12. The notion of jurisdiction is thus broadly construed where the issue is the immunity of the judge. Stump v. Sparkman, 435 U.S. at 356. “A judge will not be deprived of immunity

2 Plaintiff also complains that Judge Downes tried to “intimidate” him regarding communication with the Court via the internet. Complaint, 8. Plaintiff apparently refers to Judge Downes’ July 23,2001 Order on Ex Parte Communication in CIV-OO-00634. That order was wholly consistent with Canon 3.A(4), Code of Conduct For United States Judges (“A judge should ... neither initiate nor consider ex parte communications on the merits or procedures affecting the merits, of a pending or impending proceeding”). Byrequiring that communication with the Court comply with the Court’s Local Rules and Federal Rules of Civil Procedure, Judge Downes protected, rather than violating, plaintiffs constitutional rights. See, LB. v. Washington County, 127 F.3d 919,926 (lOth Cir. 1997). The exercise of control over that which reaches the Court is, of course, a judicial act. Martinez v. Winner, 771 F.2d 424, 434 (lOth Cir. 1985).

3 The Court can and is requested to take judicial notice of the Clerk’s Docket Sheet in those proceedings. Van Wouden berg v. Gibson, 211 F.3d 560, 568 (lOth Cir. 2000). On a motion to dismiss, the Court can judicially notice matters outside the pleadings. Henson v. CSC r~a;t .S’ort’irp(’ 9Q P 3d 9RO~ 2R4 (7th Cir. 1994) (citing cases).

because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Id. at 356-57 (