SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
CASE NUMBER CV-200106293
Arthur R Morales
William H Payne
Plaintiffs
v
John J Zavits
William F. Downes
French & Associates
PC
Defendants
Complaint for Relief from CONSPIRACY OF HARASSMENT AND PERJURY Wednesday April 3, 2002 13:49
Here arethe finalS.
An observer asked Payne if magistrate judge Don Svet was still working at federal court.
The answer is "yes." And says a lot about judge James A Parker.
Patrick is trying out of his problem by using a technicality. Words
ESSENTIAL MATERIAL FACTS
are very important in court matters and may get Patrick.
Along with the fact that judge Dee Vance Benson doesn't have jurisdiction!
Judge Downes rulings, which may have been written by Parker, when he didn't have jurisdiction is what got him sued.
Downes may have been misinformed by Parker.
Settlement is, of course, the best way out of these matter for the feds and state. All of the evidence of defendants guilt is in writing. Thursday March 28, 2002 13:46
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FOR THE DISTRICT OF NEW MEXICO ARTHUR R. MORALES AND Plaintiffs v Civil No. 01-1198 Dee Vance Benson JOHN J ZAVITZ, WILLIAM F. DOWNES, and 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. is false. Contrary to Patrick's statement plaintiffs motion is procedurally and substantively flawed Plaintiffs' motion exactly follows procedures required Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637, 640 (D. N.M. 1999). 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. Plaintiffs follow this rule by filing their collateral motion for sanctions as required by Rule 11. 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 "safe harbor" provision, Rule 11 1993 Ammendment, states 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. Plaintiffs did this. 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 partys 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.Plaintiffs did both file a motion and give Patrick opportunity to withdraw. 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)Further Notice given: 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 Courts ruling on my motions to dismiss. and then again in his February 22, 2000 [Exhibit C] reasserts Accordingly, at this point, I do not believe that settlement discussion is my client's best interests. Patrick boldly ignore plaintiffs' request to withdraw motion. Patrick continue to hope that this Court, judge Dee Vance Benson, will rule, rather than remand, a New Mexico state case which was improperly removed to federal court. 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. is again 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.. 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. must be denied. And Patrick be sanctioned to the fullest extent under the law for attempting to get this court to improperly rule on a motion to dismiss New Mexico state cases of harassment, replevin, and defamation [libel]. 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 William H. Payne I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 28, 2002 to Richard G Patrick French and Associates, P.C. Michael H Hoses W. John Brennan Patricio Serna James A Parker William F. Downes Judge Dee Vance Benson |
Morales and Payne now get to file a reply to Patrick's response. This, too, must be done within 14 days.
We'll have to look up Pendleton. Reason is that lawyers irrelevant case or a case does not support point to be made.
Note the attempted reliance on the 10th circuit. The tenth circuit was used to extort a cheap settlement from Hispanic FBI agents.
| 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 DISTRICT OF NEW MEXICO
John W. Zavitz; William F. Downes; and 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 William H. Payne Christina E. Anaya Michael Hoses, AUSA |
We're going to have to add all of the defendants in each lawsuit to the lists.
Morales and Payne must try to get both the state and federal legal systems moving.
Discovery is a great way to do this!
V. DEPOSITIONS AND DISCOVERY ADVISORY COMMITTEES EXPLANATORY STATEMENT CONCERNING 1970 AMENDMENTS OF THE DISCOVERY RULES
This statement is intended to serve as a general introduction to the amendments of Rules 2637, concerning discovery, as well as related amendments of other rules A separate note of customary scope is appended to amendments proposed for each rule. This statement provides a framework for the consideration of individual rule changes.
CHANGES IN THE DISCOVERY RULES
The discovery rules, as adopted in 1938, were a striking and imaginative departure from tradition. It was expected from the outset that they would be important, but experience has shown them to play an even larger role than was initially foreseen. Although the discovery rules have been amended since 1938, the changes were relatively few and narrowly focused, made in order to remedy specific defects. The amendments now proposed reflect the first comprehensive review of the discovery rules undertaken since 1938. These amendments make substantial changes in the discovery rules. Those summarized here are among the more important changes.
Scope of Discovery. New provisions are made and existing provisions changed affecting the scope of discovery: (1) The contents of insurance policies are made discoverable (Rule 26(b)(2)). (2) A showing of good cause is no longer required for discovery of documents and things and entry upon land (Rule 34). However, a showing of need is required for discovery of trial preparation materials other than a partys discovery of his own statement and a witness discovery of his own statement; and protection is afforded against disclosure in such documents of mental impressions, conclusions, opinions, or legal theories concerning the litigation. (Rule 26(b(3)). (3) Provision is made for discovery with respect to experts retained for trial preparation, and particularly those experts who will be called to testify at trial (Rule 26(b)(4)). (4) It is provided that interrogatories and requests for admission are not objectionable simply because they re. late to matters of opinion or contention, subject of course to the supervisory power of the court (Rules 33(b), 86(a)). (5) Medical examination is made available as to certain nonparties. (Rule 35(a)).
Mechanics of Discovery. A variety of changes are made in the mechanics of the discovery process, affecting the sequence and timing of discovery, the respective obligations of the parties with respect to requests, responses, and motions for court orders, and the related powers of the court to enforce discovery requests and to protect against their abusive use. A new provision eliminates the automatic grant of priority in discovery to one side (Rule 26(d)). Another provides that a party is not under a duty to supplement his responses to requests for discovery, except as specified (Rule 26(e)).
Other changes in the mechanics of discovery are designed to encourage extrajudicial discovery with a minimum of court intervention. Among these are the following: (1) The requirement that a plaintiff seek leave court for early discovery requests is eliminated or reduced, and motions for a court order under Rule 24 made unnecessary. Motions under Rule 35 are continued. (2) Answers and objections are to be served together an enlargement of the time for response is provided. ...
Federal Civil Judicial Procedure and Rules 1991 Revised Edition, West Publishing Company
And its really fun to write admissions[yes/no responses], interrogatories [short answers], and production of audio, video, electronic media, notes, documents, etc.
Here are the first drafts.
We are submitting one for each of the five federal lawsuits. And for the two open state lawsuits. Saturday March 16, 2002 09:35
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FOR THE DISTRICT OF NEW MEXICO ARTHUR R. MORALES AND Plaintiffs, v Civil No. 01-1198 Dee Vance Benson JOHN J ZAVITZ, WILLIAM F. DOWNES, and Defendants. DISCOVERY PLAN 1 As this court may know
and
However, Local Rule 26.4 Timing of Discovery and Initial Disclosures states
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
Respectfully submitted, Arthur R. Morales William H. Payne I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 18, 2002 to Richard G Patrick French and Associates, P.C. Michael H Hoses W. John Brennan Patricio Serna James A Parker William F. Downes Judge Dee Vance Benson |
| SECOND JUDICIAL DISTRICT COURT COUNTY OF BERNALILLO STATE OF NEW MEXICO civ - 2000 10289 Arthur R Morales Plaintiffs v Robert J Gorence Defendants DISCOVERY PLAN 1 As the court may realize from RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS 1-026. General provisions governing discovery.and LR2-602. Settlement facilitation program.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. Respectfully submitted |
Here's what was filed on Friday.
Let's hope some finally see the merits of settlement before this get worse. Monday March 11, 2002 09:50
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FOR THE DISTRICT OF NEW MEXICO ARTHUR R. MORALES AND Plaintiffs, v Civil No. 01-1198 Dee Vance Benson
JOHN J ZAVITZ, WILLIAM F. DOWNES, and Defendants. MOTION AND MEMORANDUM OF SUPPORT FOR SANCTIONS AGAINST ASSISTANT UNITED STATES ATTORNEY RICHARD G PATRICK FOR FAILURE TO WITHDRAW MOTION AND MEMORANDUM TO DISMISS MOTION 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. MEMORANDUM 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)Exhibit A, docket entry 24. 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)and judge Dee Vance Benson were asked to provide Anti-Injunction act 28 USC Sec. 2283justification for removal of case from state to federal court. Exhibit A, docket entry 9. 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)Parker and Benson provide no justification for removal of case involving harassment and replevin from state to federal court. Exhibit A, docket entry 16. 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)No response means affirmation to plaintiffs' pleading that there is no jufication for removal under the anti-injuction act. 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.Assistant US Attorney Patrick and attorney general Ashcroft submitted frivolous MOTION TO DISMISS and associated MEMORANDUM to judge Dee Vance Benson who does not have jurisdiction in case for harassment, replevin and defamation [libel]. 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 11,2002Plaintiffs respond to Patrick to explain the errors in his thinking. Exhibit C. Friday 2/15/02 12:53 PMExhibit D. 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, 2002Exhibit E. 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.appears not only to be incorrect, but frivolous. 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.First, of course, any removable case must meet the qualifications set forth by the Anti-injunction act. 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 StatesHarassment, replevin, defamation [libel] are not federal questions. Defendant judge Downes merely broke 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).is misleading. 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."And Tennessee v Davis summary is Tennessee v. Davis (1879)This makes it appear that Patrick is citing a case which has nothing to do with removal of a New Mexico state lawsuit for harassment, replevin, and defamation [libel] to federal court. Further defendant Downes has been caught TWICE IN WRITING violating his "lawful powers." 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.which is a deliberate malicious and frivolous attempt to deceives plaintiffs. Benson has no jurisdiction under the Anti-injunction Act. 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 generallyPatrick concludes I again thank you for your letter. Unfortunately, we still seem to be at odds as to what the governing law is.The law is quite clear. 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.Patrick and Ashcroft were given opportunity to withdraw their MOTION and associated MEMORANDUM. 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 William H. Payne I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 8, 2002 to Richard G Patrick French and Associates, P.C. Michael H Hoses W. John Brennan Chief District Judge, Division XIV Patricio Serna James A Parker William F. Downes Judge Dee Vance Benson http://www.geocities.com/CapitolHill/Congress/8327/ |
Morales and Payne decided to respond to both of Patrick's LONG filings for dismissal by short filings.
Judge Dee Vance Benson doesn't have jurisdiction.
We asked all judges to give us an affidavit to show why they did have jurisdiction. We got no response. So we filed out affidavits that judges Parker, Benson, and Downes didn't respond. And sued Downes twice, of course, in New Mexico state court.
We will research all legal citations in Patrick two filings when we move for Rule 11 sanctions for his two frivolous filings. They are frivolous because Patrick is filing in a federal court which does not have jurisdiction. Wednesday February 13, 2002 09:02
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THE UNITED STATES DISTRICT COURT ARTHUR R. MORALES AND Plaintiffs, v Civil No. 01-1198 Dee Vance Benson JOHN J ZAVITZ, WILLIAM F. DOWNES, and 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. 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 Since Patrick writes 1 Movant specifically preserves his defense of insufficiency of service of process. Rule 12(b)(5) states 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 William H. Payne I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to French and Associates, P.C. Michael H Hoses W. John Brennan Patricio Serna James A Parker William F. Downes http://www.geocities.com/CapitolHill/Congress/8327/ |
Here's the draft of the REPLY to Hoses' RESPONSE
We're updating as Morales phones in changes!
We like, and respect the problems with, high tech computer stuff. 1
While what we're doing is hopefully going to result in a legal disaster for the feds, there is another interesting potential disaster we should all be aware of.
Japan Inc. may go bankrupt!
Then, too, is the NASDAQ.
And the microcontroller IP core meltdowns.
Let's all hope these unfortunate matters get settled so the feds can concentrate on other issues. Tuesday February 12, 2002 11:50
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THE UNITED STATES DISTRICT COURT ARTHUR R. MORALES AND WILLIAM H. PAYNE, Plaintiffs, v Civil No. 01-1198 Dee Vance Benson JOHN J ZAVITZ, WILLIAM F. DOWNES, and 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: Hoses' statement sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorneys 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. 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. 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 -------------------------------------------------------------------------------- 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 William H. Payne I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to French and Associates, P.C. Michael H Hoses W. John Brennan Patricio Serna James A Parker William F. Downes http://www.geocities.com/CapitolHill/Congress/8327/ |
As we know chief Utah judge Dee Vance Benson does not have jurisdiction. We've established this by affidavit.
Judges Parker and Benson, along with judge Downes were warned.
Of course, Downes got sued twice because he didn't heed the warning and ruled twice when he had no jurisdiction..
Ashcroft and Patrick have been warned, as required by Rule 11, to remove the below motion.
Ashcroft and Patrick are harassing Morales and Payne by making them respond to a motion in a State of New Mexico lawsuit which was improperly re/moved to federal court.
Federal judge Martha Vázquez agreed our lawsuit must first be heard in New Mexico state court.
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Also, the original state lawsuit is still listed as an active jury trial lawsuit.
The reason they removed the case to federal court is that the feds believe that they have judge Benson under their control. This may or not be true. We will all see.
The citations in the Ashcroft/Patrick filing look so interesting, that we may have to look them all up. A lawyer ploy is to make false reliance on citation hoping the opposition won't look them up.
But since we will be doing a Rule 11 sanction violation on Patrick, we will look up the citations.
Note the frivolous "insufficiency of process." Defendants were served in state court. Patrick may claim that they we're served properly in federal court! Only a lawyer would think of this. Wednesday February 6, 2002 10:49
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RICHARD G. PATRICK UNITED STATES DISTRICT COURT 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.
To the extent plaintiffs claims against Judge Downes are characterized as common law tort claims, rather than constitutional tort claims ,tlie 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.2d 113, 1141-42 (10thCir. l99l);Christensen v. Ward, 916F.2d 1462, 1472 (l0thCir. 1990); (continued ...) 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
1 (....continued) Sandersk v Williams 160 F. Supp. 2d 1191 (D.Col. 2001.) he has acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (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. Mc Cray v. State of Maiyland, 456 F.2d 1, 3 (4th Cir. 1972). There are two requisites inherent in the Supreme Courts 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 ajudges act is not altered by virtue of an allegation of malice or corrupt motive. Forrester v. White, 484 U.S. 219,227(1988). Similarly, ajudges 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
2 Plaintiffs also complain that Judge Downes tried to intimidate plaintiff Payne regarding communication withthe Court via the internet. Complaint, 9. Plaintiffs apparently refer to Judge Downes July 23, 2001 Order on Ex Parte Communication in CIV-00-00634 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 p roceeding). By requiring that communication with the Court comply with the Courts Local Rules and Federal Ru es o 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 overthat which reaches the Court is, of course, ajudicial 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 Clerks 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 Courts 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 judges 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 judges jurisdiction must be construed broadly where the issue is the immunity of the judge (citations, quotations and ellipses omitted)). 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 Courts 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 Judges 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 systems ability to function. The Courts 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 Arthur R. Morales William H. Payne Christina E. Anaya Michael Hoses, AUSA |
Looks like Patrick and Ashcroft are trying to put-up a diversion. Another lawyer ploy.
The real issues are the documents http://www.nmol.com/users/billp/ http://members.home.net/bpayne37/nmol/nmolindex.htm and the money illegally taken from Morales and Payne. It's important to keep focused. Wednesday February 6, 2002 09:41
Hoses response is dated January 31, 2002.
By federal rule you have 10 days plus 3 plus day if response mailed, any holidays to respond. But local rule states you have 14 days.
It's always a good idea to be timely.
We are entitled to a REPLY to a RESPONSE.
Hoses takes a different approach than the French law firm which belated filed an Entry of Appearance.
Let's see what works. Tuesday February 5, 2002 15:24
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JOHN ASHCROFT RICHARD G. PATRICK UNITED STATES DISTRICT COURT William H. Payne, CIV-Ol-1132 DVB 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 PLAINTIFFS
DAMAGE CLAIM FOR 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 Courts 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 ajudges 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 judges 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, 92 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 Courts 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 Courts 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 Clerks 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 .Sortirp( 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 ( |