Pierre Genevier

423 E 7th  street (RM 528)

Los Angeles, CA 90014

Ph.: (213) 622-1508

Emails: p_genevier@yahoo.com, pierre.genevier@laposte.net

 

 

United States District Court

For the Central District of California

Western Division

 

Pierre Genevier                                             | DC No: CV 05-7517 MMM (Plax)

Plaintiff                    |

V.                       | Notice of Motion and

| Motion to Reconsider Order

Eduardo Aguirre et Al.                                   | dated 01/30/06

|  [FRCP 60 (b), FRCP 59]

                               Defendants            |  Date: 04/17/06

                                                                   |  Time : 10:00 AM

Honorable Judge Morrow Court Room 780

 

To defendant Los Angeles County and to its attorney of record:

Please take notice that on 04/17/06 at 10:00 AM the undersigned will move this Court at Judge Morrow Court Room, United States District Court House, Roybal Federal Building, 255 E. Temple Street, Los Angeles CA 90012, for an order reconsidering the order denying the motion for preliminary injunction dated January 30 2006 (entered on February 1 2006).  This motion is made on the grounds that:

1_ Plaintiff - pro se- made an excusable neglect when did not attach (or adduce) to his motion the evidences or exhibits justifying the likelihood of success on the merits because they were already attached to (or described in) the complaint (he thought the court would base its evaluation on the complaint, and did not want overload the court with the same papers or attachments).  

2_ The District Court is presented with a newly discovered evidence (a case People v. Sims) that explains why the plaintiff’s refugee status was confirmed by the DHS Nebraska Refugee Center (and why plaintiff refugee status is now unquestionable).

3_ The Court made mistakes in its decision (in relating facts, ignored facts,).

4_The judgment is clearly against the weigh of evidences as to constitute a miscarriage of justice.

This motion will be based on the notice of motion and motion, the following memorandum of points and authorities filed herewith, and several attached exhibits (and the complaint).  It is urgent, an ex parte will be filled to hear the motion on March 13 2006 (if possible).

Dated:  February      , 2006

By:________________

Pierre Genevier

Memorandum of Points and Authorities.

I Statement of facts.

 On October 19 2005, plaintiff filed a complaint for deprivation of civil rights, conspiracy to interfere with civil rights, conspiracy to defraud and negligence against defendant Los Angeles County and various other defendants.  Defendant Los Angeles County filed a motion to dismiss on December 23 2005 (that is not appropriate, so plaintiff filed an timely opposition + an opposition supplement).  Plaintiff also filed a motion for preliminary injunction that was denied on January 30 2006 (order entered on February 1 2006).  Plaintiff files now this motion for reconsideration of the order denying the preliminary injunction because 1) Plaintiff - pro se- made an excusable neglect when did not attach (or adduce) to his motion the evidences or exhibits justifying the likelihood of success on the merits because they were already attached to (or described in) the complaint (he thought the court would base its evaluation on the complaint, and did not want overload the court with the same papers or attachments);  2) The District Court is presented with a newly discovered evidence (a case People v. Sims) that explains why the plaintiff refugee status was confirmed by the DHS Nebraska Refugee Center (and why plaintiff refugee status is unquestionable); 3) The Court made mistakes in its decision; and 4) The judgment is against the weigh of evidence as to constitute a miscarriage of justice.

[This motion is filed within the 10 days of the entering of the order, and is therefore timely.  It is also urgent, so an ex parte motion will be filed to hear the motion to 3-13-2006 (if possible).] 

 

II An excusable neglect, and a newly discovered evidence.

          The order denying the preliminary injunction explained that plaintiff did not establish the likelihood of success on the merit because he failed to adduce - in his motion for preliminary injunction- the evidence that his refugee status was confirmed several times, and that he was entitled to the refugee benefits he is asking for, but these evidences were presented in the complaint and plaintiff did not want repeat arguments or attached documents already included in the complaint in order not to make the file even bigger. He will correct this excusable neglect and refers to the evidences that his refugee status was confirmed, and is unquestionable below. 

Plaintiff will also present to the court a newly discovered evidence

[that he could not have presented when he wrote his injunction pleadings] - a case, People v.

Sims that explains why the refugee status was confirmed by the DHS

refugee center and why plaintiff refugee status is now unquestionable.

 

          A The likelihood of success on the merits.

          To evaluate the likelihood of success on the merits of this case, one must ascertain that plaintiff’s refugee status was confirmed by the appropriate authority, and that plaintiff is entitled to the refugee benefits he says he was deprived of by the LA County (and indirectly by other defendants) as the court pointed out in its order.  The evidences (ascertaining that plaintiff refugee status was confirmed several times, and that plaintiff was entitled to the benefits) were presented in the complaint even though they were not adduced in the motion for preliminary injunction as the court can see below.                 

         

1) Plaintiff refugee status and the various confirmation of his refugee status.

The INS status verifier issued (to Plaintiff) a verification of status listing him as a refugee on September 5 2002 (see comp. exh. 1.1,  exh. 1.1). Then Mr. Lemons (DPSS Metro north supervisor and defendant in this case) questioned the validity of this verification of status on December 1 2002 to deny plaintiff the refugee benefits (see comp. exh. 2.3, exh. 2).  So this issue of plaintiff refugee status (and of the validity of the initial verification of status) was an issue of plaintiff’s first administrative complaint (or request for hearing); and it was addressed by Administrative Law Judge Tolentino during the hearing of 12-30-2002, and in his decision dated February 5 2003 (see comp. Exh 3.1, Exh. 3.1).  Judge Tolentino unequivocally determined that plaintiff was granted asylum (was a refugee) and that the initial verification of status was a valid document (see decision exh 3.1 on page 6). 

Within 30 days of this decision, plaintiff filed a request for a rehearing to have a confirmation that the certification of Judge Tolentino was conformed to the law (he also addressed various other issues).  And Mr. Campbell unequivocally confirmed that Judge Tolentino’s decision (including his certification of the refugee status) was conformed to the California law (see exh. 5 and comp. exh. 3.2).  The defendant LA County never filed a rehearing request or a petition at the Superior Court concerning this issue (or any other issue in fact), but it did argue in its compliance report (see exh. 3 and 4 ) that plaintiff was not a refugee, and therefore that he was not entitled to the various refugee benefits granted by Judge Tolentino, which was very dishonest and illegal (and lead to most of plaintiff injury).  Judge Tolentino’s decision became final on February 5 2004, and since the LA County did not file a rehearing request or a petition at the Superior Court [and the INS never questioned it either] plaintiff’s refugee status became unequivocally confirmed on this date 2-5-2004. 

 

This fact is stressed in the newly discovered evidence presented to the court -the case People v. Sims which concluded that a California DSS administrative law judge decision prevented a county from re-litigating an issue addressed in a DSS administrative proceeding in a criminal proceeding [‘for purpose of rule under collateral estoppel doctrine that only issue actually litigated in an initial proceeding may preclude from second proceeding, where such issue was properly raised by recipient’s request for a fair hearing (Welf & Int. Code 1050), where the controversy  was submitted to the state agency for determination on the merits, and where the hearing officer found the county had failed to prove the recipient fraudulently obtained welfare benefits. The county failure to present evidence at the hearing did not preclude the fraud issue from being submitted and determined.].  Again judge Tolentino had the jurisdiction to evaluate the evidences that were presented to him concerning plaintiff’s refugee (immigration) status (this was mentioned in the INS SAVE legal documentation), he did address this issue, and ruled that plaintiff was granted asylum (was a refugee), so the LA County (or any other defendant in this case) cannot successfully argue that plaintiff is not a refugee (in this proceeding or even in a criminal proceeding).

         

Finally, the confirmation of plaintiff refugee status made by Judge Tolentino was also confirmed by the DHS Nebraska Refugee Center when it issued a ‘refugee employment authorization card’ (code A3 see comp. exh. 1.2 and ths doc exh. 5).  This refugee employment authorization card (A3) was only issued after Judge Tolenitno’s decision became final because, as the Court could read in the complaint no 36 (comp. page 7), it appears that the INS computer record listing plaintiff as a refugee was corruptly altered between November 14 to December 1 2002 [after this fraud took place the DHS could only rely on the written documentation -plaintiff initial verification of status and the DSS administrative court confirmation of the document; it did accept plaintiff certification made under the penalty of perjury under law that he is a refugee in 2003, but issued the refugee card in 2004 after judge Tolentino’s decision became final and plaintiff refuge status became unquestionable]. [The court will note that the INS or USCIS was informed of Judge Tolebntino’s decision and that it never criticized it (it is only few INS or DHS employees that lied and pretended that plaintiff was not a refugee without following the appropriate procedure to do so)],

 

This issue of plaintiff refugee status is therefore a ‘serious question’ in the sense that plaintiff has ‘a fair chance of success on the merits’, and the court can see that all the evidences (justifying that plaintiff refugee status was confirmed several times) were presented in the complaint.  Plaintiff asks defendant LA County to admit this important conclusion, and to correct the DPSS error that lead to many problems (by paying the refugee benefits immediately).  

 

 

2)    Plaintiff entitlement to the refugee benefits he asks for.

As the court will be able to read in the complaint (comp. p 5 no 30), the DPSS stopped to pay the refugee benefits (RCA cash benefits) on December 1 2002, just 2 month after it started to pay them (and instead of paying them for 8 months after the refugee status was granted), [and the catholic charity refused to give the housing assistance on September 25 2002 (comp. p. 5 no 30)].  Because every refugee or asylee is entitled to 8 months in a row of RCA (cash benefit), food stamp, housing assistance, and medical protection, plaintiff filed a request for hearing at the DSS State Hearing section, and asked to be paid these benefits.  [He also explained that the allegation that he was not a refugee was wrong and described the steps he took to obtain the date his asylum was granted and to have his case close at the immigration court. As seen above]

 

In February 5 2003, Judge Tolentino asked the DPSS to pay 8 months of refugee benefits (RCA, food stamp, medical), ‘effective the date his asylum is granted’ [and to ‘credit  (to add) to the 8 months limitation the RCA benefits already provided to the claimant’; meaning that the benefits paid as aid paid pending and during 2 months from September to December 2003, should not be deducted (or subtracted) from this 8 months limitation for the RCA benefits, see exh. 3.1)].  He also asked the DPSS to help plaintiff to obtain the date his asylum was granted, and to ‘re-evaluate’ plaintiff’s ‘eligibility for permanent housing assistance, effective 21 2002, and to issue such benefit, as otherwise eligible’.  

 

The DPSS refused to pay the RCA benefits and housing assistance because it wrote ‘LA county is unable to grant you any further RCA benefit since your status has not been established… Also since your permanent status has not been established, LA county is unable to approve any permanent housing assistance effective 11-21-02’ (see exh. 4.1 and comp. Exh. 4.1).  And in its second compliance report it wrote: ‘You do not have Refugee status… Therefore you are not entitled to an additional month of RCA benefits’ (see exh. 4.2 and comp. exh. 4.2).  As seen in exh. 4.3 (comp. exh.4.3), the DPSS also refused to pay the GR to send plaintiff in the street because it wrote that plaintiff was ‘an ineligible alien’ (for GR).

 

The Court will therefore agree that since plaintiff refugee status was never re-determined and has now been confirmed several times, the LA County incorrectly stated that plaintiff was not a refugee, made a clear mistake when it denied the refugee benefit, and of course, made a grave error when it did not address this issue in a rehearing request or petition to the superior court.  Plaintiff become therefore automatically entitled to the refugee benefits judge Tolentino granted him starting 2-4-2004 [and he is asking for in his motion for preliminary injunction, cash $330 (RCA), $152 (food stamp), $150 (housing assistance) + medical protection or $632/month + medical protection].       

 

3)    The legitimacy of the Negligence and the civil rights claims.

Independently from being entitled to the refugee benefits he asked for, plaintiff has also presented a legitimate negligence claim, because unlike the LA County writes it (‘LA County cannot be held liable on any theory’), the LA County can be held liable for negligence on 2 different legal theories:

A) First, GC 8152. makes it vicariously liable for the negligence of its employees and its employees are liable for negligence under CC1714 (a), moreover the negligence is established by the violations of the various regulation MPP articles and other statutes (USC, CC) as it is described in the complaint on page 32 no 135.  And the MPP regulation and other statutes are enactments (as defined in GC 810.6) that impose a mandatory duty on the LA County, and were created to prevent the kind of injury plaintiff suffered.     

b) And second GC 815.6 also imposes a duty on LA County for negligence or makes it liable because the MPP and other violated statutes are enactments (as defined in GC 810.6) that impose a mandatory duty on LA county, they were made to prevent the kind of injury plaintiff suffered and the breach of this mandatory duty (violations of MPP articles and other described in the complaint pa. 32 no 135) resulted in plaintiff injury.    

The LA County should therefore admit that it can be held liable for the violations of the regulation MPP articles and other statutes (enactments) described in the complaint (no 135) (- liable for negligence), and that plaintiff’s claim for negligence is legitimate (and o=should make some effort to correct it errors). 

 

The legitimacy of the civil rights claim is also clear because plaintiff has described obvious ‘systemic problems’ that did not just hurt (or injure) him, but that also hurt all the poor –DPSS clients.  For example, the refusal to file rehearing request or petition at the superior court to criticize administrative law judge decision (which seems a problem in other county also see People v. Sims) affect not only plaintiff, but every poor and it is a violation of the due process. Or the opening of almost all the homeless letters that violates homeless rights to privacy is also a systemic problem (judge Tolentino mentioned ‘the claimant does raise serious issues of rights of privacy as a constitutional issue’) [etc., see opposition to motion to dismiss + supp].  This claim is therefore also legitimate, and the LA County should admit that these systemic problems should be addressed by the management instead of being ignored like this.      

 

4)    The timeliness of the complaint and other ‘technical’ questions  (principles of res juridicata, FRCP 8) [see opposition].

[Apart from the theory of equitable estoppel and the theory of equitable tolling that makes the complaint timely in this case (see opp. To motion to dismiss), the LA County should admit that at any time until February 5 2004, it could have criticized Judge Tolentino’s decision at the Superior court, and eventually establish that plaintiff was not a refugee and not entitled to the refugee benefit granted in the decision, and therefore that the status of limitation for this action does not start running until 2-5-2004, or even on 12-15-2004 when the DHS refugee center issued the refugee employment authorization card.    
  

It is also clear that the principles of res juridicata do not apply in this case because the causes of action of this action (negligence and civil rights violations) are different than the ones presented in the previous law suit (misrepresentation, deceit,) and because the LA County used a FRCP 6 (b) motion to dismiss in the first proceeding instead of motion for summary judgment.  The res juridicata principles apply only for the causes of action presented in the first action (misrepresentation, deceit,) (see opposition).       

 

Finally the last critic on the form of complaint was unfair not only because plaintiff is pro se and therefore is entitled to a less stringent standard of review for his complaint, but also because he made the effort to present his allegations in numbered paragraphs, and to include the various elements necessary to plead these kinds of causes of action as described in the various law books (Cal. Form of pleading and practice , etc) he was able to find.  The LA County should concentrate more on the wrongdoings and the grave prejudice plaintiff suffered. (See opposition to motion to dismiss + supp.  for more detail)]

 

5)    Conclusion on the chance of success on the merits.

As the court can see, the various confirmations of plaintiff were described in the complaint and therefore plaintiff should be excused for his neglect (see standard below).  Plaintiff’s refugee status was unequivocally confirmed and cannot be questioned now by the LA County, not even in a criminal proceeding (see people v. Sims).  This fact and Judge Tolentino’s decision demonstrate that plaintiff is entitled to the refugee benefits he ask for in his preliminary injunction.  And the legitimacy of his negligence claim and civil rights claim show that he is entitled to a compensation for the damage he suffered despite the technical problems raised by defendant.   And therefore there is a likelihood of success of the case on the merits.

   

B  The possibility that Plaintiff  will suffer an irreparable injury.

The court based its decision that plaintiff had not demonstrated that he would suffer an irreparable injury on the fact that ‘there were no evidence that the public assistance he currently receives is likely to terminate in the near future’, that ‘plaintiff fears that it may happens is not sufficient’, and that ‘the fact that plaintiff was able to stay in his room for the past 2 years shows that the status quo would be altered if the injunction was granted’.  But it ignored the remarks made in plaintiff’s reply explaining that he was able to stay in his room because he received an additional aid from the Work Source (from August 2004 to March 2005), or that plaintiff health situation requires a better diet (extra money to buy food), and ignored that plaintiff’s fear are supported by an obvious history of unfair terminations of benefits as can be seen above and below.  Plaintiff believes therefore that the court’s conclusion should be reviewed at the light of the above explanation and the additional details given below.      

 

1)     Previous problems at the DPSS, and proof that he could not pay his full rent in January 2006.

The county has already made several ‘mistakes’ that lead to plaintiff benefits termination [on December 2 2002, unfair termination of refugee benefits, in June 2003 unfair termination GR, in august 2003, unfair termination of food stamps, in September 2004 unfair delay in GR check that lead to extra spending on plaintiff, in January, February  2005 unfair diminution of GR by $21,], so the possibility that plaintiff benefits will be unfairly ended is not just a fear as the court call it, but also a history reality, or a perfectly reasonable assumption on plaintiff’s part.  And of course even if plaintiff can stay in his room, he still will not have the extra money necessary to improve his health and recover from his cardiovascular problems.  

 

And again the Work Source paid some aid ($75 for 8 months) - this is why plaintiff could stay in his room-, but after the problems in December 2004 and January 2005 at the rancho Pak district (see comp. no 75, and reply), it stopped even though plaintiff was put on disability.  The injunction will not alter the status quo, it will simply gave plaintiff some money to survive.  Recently plaintiff could not pay his rent as he wrote in his motion, but his landlord offered at the last moment to lend him $40 (see payment of the rent diminished by $40 in January exh. 6) this is why he was not sent in the street, but this is temporary very short term (please see exh. 7 for the danger of being sent in the street).  Plaintiff does not have $2 to wash his cloth, or to buy tooth past, or to send any letter (he could not even serve his complaint)!

                

2)    Plaintiff health problems.

[Plaintiff has had chest pain (and frequent severe headaches and nausea) for more than a year, in June 2005 he finally had a blood test done that pointed out cardiovascular problems (high cholesterol level,  particularly a high triglyceride level, and a low good cholesterol, or HDL, level, which together gives a high cholesterol/HDL risk ratio (which is not good at all since it shows high possibility or risk of coronary disease see exh. 5).  It is usually difficult to raise the HDL level (that is critical), but in plaintiff case it is even more difficult because plaintiff has no place to cook or to store food, so he cannot really improve his diet, and he has chest pain when he exercises, so he cannot do the ‘violent’ exercises that could help him raise the HDL level.  As the result, despite serious effort from plaintiff, his blood test results have worsened in November 2005, his HDL level decreased slightly and the bad cholesterol level increased even more (see exh. 5).  If the HDL goes under a certain level (20) the heart attack is unavoidable, so the court surely understand that when plaintiff asks for a injunction, he is asking the court to give him a little extra money, not just to pay for the rent that is critical of course, but also money that will help him to improve his diet and improve his HDL level to diminish his risk to have a heart attack.]  

      

III The mistake of the Court, the weigh of evidence contradicting the order, and the ‘serious questions’ raised.

          The court statement ‘Genevier alleges that defendants have unconstitutionally deprived him of his refugee status’ (on page 2 line 14 of its order) is incorrect, and is a significant mistake because it shows that he court did not read (and understand) properly the complaint (and other pleadings).  Plaintiff never wrote that he was ‘deprived of his refugee status’, on the contrary, he repeatedly explained that his refugee status was confirmed several times as explained above (see also comp. p 6 no 32, p.8 no 40,), and that it is only several dishonest civil servants that unfairly deprived him from the benefit associated with the refugee status (and tried to deprive him from his refugee status, but obviously did not succeed so far).  And as seen above the court misevaluated the likelihood or the possibility to suffer an irreparable harm when it ignored the history of unfair terminations of benefits by the county, and the facts that the work source helped plaintiff during 8 months, and that this help was terminated after some problems with the DPSS.  Finally, the court also forgot to mention that plaintiff presented a negligence claim against the LA County (and the US), and that the loss of benefit were also due to negligence also, which is ‘easier’ to establish than the violation of civil rights, this ‘affects’ the court ‘perception’ on the likelihood of success on the merit. 

 

          The court order (court order conclusions) is therefore clearly against the weigh of evidences (presented in the complaint and now in this motion) as to constitute a miscarriage of justice (especially when one knows that the refugee status is matter of life and death).  There are obvious evidences that plaintiff refuge status was never re-determined (as defendants wrote it, and instead that it was confirmed several times), that he is entitled to the benefits he asks for because the County incorrectly stated that he was not a refugee.  The 2 claims against the LA County are also legitimate and legally supported by California statutes, so the court order conclusions would constitute a miscarriage of justice if they are maintained, and plaintiff respectfully request the court to grant relief from its order.        

The FRCP Moore’ book states: ‘However, because the court is permitted to weigh the evidence, the court may grant a new trial even if the evidence is legally sufficient to support the verdict of judgment. (see Dennis v. Columbia collecton Med. Ctr. 290 F. 3d 639, 650 (4th Circ. 2002) (district court should grant new trial if jury’s verdict is against weigh of evidence, is based on false evidence, or will result in miscarriage of justice, court may grant new trial even if there is evidence to prevent judgment as matter of law for movant).’. 

 

The court will note also that the issue of the confirmation of his refugee and of his entitlement for the refugee benefits are ‘serious questions’ in the sense ‘it is one as to which the moving party has a fair chance of success on the merits’, and therefore that the injunction is justified because ‘the balance of hardship in its (plaintiff) favor’, it is obvious that the LA County will not suffer if it is forced to pay some housing assistance in addition to the benefits it pay now because it (and the community) already pay housing to many poor (in plaintiff situation) without a court order (see reply explanation). [The negligence of the LA County is also a ‘serious question’ as seen above].

 

IV The standards of review for a motion for relief from judgment under FRCP 59 and FRCP 60.

          The Moore’s Federal practice Rules pamphlet gives some standard to grant relief under FRCP 59 and 60. For example it states: ‘Under Rule 60 (b) (1), a motion for relief from judgment may be premised on ‘mistake, inadvertence, surprise, or excusable neglect”. This ground for relief from judgment focuses on some error made by a party or party’s attorney, so that a conscious decision or strategic choice of a litigant or counsel may never be grounds for relief under FRCP 60 (b) (1) . (see Tareco Properties, Inc. V. Morris, 321 F 3d. 545, 548 (6th Circ. 2003). 

 

 The term mistake in rule 60 (b) 1) includes not only mistakes by litigant, but also mistake made by the court. See In re 310 Assocs., 346 F. 3d 31, 34-35. 

 

                The supreme court addressed the meaning of the term ‘excusable neglect’ in Pioneer Inv. Serv. Co. v. Brunswick assoc. Ltd. Partnership, 507 US. 380, 387 –389 113 S. Ct. 1489, 123 L. ed. 74 (1993).  The Pioneer Inv. Case held that the term excusable neglect was not limited to circonstance beyond the control of the party seeking the extension of time, but instead to embrace core negligence.  The key question then become whether the negligence may be found to be excusable , an issue to be resolve on a case by case basis (see In re Cardant Corp. prides Litigation, 235 F. 3d 176, 183-184 (3d. Circ. 2002) (when delay was minimal, and there was neither prejudice nor bad faith in plaintiff missing deadline, excusable neglect was demonstrated).’ 

               Under Rule 60 (b) (2), a motion for relief from judgment may be premised on ‘newly discovered evidence.  The showing required to obtain relief from judgment on this ground  is the same as the standard for obtaining a new trial on that ground under rule 59.  The party must demonstrate that:

·         The evidence existed at the time of trial, but was not discovered until after trial;

·         The failure to discover it earlier was not due to a lack of diligence;

·         The evidence is material and admissible, and is not merely cumulative or impeaching;

·         Consideration of the evidence is likely to produce a different outcome.

Plaintiff was (a) in good faith when he did not attached (as exhibits or adduce) the evidences proving that his refugee status was confirmed several times or that he was entitled to the refugee benefits because they were in the compliant already, (b) this neglect was not a conscious decision or strategic choice to unfairly win the case or to unfairly obtain the injunction (because he thought the court would use the evidences presented in the complaint and the facts and the wrongdoings were described in the complaint to evaluate the likelihood of success); and (c) there were no prejudice in plaintiff failing to adduce the evidence to his motion, so the grant of relief from order is warranted on this ground alone.

 

In addition to that, the newly discovered evidence –case People v. Sims- was (a) not discovered by plaintiff until he made his research on the judicial immunity for the other defendant – after he wrote his injunction and reply, and (b) the consideration of this evidence is likely to produce a different outcome because it confirms that neither the LA County nor any other defendant can question plaintiff’s refugee status in this proceeding (or even in a criminal proceeding,).  The relief from order is also warranted on this ground.

   

V Conclusion.

In conclusion plaintiff would like to stress (a) that his failure to adduce the necessary evidences in his motion was an excusable neglect that fits in the category of negligence that can be relived under FRCP 60 (b) (1); (b) the newly discovered evidence – the case People v. Sims- establishes without any doubt that defendant, LA County, cannot question in this proceeding (or any other) the fact that plaintiff is refugee, and therefore that it incorrectly denied him the refugee benefits (and the GR) in its three notices actions (exh 4); (c) this newly discovered evidence and the facts describe above and in the complaint prove that the court made a mistake when it stated that plaintiff alleged that he had been deprived of his refugee status; plaintiff never alleged that, an instead he always alleged that this status was confirmed several times as seen above; and (d) finally it appears clearly that the Court order denying the injunction is against the weigh the evidence as to produce a miscarriage of justice, and therefore that the court should grant relief from this order.          

          Moreover, it appears also clearly that the conditions of the 2 tests to issue an injunction presented by the court in its order are met: (a) There is  likelihood of success on the merits because the refugee status was confirmed by the appropriate authority and the LA County unfairly refused to pay the benefits granted by Judge Tolentino, and there is a strong possibility of suffering irreparable injury for plaintiff in the injunction is denied; and (b) plaintiff has raised ‘serious questions’ (the confirmation of his refugee status, the refusal to pay the refugee benefits and to follow the appropriate procedure to criticize the administrative decision, and the negligence at the LA County) , and the balance of hardships tips sharply on plaintiff favor (see exh. 7).  So the injunction should be granted.           

          Plaintiff therefore respectfully requests the court to grant relief form its order and to grant the preliminary injunction. (This motion is urgent).  

Dated: February      , 2006

By:________________

Pierre Genevier

Exh. 1: Verification of status listing the plaintiff as a refugee (1.1, 1 page double sided, 2 pages), refugee employment authorization card issued on December 15 2004 (1.2, 1 p). Exh. 2: note from Mr. Lemons dated December 2 2002 (2,1 p.).  Exh. 3:  Decision of Judge Tolentino dated February 5 2003 (3.1, 6 p.), rehearing unit decision dated April 17 2003 (3.2, 1 p.).  Exh. 4:  Notice of action dated 03/13/03 (4.1, 1 p.), notice of action dated 04/02/03 (4.2, 1 p.), notice of action terminating GR (4.3, 1 p.).  Exh. 5: blood test results (4 p.).  Exh. 6: Rent stubs for January (1 p. ).  Exh. 7: article on homeless (1 p.).