Pierre Genevier
423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Email: pierre.genevier@laposte.net
United States District Court
For the Central District of California
Western Division
Pierre Genevier | DC No: CV 05-7517 AG (PLA)
Plaintiff |
Written Statement of
| Objections to the Report
| and Recommendation
Eduardo Aguirre et Al. | with Memorandum of Points
Defendants | and Authorities
|
| Honorable Judge Abrams
Plaintiff, Pierre Genevier, presents the following objections to
the report and recommendation of Magistrate Judge Abrams:
1)
Concerning Los Angeles County’s motion to dismiss.
a) Res Jurdicata
do not bar the civil rights violations and
negligence claims against the Los Angeles
County because the two suits
involve infringement of different rights, the rights or interest
established in the prior judgment would not be destroyed or impaired by
prosecuting this new action, and the new complaint describes critical new
facts and critical
new evidences [plaintiff
refuge A3 employment authorization card, obvious and
continual (over time) efforts to harass and to hurt plaintiff, systemic
wrongdoings (mail frauds, negligence…)].
b) The federal (deprivation
of civil right) claim and
negligence claim are timely because the critical facts (unequivocally establishing the early wrongdoings) are: (i) the fact that Judge Tolentino’s
decision became final for res juridicata and collateral estoppel purposes on 2-5-04; and (ii) the fact that the Nebraska Refugee Center issued the
refugee card on 12-14-04. Moreover plaintiff is entitled to equitable
tolling and to equitable estoppel, and the continuation violation theory
applies in this case.
c) The
supplemental jurisdiction over the negligence cause of action against the LA County and the common law conspiracy
against County’s employees in their individual capacities (and others) should not be declined because not all the Federal
claims related to the same facts have been dismissed yet. Moreover, the 1st cause of action
(civil rights) against the County should not be dismissed, and it is not in the interest of the community and of justice to
decline supplemental
jurisdiction in this case.
2) Concerning CDSS
employees’ motion to dismiss.
a)The
CDSS employees are not entitled to absolute immunity here because, unlike Judge Abrams writes it, the letters in question were not written in the context of an 'administrative appeal',
but in the context of a request to force the DPSS to comply with Judge Tolentino's
decision - the compliance enforcement process is not an
adjudicative function, and because
these defendants had no jurisdiction to change the decision outside the
formal appeal process (the rehearing), in particular change the
certification that plaintiff is a refugee.
Moreover, CDSS
defendants deserve no immunity for criminal wrongdoings.
b) The 2 federal claims against the CDSS employees are timely
because the critical
facts
(unequivocally establishing the wrongdoings) are: (i) the fact
that Judge Tolentino’s decision became final for res juridicata and collateral
estoppel purposes on 2-5-04; and (ii) the fact that the Nebraska Refugee Center issued the
refugee card on 12-14-04. Moreover, plaintiff is entitled to equitable tolling and equitable
estoppel in this case. And the common law conspiracy cause of
action is unequivocally timely.
3) Concerning 'Federal
defendants’ motion to dismiss.
a) Plaintiff has not stated any Federal
claims or causes of action for deprivation of civil rights and for conspiracy
to interfere with civil rights, or even common law conspiracy, against the 'Federal
defendants' in their official capacities. And he certainly did not intend to unlike Judge
Abrams writes it.
b) And Robinson is not entitled to the
judicial immunity for conspiring to
cover up her colleagues wrongdoings, to hurt plaintiff and to deprive him of
civil rights, or simply to deprive him of his civil rights which are also criminal
wrongdoings [she is not even acting
within the scope of her employment for these grave
wrongdoings - an obvious proof of this was given when
she argued that plaintiff was an illegal alien at the same time her client, the
US, issued him a refugee A3 EAD card!].
These objections asks
Judge Abrams to change his recommendations and respectfully asks Judge Guilford to deny the 3 motions
to dismiss, and are based on the following memorandum of points and
authorities and all other documents already filed in the case.
Dated: September , 2006
Pierre Genevier
Memorandum of Points and Authorities.
On
October 19 2005, plaintiff filed a complaint for (1) deprivation of civil rights, (2) conspiracy to interfere with civil rights, (3) common law conspiracy against several civil servants in
their individual capacities [and the LA County for (1) only],
and for (4) negligence against
defendants United States of
America and Los Angeles County. Defendants Los Angeles County, CDSS employees (Mendoza, Castello,
Campbell, Bolton), and federal
defendants, Sara Robinson (in her individual and professional capacities), Eduardo Aguirre,
Robert Looney, Janie Lee, Earl Dotson, Mr. Mahoney, Sue Amstrong,
INS-duty-Attorney and INS-manager (in their official capacities)
filed 3 motions to dismiss that plaintiff opposed on January 25, February, 3, 5 and May 17 2006.
Replies were filed on February 10 and June 27 2006.
On September 5 2006, Judge Abrams issued a report and recommendation asking Judge Guilford to grant the 3 motions to dismiss, but Judge Abrams changed or ignored critical facts and critical arguments, applied inappropriate legal standards and came up to not only incorrect conclusions, but also very unfair ones, so plaintiff files now his objections to the report and recommendation to ask the Court to deny the 3 motions to dismiss.
II Concerning the general
comments of Judge Abrams and/or the descriptions of the complaint and the
defendants.
On
page 2 line 8-9, Judge Abrams lists the ‘Los Angeles County Department of Public Social
Services ‘LADPSS’’ as one of the 24
defendants listed in the complaint, so plaintiff must stress again (and again!) that the complaint on page 2 lists the Los
Angeles County as defendant not
the ‘LADPSS’ (it should not be the
defendant that chose how it should be labeled in a complaint unless it brings
obvious proof that an error was made which was not done here) [comments already made in opposition to LA County
motion to dismiss p. 2-3and request to serve the LA County at its headquarter
only].
Just
below on page 2 line 11-12, he writes ‘Plaintiff, who alleges…, asserts that
defendants unconstitutionally deprived him
of his status as a refugee…’. Again, plaintiff has never written that he was ‘unconstitutionally deprived’ of his
refugee status in the sense that the defendants had made him
loose his refugee status since he has repeated over and over that his refugee
status has been confirmed several times, and therefore that he has been (and
still is) a refugee since at least 9-5-02 [see
opp. P. 4 l. 18-23, motion for reconsideration of the order denying the
preliminary injunction p. 12-13, and various other pleadings]. It
is also important to note that Judge Abrams writes ‘defendants’ meaning all the
defendants although as the Court can read in the complaint, the constitutional claims (1st
and 2nd causes of action) concern only a limited number of
defendants (certainly
not the US as explained below or the federal defendants in their official
capacity. See explanation below on page 6).
Judge
Abrams also writes on page 2 line 14-19, ‘Plaintiff purports to allege the
following causes of action: (1) violation of rights to a due process, equal
opportunity to find work…; (2) conspiracy , pursuant to 42 USC 1985….; (3)
common law conspiracy; and (4) negligence…’, but he ignores the first few lines of each one of these causes of action that describe
which defendants are concerned by the causes of action and then in his report
he dismisses some defendants in certain causes of action in which these
defendants are not even mentioned. For
example, he writes later in his report that plaintiff presented a cause of
action for ‘conspiracy’ (under 42 USC 1985)
against the Los Angeles County although LA County was not mentioned in this 42
USC 1985 claim. Similarly, he dismisses
what he call the ‘Federal defendants in their official capacities’ in the two
federal claims (or
causes of action 1 and 2 under 42 USC 1983 and 1985) although again these ‘defendants’ are not mentioned in these causes of action,
and the way the complaint was designed confirms that plaintiff never
intended or never meant to have these ‘defendants’ held responsible for
these causes of action.
As the court can read in the complaint, even
though he did list several civil servants in their individual and professional
capacities in the case title,
plaintiff made sure to specify in which capacity the defendants appear in the
various causes of action:
For the 1st cause of action 42 USC
1983 (complaint pages 14 and 19):
82. Defendants (Dotson, Lee, Looney,
INS-duty-attorney, Mahoney, Amstrong, INS-manager, Aguirre, Robinson, Mendoza,
Castello, Campbell, Bolton in their individual
capacities, and Los Angeles County)
violated rights protected by the constitution or created by federal statues:
Wherefore, plaintiff prays judgment
against defendants (Dotson, Lee, Looney, INS-attorney, INS-manager, Aguirre,
Amstrong, Mahoney, Robinson, Mendoza, Castello, Campbell, Bolton in their individual capacities,
and Los Angeles County) for
violation of 42 USC 1983: 1) for general damages (wage loss,) in the
sum of $ 720 000 increasing by $20 000 (-any benefit or salary plaintiff may
receive) every month until the dispute is resolved; 2) For special damages for
loss of earning capacity, loss of years of life expectancy, and psychological
damage in the sum of $1 800 000; 3) For Cost of suits incurred herein; or such
other and further relief as the court may deem proper. [90-94 reserved].
There is no reference or no demand for
judgment against any Federal employee defendant in its ‘official capacity’ and the Los Angeles
County is clearly mentioned.
For the 2nd cause of action 42 USC 1985 (complaint
pages 19 and 33):
96. Defendants [Dotson, Lee, Looney,
INS-duty-attorney, Mahoney, Amstrong, INS-manager (8), Mendoza, Castello,
Campbell (10), Robinson (9), Lemons, Becerra, Nollner, Mirzoyan, Riley, Diaz,
Yokomizo in their individual
capacities,] conspired to interfere
with plaintiff civil rights, to obstruct justice, to intimidate
plaintiff, and to deprive plaintiff from his civil rights.
Wherefore, plaintiff prays judgment (for
violation of 42 USC 1985) against defendants (Dotson, Lee, Looney,
INS-duty-attorney, INS-manager, Mahoney, Amstrong, Mendoza, Castello, Campbell,
Sara Robinson, Lemons, Becerra, Nollner, Mirzoyan, Riley, Diaz, Yokomizo in their
individual capacities): 1) for general damages in the sum of $ 720 000
increasing by $20 000 (- any benefit an salary plaintiff may receive) every
month until the dispute is resolved; 2) For special damages for loss of earning
capacity, loss of years of life expectancy, and psychological damage in the sum
of $1 800 000; 3) for punitive damages; 4) for Cost of suits incurred herein;
or such other and further relief as the court may deem proper. [reserved 107 - 109]
There
is no reference or no demand for judgment against the Los Angeles County or any
Federal employee defendant in its ‘official capacity’.
For the 3rd cause of action common
law conspiracy (complaint pages 24 and 28):
‘111. Defendants (Looney, Dotson , Lee,
INS-duty-Attorney, Mahoney, Amstrong, INS-manager, Lemons, Becerra, Nollner,
Mirzoyan, Riley, Diaz, Yokomizo, Mendoza, Castello, Campbell, Robinson,
Klausner in their individual capacities) (a) had an object to be
accomplished:
Wherefore, plaintiff prays judgment
against defendants (Looney, Dotson , Lee, INS-duty-Attorney, Lemons, Becerra,
Nollner, Yokomizo, Mirzoyan, Riley, Diaz, INS-manager, Mahoney, Amstrong,
Mendoza, Castello, Campbell, Robinson, Klausner in their individual capacities) for common law conspiracy:
1) for general damages (wage losses,) in the sum of $ 720 000 increasing by $20
000 (- any benefit or salary plaintiff may receive) every month until the
dispute is resolved; 2) for special damages for loss of earning capacity, loss
of years of life expectancy, and psychological damage in the sum of $1 800 000;
3) for punitive damages; 4) for Cost of suits incurred herein; or such other
and further relief as the court may deem proper. [124 reserved].’
There is no reference or no demand for
judgment against the Los Angeles County or any Federal employee defendant in
its ‘official capacity’.
Finally, for the 4th cause of action negligence (complaint pages 28 and 33):
126. Defendant, United States (including DHS formerly
INS) owed a duty to process asylum application honestly and promptly [it
accepted this duty in signing 1951 Geneva Refugee convention]. And, Defendant, Los Angeles County,
owed a duty to deliver honestly and promptly all social services or benefits to
eligible clients, the DPSS was created for this purpose (helping the poor), and
the County health facilities to treat patient honestly.
Wherefore, plaintiff
prays judgment for negligence against defendants (United
States, Los Angeles
County):
1) for general damages (wage losses,) in the sum of $ 720 000 increasing by $20
000 (- any benefit or salary plaintiff may receive) every month until the
dispute is resolved; 2) for special damages for loss of earning capacity, loss
of years of life expectancy, and psychological damage in the sum of $1 800 000;
3) for Cost of suits incurred herein; or such other and further relief as the
court may deem proper.
This last cause of action concerns
unequivocally the US and the Los Angeles County (and mentions
their employees listed in their official capacities).
The 4 causes of
actions describe therefore very clearly which defendant is sued and in what
capacity it is sued. Plaintiff has explained in his pleadings (oppositions to federal defendants page 10-11 and US motion to dismiss) that he had mentioned several employees in their official capacities in the title of the
case (comp. p.1-2)
because of their participation in the negligence cause of action and cause of
action 1 (for some county employees) against
their employers.
The court can verify on line 9 page 2 of the
complaint that defendant ‘Dr. Kathy Alston, in her professional capacity,’ is mentioned only in her professional capacity because she (or her wrongdoings)
is only listed in cause of action 1 and 4 against the Los Angeles County her employer. While ‘Mr. Gary Klausner, in his individual capacity, Mr.
Ronald Mendoza, in his individual capacity, Mr. John Castello, in his
individual capacity, Mr. Robert C. Campbell, in his individual capacity, Mr. Lawrence Bolton, in his individual capacity, ‘, are mentioned ‘in their individual
capacities’ only because they are not mentioned in the
negligence cause of action or any cause
of action involving their employer.
Judge Abrams writes
also on page 2 line 20-22 ‘the District Court, sua ponte, dismissed Judge
Klausner… because plaintiff was seeking to hold Judge Klausner liable for his judicial
actions…’. Plaintiff was not
trying to hold Klausner liable for his judicial actions, but for his
administrative actions since he explained that the Department of Justice 'delegates'
the responsibility to sanction US Attorneys to Federal Judges, and therefore
that Klausner was simply performing an administrative duty. Judge Morrow simply completely
ignored this argument!
III Concerning the Los
Angeles County
motion to dismiss.
A The res juridicata principle does not
apply here.
Only one Federal claim against the Los Angeles
County.
First,
Judge Abrams writes in his title and arguments (p. 9 l. 16-17) that ‘plaintiff’s federal claims against the LADPSS are
barred by res juridicata’ or
writes ‘raising
his claims herein as ‘civil rights’ and ‘conspiracy’ claims’, but he is wrong to put an S or to mention
the conspiracy because plaintiff has described only one federal
claim against the Los Angeles, the
first cause of action under 42 USC 1983 (see above p. 5-8). He makes this error
deliberately, it seems, so that he can dismiss ‘at his discretion’ the
negligence cause of action against the Los Angeles County and the common law
conspiracy against several defendants civil servants in their individual
capacities (for
which the statutes of limitation are unequivocally not run out).
If he considers the 2nd cause of action (under 42 USC 1985) as being one claim against the employees (including the DPSS employees) in their individual capacities, then he can not argue that all the Federal
claims based on the same facts have been dismissed because the DPSS employees
in their individual capacities have not been served yet (The Court has refused to
order the US Marshal to do the service and plaintiff has absolutely no money!).
He
argues also on the next page (p. 10 l.
1) that ‘plaintiff
contends that he never before alleged that any public agencies conspired
to deprive him of his refugee status’, it is not just ‘never before’, again plaintiff simply never alleged or
contended that public agencies conspired against him,
and certainly not to deprive him of his
refugee status because he
explained that Judge Tolentino certified his
refugee status and that the DHS Nebraska Refugee Center also confirmed that he
was refugee when it issued his A3 refugee EAD card in 12-04, so the
agencies they work for could not have been conspiring to make him loose his
refugee status, it is only few employees in their individual capacities that
conspired![see
opposition to LA County motion to dismiss from p. 4 l. 25 to p. 5 l. 6; and P. 3 l. 12-14]
A new complaint not based on the same
rights.
Second,
Judge
Abrams argues that the res
juridicata principle applies here because the 42 USC 1983 claim is based on the same rights (as in the previous complaint), but this is clearly wrong. The right to obtain a compensation for ‘deceit’
or ‘misrepresentation’ or ‘suppression of facts’ (or even punitive damage) against a public entity (used
in the first complaint) is not the same right as
the right to obtain a compensation for civil right violations against a
county or individuals or as the right to obtain a compensation for
negligence! If they were the same rights, they would
have the same statute code, and they would define the same type of wrongdoings,
which is not at all the case.
Even the right to obtain a compensation for
‘misrepresentation’ is different depending on if it applies to a public agency
or a civil servant as you know [the civil
code lists no exception to the immunity for misrepresentation of public entities (GC818.8), while
their employees are liable for misrepresentation when they are guilty of
corruption and malice (GC 822.2)]. To prove
the violation of civil rights under 42 USC 1983, plaintiff must present several
elements: first he must describe the violations of the civil rights (comp. p.
14-15), then describe the defendants conduct and overt acts that caused
the violation (comp. 16-18), and of course establish that the conduct and overt
acts lead to his injury (comp. 18, 13).
In this case, for the Los Angeles County, plaintiff did not just list ‘misrepresentation’
as overt act (see complaint page 18 no 87), he also listed negligence
(which is not the same right as misrepresentation), obstruction to
justice (viol. PC 182, which is not the same right as
misrepresentation), the use of an altered immigration document (viol.
18 USC 1546; which are not the same right as misrepresentation), the opening and
stealing of letters (viol. 18 USC 1702, 1704; which are not the same
right as misrepresentation), and the negligence of Dr. Alston. So Judge Abrams cannot pretend that the new
complaint involves the infringement of the same rights.
Moreover, even if the Judge Abrams
wants to hold that misrepresentation cannot be considered as an overt act for the
Los Angeles County because of the previous complaint and decision, he cannot ignore
that the misrepresentations still constitute an overt act for the County
employees who were guilty of corruption and malice [in
this case as mentioned in no 87 a)] and a conduct that lead to the violation
of civil rights, and he cannot ignore the other overt acts mentioned. Here, not only Judge Abrams did not bother
to make this difference (between the rights for misrepresentation against
a public entity and its employees), but he also ignored all the other overt acts
(negligence, obstruction to justice, opening of letters, use of an altered
immigration document,).
And he talks about a ‘re-packaging
of the same allegations’ (p. 11 l. 25), but this is ridiculous because
it is not plaintiff who determines the various elements of cause of
action that must be included in a complaint, it is the law or legal authorities. In his previous complaint, plaintiff had
followed the structure of the California form for cases of
misrepresentation, and in his new complaint he did not ‘re-package’ anything,
he simply included in his 4 causes of actions, referring to new rights
(not misrepresentation …), the various
elements necessary to establish the violations of these new rights
(not misrepresentation or deceit...).
A new complaint also
based on critical new facts
and critical new evidences.
Concerning the facts
described in the two complaints,
yes, the early facts from 2002-2003 are the
same, but obviously plaintiff could not explain in 02-04 that the DHS had
issued him a refugee A3 EAD card in 12-04 – card that unequivocally confirmed
that the DPSS has used not only a altered verification of status, but a
necessarily fraudulent one. Moreover,
plaintiff presented also several other
new facts that took place from the
end of 2003
to the end of 2005 at the Rancho Park
District, and explain that the DPSS continued to harass plaintiff
constantly even while his case was pending at Court (comp. no 69-74). The new facts are critical facts and critical evidences because (a) they prove without doubt that
plaintiff is and has always been a refugee, (b) they prove the existence
of systemic wrongdoings at the DPSS (mail frauds, constant negligence and
harassment in 2 or 3 different DPSS districts,...), and (c) they prove that the LA County harassed and made many
efforts to hurt plaintiff and deprive him of his rights over time
(from
2002 to end of 2005).
Judge
Abrams pretends that plaintiff ‘new facts’ do not allege civil rights
violation, he writes on page 11 line 17- 24 ‘In his complaint, plaintiff added new
allegations that LADPSS stole his letters at various times…. To state a claim
against a particular defendant for
violation of civil rights under 42 USC 1983, plaintiff must allege that the
defendant, acting under color of state la, deprived plaintiff of a right
guaranteed under the constitution or a federal statute… plaintiff new facts do not so allege’. This is completely wrong. ‘Plaintiff’s new
facts’ do allege that defendants deprived him of right guaranteed by the
constitution (the right to a due process, equal
opportunity to find work, freedom from cruel an unusual punishment, the right
to life, the right to privacy) as the court can read in the complaint page 14,15,16, and on
page 18 where these new facts are included within the
description of the right violations; and where a reference is also made to
comp. no 135 which describes in detail the violations of MPP articles and other
statutes; and to comp. no 75 for the damage .
These new facts contributes to establish the deprivation of the: due
process, equal opportunity to find work, freedom from cruel and unusual
punishment, freedom from discrimination, right to life (or at least an
attempt), and right to privacy; they are therefore critical new facts and critical
new evidences.
The
rights and interest established would not be destroyed or impaired by
prosecution of the new action.
During the first proceeding, the Court
determined that the LA County is immune for ‘misrepresentation’, ‘suppression of facts’, ‘deceit’, and therefore, that plaintiff had not
established the county’s legal duty for the
alleged wrongdoings. Of Course if there
is a GC 818.8, it is in the interest of the community to apply it (in this case it was not
honesty applied, but let assume that it was). Now,
the new complaint does not (or does not attempt to) destroy or impair the
right or interest of the LA County to be found immune for misrepresentation or
deceit or suppression of facts. The new
complaint simply describes 2 different causes of action or rights (42 USC 1983 and negligence); and it is in the
interest of society and of the LA County
that the LA County be held liable for these wrongdoings if they are proven to
have taken place. It is not in the
interest of the LA County to cover up wrongdoings and inefficiencies of its
services that hurt tens of thousand or even 100s of thousands of poor, and the
taxpayers in general. The objective or
the mission of the LA County is not to be negligent and to deprive the people
of their right whoever they are.
Moreover, given the gravity of the homelessness problem in LA County,
the justice should pay a special attention to the problems described in the
complaint, and strongly discourage the dishonest behavior of DPSS employees
that sends poor in the street.
Dismissal of initial
complaint for technical defects, and Rutter Federal citation.
Judge
Abrams writes on page 12 line 6-8 that ‘the Court (he)
rejects plaintiff’s contention that res juridicata is inapplicable here because
the claims against LADPSS in his earlier action were not dismissed on the
merits but, rather, for technical defects…’, and
on page 10 line 7 ‘Plaintiff contends that the
complaint was dismissed for technical defects including a very questionable
immunity for misrepresentation …and based on a very limited sets of facts because
Judge Klausner found the earlier complaint difficult to read’. Plaintiff admits that he did not used the
right words when he wrote that Judge Klausner ‘found the earlier complaint
difficult to read’. The truth is
Judge Klausner wrote in his decision that he found the complaint ‘unintelligible’ (see his decision top of
2nd page) or unreadable or incomprehensible, which was obviously not
true since Judge Abrams was able to read it well enough to determine that it
describes the same early facts and motives that are presented in this new
complaint!
But obviously, if Judge Klausner wrote
that the complaint was unreadable, he could not possibly have dismissed it 'on
the merit' of the facts described in the complaint! Judge Klausner wanted to close his eyes on the obvious underlying
grave wrongdoings, so he simply used the immunity for misrepresentation to
justify the dismissal and to avoid having to look at the grave underlying wrongdoings
[sometimes, plaintiff believes, some Court of Appeal that grants the
immunity for misrepresentation in pro se case, still remands the case to ask
the District Court to review the complaint to see if the facts do not amount to
negligence. Here Klausner did not want
this, this is why he wrote that the complaint was unreadable!]
Judge Abrams has also
ignored the citation of the Rutter Federal CPBT made by plaintiff on
page 11 of the opposition to the LA County motion to dismiss that explains that
the res juridicata principle on a FRCP 12 b 6 motion to dismiss applies only to
the same claim (deceit, misrepresentation, suppression of facts) while a summary
judgment is res juridicata not only as to the claim alleged, but also as to any
other claim that could have been asserted based on the same facts! There is therefore no doubt that the res
juridicata principle does not apply here for LA County.
B
The 2 causes of action against the LADPSS are timely.
The ‘discovery
rule, and the critical facts.
Judge Abrams writes on page 13 line 3 that ‘Plaintiff contends that his claims are not barred by the statute of
limitations for the following: (1) the termination of his benefits was not
final until plaintiff administrative complaint was final in
February 2004….’. Plaintiff never wrote that the ‘termination
of the benefits was not final until plaintiff administrative complaint was final
in February 2004’, he explained that the critical facts related to these early denials of
benefits (based on the Los Angeles County allegations that plaintiff
was not a refugee, see notices of action and note form Lemons comp. exh. 2.3,
4.1, 4.2, 4.3) is the fact that Los Angeles County did not formally appeal Judge
Tolentino's decision (ruling that plaintiff was a refugee) within the one year period (see opp. p. 6). Until 02-05-04, Los Angeles county could
still have defended his contention that plaintiff was not a refugee in court
and eventually proved that an error was made, but after this date it could not
anymore (see res juridicata principle below). This is why the 2 years statute of
limitation for these early facts does
not start running before 2-5-04, (or even later on 12-15-04
when the DHS confirmed plaintiff refugee status). And
why the complaint is timely. (see also legal cases opp. p. 6, comp. no 89)
He writes also on page 14 line 17-21 that ‘… to the extend that any of plaintiff’s federal
civil rights claims against the LADPSS are connected to the administrative
decision of Judge Tolentino, such decision was final as of
the date it was rendered, or February 5 2003, and not one year later as
claimed by plaintiff ( see Cal. Welf. & inst . code 10962)’.
This is obviously wrong. The word ‘final’ has many different legal
meanings. Yes, the decision was final for
appeal purpose on the day it was rendered, but it was not final for
collateral estoppel and for res juridcata purpose until one year later on 2-5-04 - last date until which the DPSS could appeal it [see. California Forms of
Pleading and Practice section 474.15 or page 474.38.12 (6): ‘An agency decision is not final for purpose
of res juridicata and collateral estoppel until the statute of
limitations for filing judicial challenges to the decision has expired (Long Beach unified school
dist. V. State of California (1990) 225 Cal. App. 3d 155, 170, 275 Cal. Rptr.
449)].
So in this case and for res jurudicata and collateral estoppel purposes, the decision did not become final until
2-05-04, which is the critical fact and the starting date of the statute of
limitation (see also opp. p. 6-7 l. 25-5). Plaintiff
has explained many times that the res juridicata principle applies to DSS
administrative law judge decisions.
[see also
CFPP section 474.15 ‘A final
administrative decision on the merits, like a final judicial decision on the
merits, has res judicata effect, and failure to seek
judicial review of an agency's decision will prevent any later
challenge to the merits of that decision in a collateral proceeding [
Monroe v. Trustees of the California State Colleges (1971) 6 Cal. 3d 399,
405-406, 99 Cal. Rptr. 129, 491 P.2d 1105 ; Stockton v. Department of
Employment (1944) 25 Cal. 2d 264, 267-268, 153 P.2d 741 ; California Coastal
Com. v. Superior Court (1989) 210 Cal. App. 3d 1488, 1493, 258 Cal. Rptr. 567 ;
Knickerbocker v. City of Stockton (1988) 199 Cal. App. 3d 235, 243-244, 244
Cal. Rptr. 764 ]. A party adversely affected by an administrative decision
should therefore carefully weigh the consequences before deciding not to seek
judicial review.’] [see also opp. supplement page 4 case people
v. Sims (1982)].
Equitable
tolling doctrine and Equitable estoppel doctrine.
Judge Abrams argues
that plaintiff’s disability for 15 months between 2004 and 2005 does not
entitle him to equitable tolling. He writes ‘plaintiff made no
showing that he acted reasonably in failing to file his action in a timely
fashion. Although plaintiff contends
that he was prevented from filling the action due to his disability and because
he was forced by the action of defendants to live in the street, plaintiff’s
contentions are belied by his own litigation history’. This is outrageous, unjust and completely
incorrect of course. In 2004,
plaintiff was ran into by a car that, among other, broke his right arm (he
is right handed), this of course made it impossible to work, very difficult to prepare his
pleadings or do the research work, and impossible to prepare the complicated
complaint that he is presenting now.
Then soon after in October 2004, he started to have chest pain and other
cardiovascular problems, he had also frequent severe headaches and nausea (the
frequency just constantly increased until it reached every day in March 2005
when the DPSS doctor put him on disability).
Because of his
cardiovascular problems, plaintiff was constantly exhausted, and during the
headaches and nausea crisis he simply became completely incapacitated from
almost 11-12 in the morning to 11PM, so plaintiff could only do the absolute
minimum necessary to present the initial complaint and he could not have
possibly presented earlier this herein detailed
and complicated complaint. [Again as plaintiff explained it in his complaint on
page 15 line 8 to 16, it is extremely difficult to prepare the present
complaint for a pro se and the Court knows it even if Judge Abrams pretends
that the complaint is imprecise.
Plaintiff made also many efforts to find a lawyer to help him (he
contacted all the legal aid agencies and many lawyers, see opp. p. 15. l8-16),
but it is impossible to find a lawyer for someone on the GR]. [Moreover. Plaintiff did not succeed in litigating his
3 previous complaints (RR p.16 l. 7-8) since the complaint against the DHS was
dismissed for failure to prosecute!] The equitable tolling therefore applies to
this case.
Concerning the equitable estoppel, Judge Abrams
ignores the new facts (from 2003 to 2005 at Rancho Park) or pretends that they did not allege
deprivation of his civil rights, but since this is wrong and the DPSS has
constantly harassed plaintiff and forced him to complain over and over to the
management to avoid being send in the street, the new facts and conduct should
be seen as an effort to impede plaintiff from presenting his complaint, and
should lead to the grant of the equitable estoppel.
Continuation
violation theory.
Similarly, Judge
Abrams writes on page 14 line 27 ‘…But not only does plaintiff
fail to allege an ongoing series of wrongful acts by LADPSS that give rise to
any federal civil rights claims, but the US Supreme court has rejected the
application of the continuing violation doctrine to a series of discrete facts,
holding that ‘discrete facts that fall within the statutory time period do not
make timely acts that fall outside the time period’. This is of course completely wrong, first because
plaintiff did allege ongoing series of wrongful acts by LA County that give
rise to his Federal civil rights under 42 USC 1983 as explained above, and
these ongoing series of facts demonstrate a continuous effort to harass plaintiff,
to send him in the street, to threaten him, to make it impossible to find a job
and to defend his case over time from 2002-2005, and therefore they are not at
all ‘discrete acts’. [Moreover, the Court cannot
ignore that even recently the Social Security Administration denied the SSI to
plaintiff because the INS status verifier office sent a document saying that he
has an employment authorization. Yes plaintiff has refugee employment
authorization, but that only prove he is a refugee and he is entitled to
SSI! Even if the SSA is not the DPSS,
this new problem is just the continuation and the consequence of the DPSS
refusal to follow the procedure to criticize Judge Tolentino’s decision. Even
Judge Morrow pretended that she did not know what a A3 alien (refugee) category
was to deny the PI!]. The continuation violation
theory makes therefore the complaint (including the early facts) timely.
C The supplemental jurisdiction should not be declined.
Not
all the federal claims related to the same facts have been dismissed.
Again Judge Abrams
writes ‘Supplemental
jurisdiction over any remaining state-law claims against LADPSS should be
declined’, but as mentioned above there is no doubt about the fact that the Los
Angeles County is sued only in the 1st cause action pursuant to 42
USC 1983 and for the 4th cause of action for negligence. Judge
Abrams’ decision to decline supplemental jurisdiction for (or to dismiss) the negligence against Los Angeles County and common law conspiracy against the county
employees (and other) in their individual capacities is very unfair because all the other federal claims (referring to the same facts) have not been
dismissed. As seen above, the 42 USC 1985 cause of
action that refers to these same facts,
is not directed toward the Los Angeles County, but toward the DPSS employees in
their individual capacities, and can
not have been dismissed yet since the
Court has not authorized the defendants to be served by the US Marshal yet. Moreover as seen above the 42 USC 1983 cause
of action against the County should not be dismissed.
Not in
the best interest of the community and a miscarriage of justice.
It is obvious that
the res juridcata principle does not apply for the negligence cause of action against
the county and that the negligence cause of action is timely. It is also obvious that LA County’s lawyer
lied when she wrote in her motion to dismiss that plaintiff had not file a
claim, and that she was completely wrong when she wrote that the LA County
cannot be held liable for negligence on any theory since it can be held liable
based on GC 815.6 and the combination of GC 815.2 and CC 1714 (a) (see opp. p. 18; opp. sup. p.
2-4). And finally there are obvious proofs that
the County was negligent when it violated many MPP articles and other state and
federal statutes.
Like Klausner who
simply wrote that the complaint was unreadable to ignore the obvious
negligence, Judge Abrams who understood that LA County negligence is unquestionable,
is now using his discretion (or closing his eyes) although the court has now worked for one year on the case, and
therefore knows the facts and can easily ruled on this claim. Asking plaintiff to re-file his complaint at
the state court will be costly for the community and for the parties because
parties will have to file new pleadings, and a judge will have to study the
facts again; and will be extremely unfair because if the complaint were timely
when it was filed in October 2005, it would not be timely if re-filed now (especially if the new judge
hold a similar unfair reasoning), so denying supplemental jurisdiction is like
dismissing the claim with prejudice
for no valid legal and honest reason, just for the purpose of covering the LA
County. It would constitute a
miscarriage of justice and is not in the interest of the community and the LA
County.
IV Concerning the
conclusions on CDSS employees’
motion to dismiss
A CDSS defendants are not
entitled to absolute immunity.
Judge Abrams writes on
page 18 line 16-27 ‘…plaintiff ‘s claims
against the CDSS defendants flow from letters written by three of the
defendants concerning plaintiff’s complaint about the cash assistance benefits
he was receiving in connection with his refugee status. The first letter was written to plaintiff on
May 2 2003, by administrative Law Judge Mendoza in connection with plaintiff’s
administrative appeal ….’, but this is incorrect, the 3 letters in question did not concern ‘plaintiff’ administrative
appeal’ as Judge Abrams writes it, they concern plaintiff's
request to the CDSS to force the DPSS to comply with Judge Tolentino’s decision
dated 2-5-03 which is very different (see opp. p. 8 l 8-23). An appeal proceeding (or rehearing) is
different than a request to enforce compliance; in fact, it seems that usually
it is Mr. Ceja who is not a judge who handles the problems of compliance. Plaintiff argues that enforcing compliance
is not an adjudicative function, it is just a ministerial act ‘act done after ascertaining the existence of
specified state of facts in obedience to a legal order without exercising of
personal discretion’ (see
opp. p 8 l. 15, and p. 7 l. 27-29), and therefore that CDSS
defendants are not entitled to the judicial immunity here.
Plaintiff also argues that the CDSS defendants had no jurisdiction to
change the decision outside the formal appeal process (and that even Castello admitted it), including stating that plaintiff was not a refugee (and certainly not based on an altered fraudulent
document) and lowering the number of months of benefits
to be paid; and therefore that they are not entitled to the judicial immunity
for changing the decision outside of all jurisdiction (see
opp. p. 10, p7 l. 27-29). [Plaintiff has filed a detailed appeal on this issue
at the state Court, but he could not make enough copies to file this last
pleading in a request to take judicial notice]. Judge Abrams has ignored every argument
presented by plaintiff, his recommendation is unfair and incorrect. He has also ignored that CDSS employees
should not be entitled to immunity for their criminal wrongdoings and
deprivation of civil rights (see opp. p 11). Concerning defendant Bolton,
he was negligent and neglected to prevent the wrongdoings against
plaintiff to deprive him of civil rights (viol. of 42 USC 1986, 42 USC 1983),
these are managerial ‘acts’, so he should be held responsible or liable
too.
B The 3 claims against the CDSS defendants (including
the 2 Federal ones) are timely.
The ‘discovery rule’ and the critical facts.
Again it is obvious that
the critical facts here are the fact that judge
Tolentino’s decision became final for res juridicata and
collateral estoppel purposes on 2-5-04, and that the DHS issued a
refugee EAD card in 12-15-04, and therefore that the statue of limitation does
not start running before 2-5-04, (or even later on 12-15-04), and therefore that the complaint is timely (see
comp. no 89, 105). Obviously,
3 of the main issues of the CDSS defendants letters are: (a) the fact that these CDSS
defendants did not force the DPSS to follow the procedure (CC 1094.5) and to
present its critics of Judge Tolentino’s decision to the Superior Court; (b) the fact that they argued
that plaintiff was not a refugee; and (c) the fact that they used a fraudulent verification of status to justify
their point; and any of these issues would have become non-issues (or
almost non-issues) if the LA County had appealed Judge Tolentino’s
decision before 2-5-04 at the Superior
Court. Moreover, plaintiff could not
know the real impact of their dishonest decisions before this date 02-05-04 because
a timely appeal from the DPSS would have resolved many problems.
Equitable
tolling doctrine and Equitable estoppel doctrine.
Concerning the impact of
plaintiff disability, as explained above
this type of complaint is extremely difficult to prepare for a pro se,
and plaintiff could not possibly prepare such complaint earlier with the health
problems he had. Plaintiff presented
various cases supporting his entitlement to the equitable tolling and several
arguments showing that he acted in reasonable manner because it did not make
sense to present any new complaint before the appeal court decides on the first
one (see opp. p. 4-5).
Concerning the
equitable estoppel, judge Abrams is right to state that the
Governor office that engaged in a misleading conduct is not defendant here or
even that Jung Shin who asked the Court to dismiss the complaint with prejudice
because of the 11th amendment is not defendant, and therefore that
their misleading conduct does not apply (even
though CDSS defendants are legal expert and surely knew the impact of the
strategy of their lawyers); but the constant effort
of the other defendants and co-conspirators to send plaintiff in the street and to harass him, to deprive him of his
rights between 2003 and 2005, to maintain incorrect information on the INS
record (and it continues even now) should encourage the court to grant equitable estoppel here for the 2
federal causes of action. The acts of a co-conspirator are acts of all the
other conspirators.
V Concerning the ‘Federal Defendants’ motion to dismiss.
A there is no Federal claim against any ‘federal defendants’ in their
official capacities.
Judge
Abrams writes on page 21 line 14-17 that ‘plaintiff’s complaint
herein lists the Federal defendants each in his or her individual professional
capacities’ (complaint at 1-2. Thus, to
the extend that plaintiff intended to name the Federal defendants in
their official capacities with respects to his federal civil rights or
conspiracy claims, his claims are barred’. As explained
above on page 6-8, the title lists the 'Federal defendants' in their official
capacities because of their participation in the 4th cause of action
or negligence cause of action against the US, their employer (it is an accepted notation). But plaintiff did not, and certainly did not
intend to, name these ‘Federal defendants in their official capacities
with respect to his Federal claims civil rights or conspiracy claims’, otherwise he would have listed them in their
official capacities at the beginning of these causes of action and in the prayer
for judgment at the end, which he did not do as seen above on p. 6-8. Since these Federal defendants are only
listed in the Federal civil rights claim and the conspiracy claims in their
individual capacities, the
sovereign immunity does not apply, and there is no need to dismiss
these Federal defendants in their official capacities in the federal claims or causes
of action 1 and 2. [and, 28 USC 2679 does not
permit to substitute the US for the federal employees in these ‘bivens’ or constitutional claim, so
the request to dismiss constitutional claims against the US or
these Federal defendants in their official capacities is unnecessary.]
B
Robinson should not be given any judicial immunity.
Plaintiff based his conclusions that
Robinson was not entitled to the judicial immunity on 2 relevant cases or legal
authorities: Maye v. Reno and Bly-Magee v. California (cased used by Mr. Lester). These cases support that
Robinson is not entitled to any immunity (see oppo. p. 4 and 5) for conspiring to cover up
her colleagues, to hurt plaintiff and to deprive him of his rights, (and simply deprive him of
his rights), and that these acts or wrongdoings are not
part or within the scope of her employment (see oppo. to US
p. 7-12). And he
presented as obvious that she was not acting within the scope of her employment
(which is to defend the US,
her client), the fact that she incorrectly stated that
plaintiff was an illegal alien while, at the same time, the US issued him a
refugee card.
And Judge Abrams concluded on page 23 l. 18-20, ‘Robinson is entitled to absolute immunity from plaintiff allegation’s
suit, notwithstanding plaintiff’s allegation of misrepresentation, negligence,
or improper motive …’; of course, these
‘misrepresentation, negligence, and improper motive’ allegations are not the
allegations that make Robinson liable since it is the grave wrongdoings
- the allegations (a) that she conspired to cover up her
colleagues, to hurt plaintiff and to deprive him of his rights,
and (b) that she simply deprived him of his civil rights that
make her liable according to the applicable legal authorities mentioned above (allegations that amount also to criminal wrongdoings
and cannot be part of Robinson work, plaintiff clearly distinguished
these wrongdoings in his opp. To US p. 7-12) [this is another good example
of how Judge Abrams ignores critical arguments and allegations to justify
unfair conclusions].
Plaintiff asks the court to change this recommendation and to let
Robinson be liable for conspiring to cover up her colleagues
wrongdoings, …, to hurt plaintiff and to (and simply to) deprive him of his civil
rights, and to deny the certification that she was acting within the scope of her
employment for these grave wrongdoings.
VI Conclusion.
Instead
of construing the allegations of material facts in the light most favorable to plaintiff as he wrote he should do (RR p. 6 l. 14-15), Judge Abrams changed and ignored
critical facts and critical arguments, and applied inappropriate legal
standards; so the District Court should certainly not approve the report and
recommendation. The facts and relevant
legal authorities show that the 3 motions to dismiss should be denied: For example,
(1) the res juridicata does not apply for the claims (42
USC 1983 and negligence) against the Los Angeles because they are based on different rights…; then (2) the
CDSS defendants are not entitled to the judicial immunity because they were
performing ministerial actions and
they changed Judge Toleninto’s decision outside
of all jurisdiction; and (3) these claims against the county and the
CDSS employees are timely because the critical fact is the final status for res
juridicata purpose of Judge Tolentino’s decision on 2-5-04…; and finally, (4)
no Federal claim was presented against the 'Federal defendants' in their
official capacities, so there is not need to dismiss them; and Robinson is not entitled to the judicial immunity
or even acting within the scope of her employment for conspiring to cover up colleagues, to hurt plaintiff or to deprive
him of his rights.
Plaintiff requests
that Judge Abrams corrects his errors, and respectfully requests that Judge
Guilford disapproves the recommendations, denies the 3 motions to dismiss the
case, and accepts supplemental jurisdiction for the negligence and common law
conspiracy.
Dated: September , 2006
By:________________
Table of Contents.
II Concerning the general
comments of Judge Abrams and/or the descriptions
of the complaint and the defendants. P. 4
III
Concerning the conclusions on Los Angeles County motion to dismiss. P. 9
A The res juridicata principle does not apply here. P.
9
B The 2 causes of action against the LADPSS
are timely. P.
15
C
The supplemental jurisdiction should not be
declined. P.
19
IV
Concerning the conclusions on CDSS employees motion to dismiss. P. 20
A CDSS defendants are not
entitled to absolute immunity in this case. P. 20
B The 3 claims against
the CDSS defendants (including the 2 Federal ones) are timely. P. 21
V Concerning the conclusions on the ‘Federal
Defendants’ motion to dismiss. P.
23
A There is no Federal claim
against any ‘federal defendants’ in their official capacities. P.
23
B Robinson should not be given any judicial
immunity. P. 24
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
Proof Of Service
I, the undersigned, certify and declare that, on September
2006, I served a true copy of the Written Statement of Objections to the Report
and Recommendation with Memorandum of Points and Authorities, by hand delivery or fax to:
Mr. Robert Lester,
Attorney of record for the US (Defendant), Room 7516 Federal Building,
300 North Los Angeles Street, Los Angeles, CA 90012, Fax: (213) 894-7819.
Mr. Maranga and Mrs.
Ellyatt, Attorney for the Los Angeles County
(defendant), at 5850 Canoga Avenue, suite 600, Woodland Hills, CA 91367, Fax
: (818) 380 0028.
Los Angeles County, defendant, at 500 West Temple Street, Los Angles CA
90012, (Board of Supervisors office).
Mrs. Jung D. Shin, Deputy Attorney General, attorney for the State of California employees defendants, 300 South Spring, Suite 5212, Los Angeles, CA 90013.
I hereby certify under the penalty of perjury that the foregoing is true and correct. I also certify that I don’t know anybody who can do the service for me, and that I do not have any money to pay someone to do the service for me, or to do the service in any other way.
Pierre Genevier