423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
United States District Court
For the Central District of California
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
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.
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
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
423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Emails: email@example.com, firstname.lastname@example.org
United States District Court
For the Central District of California
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.