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 Recommendations
Eduardo Aguirre et Al. | Dated 1-23-07
Defendants | with Memorandum of Points
| and Authorities
| To Honorable Judge Abrams
Plaintiff, Pierre Genevier, presents the following objections to the 2nd report and recommendations of Magistrate Judge Abrams dated 1-23-07:
1) Concerning the dismissal of ‘tort claims against the US with leave to amend’ (plaintiff assumes that Judge Abrams refers to the common law conspiracy and negligence causes of action).
Plaintiff opposes the US substitution for Robinson for the common law conspiracy cause of action which describes a criminal conspiracy to hurt plaintiff, to cover up civil servant wrongdoings, to prevent plaintiff from obtaining justice and from resettling (…) because Sara Robinson (or any US Attorney) could not (cannot) be acting within the scope of her (his) employment when she (he) criminally conspired (commit a crime) – the opposition to the substitution is for this precise act of conspiring to hurt an individual, to cover up wrongdoings (…) not for the negligence cause of action (‘tort claim against a federal employee involving multiple acts or incidents is considered on an act-by-act for purpose of Westfall Act Certification’.).
Moreover, US Attorney Wong Yang is not an impartial officer to make the certification because she was informed of Robinson wrongdoings (and did not stop them), and her office refused to investigate the criminal wrongdoings of the case. Finally, the complaint wording was clear enough to explain that plaintiff had presented a claim and it gave the dates the claim was presented, so there is no need to force plaintiff to amend his complaint.
2) Concerning the dismissal of 'Federal civil right and conspiracy claims against the US motion with prejudice’ (plaintiff assumes that Judge Abrams refers to the civil rights and conspiracy to interfere to with civil rights causes of action).
Plaintiff did not (and did not intend to) describe any civil right claims against the US (see previous objections), but if the Court wants to dismiss claims that do not exist, it is welcome to do so. Plaintiff would be grateful to the Court if it could refer to the claims or causes of action by the names or numbers used in the complaint.
Plaintiff respectfully ask Judge Abrams and Judge Guilford (a) to strike Robinson certification for the common law conspiracy (and civil rights causes of action no 1, 2, and 3), (b) to deny the US substitution for Robinson in the common law conspiracy cause of action, to deny the US motion to dismiss the negligence and common law conspiracy causes of action, and to order the US and Robinson in her individual capacity to answer to the negligence and the common law conspiracy causes of action.
Dated: February , 2007
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. On December 28 2006, the District Judge followed the recommendations of the magistrate Judge and dismissed the claims against the 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) for the civil rights causes of action. He also denied the supplemental jurisdiction for the negligence cause of action against the LA County. On January 23 2007, the magistrate judge recommended the dismissal of (a) the ‘civil rights and conspiracy claims against the United States with prejudice and without leave to amend’, and (b) of the ‘tort claims with leave to amend’; it also ordered plaintiff to file a first amended complaint on a date to be set by the court.
Plaintiff files now these objections to mention again that he never did and never intended to file a complaint for (a) civil rights or (b) conspiracy to interfere with civil right against the US. Second, plaintiff explained that Robinson was not acting within the scope of her employment when she conspired to hurt plaintiff, to cover up civil servant wrongdoings, (..)(allegations presented in the common law conspiracy claim that amount to a criminal conspiracy. See complaint page 24), and therefore that the US should not be substituted in place of Sara Robinson in the common law conspiracy claim. Plaintiff also argues that US Attorney Wong Yang is not an impartial officer to do the certification. And finally, plaintiff statement that he filed a claim in the complaint was clear enough and meaningful enough, so there is not need to force him to re-file an amended complaint.
II Concerning the dismissal of ‘tort claims against the US with leave to amend’ (plaintiff assumes that Judge Abrams refers to the common law conspiracy and negligence causes of action).
1. Notice of substitution.
Judge Abrams states on page 5 line 18 that ‘Plaintiff contends that (a) the certification is very general; (b) depriving plaintiff of civil rights or conspiring to interfere with someone’s civil right is not within the scope of Robinson’s work; (c) Robinson was not defending her client…at the time she made various statement…; and (d) the United States Attorney for the Central district of California is not an impartial officer to write the certification’.
Judge Abrams ignores a critical argument, on page 7 of his opposition to the US motion to dismiss, plaintiff wrote that ‘ the certification was ‘not appropriate for the grave and criminal wrongdoings’, and that he opposed the certification for ‘those grave wrongdoings – the ones described in causes of action (1) deprivation of civil rights, (2) conspiracy to interfere with civil rights, and (3) common law conspiracy.’ Not just the (a) civil right and (b) conspiracy to interfere with civil right causes of action, as Judge Abrams writes it. And of course plaintiff does not oppose the certification for the negligence cause of action. To criminally conspire is not the same thing or the same act as a negligent act, and a ‘tort claim against a federal employee involving multiple acts or incidents is considered on an act-by-act for purpose of Westfall Act Certification. The Attorney General can certify which acts or incidents were within the scope of employment and maintainable against the US [Lyons v. Brown (1st Circ. 1998) 158 F 3d. 605, 610-611]’ (Rutter Federal CP before trial 7:18.2). In Lyons also on page 605 the Court states: ‘Where a single case involves multiples claims, Westfall Act “scope of employment’ certification is properly done at least down to the level of individual claims and not for the entire case viewed as a whole 28 USCA 2679 (c)”. Yang’s certification is not a proper act-by-act or even claim-by-claim certification, and it does not address the gravity of criminal conspiracy (and civil rights) causes of action (1, 2, 3).
Judge Abrams also writes: ‘Conduct is within the scope of employment as long as it ‘is not unusual or startling that it would seem unfair to include the loss resulting from it among other costs of employer’s business’. Plaintiff would be grateful to the Court if it read again the allegations in no 111 of the complaint page 24, because it describes a very ‘unusual or startling’ conduct – to conspire to hurt an individual (to make him sick to death…), to corruptly maintain a legal proceeding, to cover up civil servants wrongdoing, to prevent the press and media from talking about a proposal that could have prevented the war in Iraq… is not a ‘usual’ type of behavior, and it would be very unfair to let the US bare the cost of this unusual conduct, especially after it had spent so much on the War in Iraq (more than $400 billions already)(moreover plaintiff continues to suffer today from the wrongdoings)! Again to commit a crime cannot be part of the scope of a US attorney’s work! Certification must be stricken for the common law conspiracy cause of action (and the civil rights causes action).
Then Judge Abrams argues on page 6 line 23 that ‘Plaintiff does not
even purport to assert that Robinson took any action that was not consistent
with typical functions of her job as an AUSA. Nor does plaintiff offer any evidence that Robinson “substantially deviated from her duties for personal purposes”. Consequently, plaintiff request to strike the certification of Robinson is denied.’
This is also incorrect. First, plaintiff did not ask the Court to strike the certification of Robinson for all her actions (see opp. Page 7 line 22-25), he made difference between the various causes of actions, and he argued that the act of conspiring to hurt an individual … (or the deprivation of civil right, and conspiracy to interfere with civil right) is not consistent with typical functions of the AUSA job. The complaint alleges a criminal conspiracy and the Court must accept as true the allegations until they have been proven to be wrong which is not the case yet.
And plaintiff does offer evidences that ‘Robinson substantially deviated from her duties for personal purpose’ when he stated that Robinson could not pretend that plaintiff was not a refugee for the Department of Homeland Security purpose or benefit when, at the same time, this Department of Homeland Security was certifying that plaintiff was indeed a refugee [see opp. page 8 line 11]. She had to do this for a ‘personal purpose’ - to cover up the defendant (Dotson) that worked on the same floor as her in the federal building (among other), most probably a friend, and to hurt a foreign individual (hate crime, crime based on national origin). [Again the refugee status is matter of life and death, so her statement was death sentence!] In one of her pleadings she even pretended that the initial complaint was only directed against this specific defendant (Dotson) only!
2. The origin of the certification.
Judge Abrams did mention that plaintiff thought that the US Attorney
Yang was not an impartial officer to make the certification that Robinson
was acting within the scope of her employment; but he ignored the arguments presented and did not address the issue in his argumentation although plaintiff did bring (a) a proof that Debra Wong Yang was informed of Robinson wrongdoing, but did nothing to stop them (see opp. page 11 line 9), and (b) a proof that plaintiff had also contacted her office to have the criminal wrongdoings (criminal conspiracy, hate crime) investigated, but that they denied the request (see opp. P 11 line 21), so she cannot be an impartial officer to make the certification (the fact that the certification was not done on a claim-by-claim basis as it should be, confirm this).
Finally, plaintiff also explained that the US Attorney Yang certification proved or indicated that either (a) there is no certification that it is in the interest of the US to defend Robinson in her individual capacity (and that she was acting within the scope of her employment for the criminal or common law conspiracy or civil rights causes of action) by the Attorney General (or his designee) pursuant to 28 CFR 50.15; or (b) if there is one it certifies only the act of negligence, but not the act of conspiring to hurt plaintiff… described in the common law conspiracy (and civil rights) causes of action (1, 2, 3). The certification presented by US Attorney Yang is made pursuant to 28 CFR 15.4 which has different requirements than 28 CFR 50.15 (see opp. P. 10 line 23), and it is not done on a claim-by-claim basis. This is a critical issue, and it was not properly addressed in the previous recommendations and order date 12-28-06, so plaintiff will also filed (in conjunction with these objections) a motion to reconsider the dismissal of Robinson in her individual capacity for the civil right claims because Mr. Lester has not yet proven that he and the US Attorney office had obtained the proper authorization to defend her in her individual capacity (he has not presented the certification pursuant to 28 CFR 50.15). Plaintiff asks the Court to recognize that Yang is not an impartial officer and that her certification is not properly made claim-by-claim, and to strike the certification for the conspiracy cause of action (and civil rights causes action) (1, 2, 3).
3. Presentation of administrative claims, and complaint allegations of the compliance with this duty.
Judge Abrams agreed that plaintiff had presented an administrative claim, and therefore that the Department of Justice and the Department of Homeland Security violated 28 CFR 14 regulating the handling of administrative claims, and were again negligent, but he still uses a questionable ground to justify the dismissal with leave to amend and to force plaintiff to file an amended complaint! According to the Rutter federal, this will open the possibility of a new round of pleading like a motion to dismiss, instead of starting discussing the issues in an answer and in discovery, and this would be unfair.
It is obvious that judge Abrams and the US Attorney Lester know that to present a negligence cause of action (against a public agency) under FTCA, a plaintiff must first file an administrative claim and then he must wait 6 months (or the response of the public agency) before filing his complaint at the Court, so when plaintiff wrote ‘Count 4, Reserved for negligence. (Until 6 months after presentment, claims filed on 9/19/05 and 9/22/05)’ in the complaint p. 28, it necessarily meant that he had filed a claim [one at the LA County and one for the US (at the federal agencies concerned) on the dates mentioned]. Because of the filing of the other causes of action, plaintiff had to mention that the negligence cause of action was valid only 6 months after he presented his claim (and he had to put the date he presented the claim).
Moreover, the meaning of these words and of the dates (‘Count 4, Reserved for negligence. (Until 6 months after presentment, claims filed on 9/19/05 and 9/22/05)’) was even more obvious if (or when) the US Attorney reads the cover letter of the claim addressed to the US (various federal agencies concerned, see opp. exh. 1) that was stamped September 22 2005. If the various federal agencies (DHS, DOJ) had not been negligent, the word would have been even more meaningful, so there is not need to blame plaintiff for their negligence or new wrongdoings by criticizing a complaint that was precise enough!
Plaintiff copied this way of doing from an example brief written by a lawyer, so the Court cannot pretend that it was not clear. The plaintiff respectfully asks the Court to deny the US motion to dismiss the negligence and the common law conspiracy causes of action, and to ask the US and Robinson in her individual capacity to answer the complaint (for the negligence and common law conspiracy causes of action) [a mention ‘for the LA County’ and ‘under FTCA’ can be added by hand by the Court on the complaint between ‘Claims filed’ and ‘on 9/19/05’ and ‘and’ and ‘9/22/05’ as it is allowed by the California rule of court number 3.1324 d), if the defendant and the Court still wants to see it]. The Court must not encourage the negligence of the Department of Justice that should have transferred the claim, registered it and investigate it (as well as the DHS). Plaintiff would like to remind the Court that he lives in very difficult conditions and has a heart disease, and that he has asked the help of the justice to resolve (and obtain a compensation for) his immigration problems after he had done everything possible outside the Court system. It is unfair to delay the proceeding or to let him live in so difficult condition with his health problems. Plaintiff asks therefore also again the Court to grant the refugee (or other) benefits to help him improve his diet and health, and to avoid him from being sent in the street, or/and dying before the end of the case!
The Defendant US (DOJ, DHS) did not handle the claim properly, did not present the appropriate certification to defend Robinson in her individual capacity pursuant 28 CFR 50.15, or a proper certification on a claim-by-claim basis pursuant to 28 CFR 15.4, the certification presented was not made by an impartial officer (Yang who was informed of Robinson wrongdoings …), the common law conspiracy describes ‘startling and unusual conducts’, and the complaint is clear enough when it mentions that administrative claims have been filed.
Plaintiff therefore respectfully requests that Judge Abrams and Judge Guilford (a) strike the certification that Robinson was acting within the scope of her employment for the common law conspiracy (and civil rights causes action as well), (b) deny the US substitution for Robinson in the common law conspiracy cause of action, (c) deny the motion to dismiss the US for the negligence cause of action and Robinson for the common law conspiracy cause of action, and (d) order the US and Robinson in her individual capacity to answer these causes of action and to start working on discovery. [Plaintiff did not describe (and did not intend to describe) any ‘civil right claims’ against the US – see previous objections, but if the Court want to dismiss claims that do not exist, it is welcome to do so.]
Dated: February , 2007
423 E 7th street (RM 528)
Los Angeles, CA 90014
Ph.: (213) 622-1508
Emails: firstname.lastname@example.org, email@example.com
United States District Court
For the Central District of California
Proof Of Service
I, the undersigned, certify and declare that, on February 2007, I served a true copy of the Written Statement of Objections to the Report and Recommendations Dated 1-23-07 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.
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.