AppellantsOpeningBriefIntroduction

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Finney v. Nugent

Case No. 04-55769

These mischaracterizations create an indelible impression that appellant’s

ADA lawsuit is frivolous and that she is a vexatious litigant. The court did not

recognize that appellant is a former federal fraud, waste, abuse and

mismanagement investigator, who monitored states’ compliance with federal anti-

discrimination/equal opportunity laws as part of her duties.” ER 2 lines 2-4

The district court suppressed that fact and all additional material facts that

show that dismissal of the case with prejudice is clearly erroneous on all grounds.

Even appellees, in their Motion to Dismiss, recognized that:

Appellant is a former federal fraud, waste, abuse and mismanagement

investigator. ER 51 lines 14-15.

Appellant’s state lawsuit involved prior restraint on her First Amendment

rights. ER 51, lines 17-18.

Appellant made two motions, five requests for accommodations, and

three complaints regarding her disability to judges and court executives

in the superior and appeals court. ER 51, lines 18-24; 52, 53, lines 1-10,

25-28; 54 lines 1-2.

In fact, one request was not granted by Judge Nugent. Judge Nugent

delayed another request and only granted it subsequent to appellant’s series of

complaints and motions to disqualify him for bias. Another request to Judge

Nugent was made and granted pursuant to his retaliatory act to effectively rescind

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the relief granted by the prior request. Judge Nugent sanctioned appellant

$1119.00 for moving that state defendants’ attorneys reasonably accommodate her

disabilities in the state lawsuit.

Judge Weber improperly characterized appellant’s complaints and rubber-

stamped Judge Nugent’s ruling without a proper investigation. Judge Strauss

refused to investigate complaints against Judges Nugent and Weber. Judge

McConnell failed to respond to two requests for accommodation to access the

appellate court. Appellant was denied any meaningful opportunity for review.

The district court also suppressed all facts that referenced discrimination,

deliberate indifference, discriminatory animus, retaliation and fraudulent

misrepresentation, as well as all facts that referenced that the aforementioned

illegal conduct was undertaken pursuant to the facially unconstitutional,

discriminatory CRC 989.3 and in conspiracy among appellees themselves and in

concert with state defendants. Suppression was so deliberate that the words

“discrimination,” “deliberate indifference,” “discriminatory animus” and

“retaliation” are neither found in nor referenced by the Court’s Order.

The district court suppressed the material fact that the express purpose of

CRC 989.3 is to assure compliance with ADA requirements by the California

courts. The U.S. Supreme Court has ruled that in order to achieve “complete

justice” district courts have the obligation to “render a decree which will so far as

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possible eliminate the discriminatory effects of the past, as well as to bar like

discrimination in the future.” Albermarle Paper Co v. Moody, 422 U.S. 405, 418

(1975).

The district court is not entitled to act as if appellant’s facts did not exist.

Failure to consider key aspects of the record is a defect in the fact-finding process.

Miller-El v. Cockrell, 537 U.S. 346. The process of explaining and reconciling

seemingly inconsistent parts of the record lays bare the judicial thinking process,

enabling a reviewing court to judge the rationality of the fact-finder’s thinking.

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). By contrast, failing to take into

account and reconcile key parts of the record casts doubt on the process by which

the findings were reached and hence on the correctness of the findings. Gui v. Ins,

280 F.3d 1217, 1228 (9th Cir. 2002).

In USA v. State of Nevada, No. 00-17330 (9th Cir. 2001) the Ninth Circuit

recognized the U.S. Supreme Court’s ruling that:

“The district court has jurisdiction if the right of the petitioners to recover

under the complaint will be sustained if the Constitution and the laws of

the United States are given one construction and will be defeated if they

are given another, unless the claim clearly appears to be immaterial and

made solely for the purpose of obtaining jurisdiction or where such a

claim is wholly insubstantial and frivolous.” Steel Co v. Citizens for a

Better Env’t, 523 U.S. 83, 89 (1998).

In Ultramar America Ltd v. Dwelle, 900 F.2d 1412 (9th Cir. 1990), the court

held that:

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“[W]hether the complaint states a claim ‘arising under’ federal law must

‘be ascertained by the legal construction of [the plaintiff’s] allegations,

and not by the effect attributed to those allegations by the adverse

party.’”

Here, the district court erred in allowing defendants to repackage plaintiff’s

complaint to fit their interpretation of the evidence. It is the plaintiff’s prerogative

“to make violation of [a] Constitutional provision [ ] the basis of the suit.”

Moreover, the Ultramar court recognized that:

“In addition to jurisdiction pursuant to 28 U.S.C § 1331, the federal court

has jurisdiction to hear the case under 28 U.S.C § 1345. That statute

provides the district court with original jurisdiction of all civil actions

commenced by the United States. The Nevada district court recognized

that the statute granted it jurisdiction by virtue of the fact that the

United States was the plaintiff in the case. Therefore, regardless of the

outcome of federal question jurisdiction, the district court has

independent subject matter jurisdiction under 28 U.S.C. § 1345.”

ADA Title II provides for enforcement by DOJ and by private

attorneys general. Appellant has the option to request that DOJ prosecute

appellees. If the district’s court’s Order is not reversed, this suit, if filed by DOJ,

would be barred on the basis of jurisdiction.

ADA provides the basis for both subject matter jurisdiction of the federal

court and appellant’s substantive claims for relief. The question of jurisdiction and

the merits of an action are intertwined where:

“…a statute provides the basis for both the subject matter jurisdiction of

the federal court and the plaintiff’s substantive claim for relief.” Sun

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Valley Gas, Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983). See

also Thornhill Publ’g Co. v. Gen. Tel. Co., 594 F.2d 730, 734 (9th Cir.

1979) (“[W]hen a statute provides the basis for both the subject matter

jurisdiction of the federal court and the plaintiff’s substantive claim for

relief, a motion to dismiss for lack of subject matter jurisdiction rather

than for failure to state a claim is proper only when allegations of the

complaint are frivolous.” (quotation omitted).

The district court erred in dismissing the complaint for lack of subject

matter jurisdiction, because the jurisdictional issue and the substantive issues in

this care are so intertwined that the question of jurisdiction is dependent on the

resolution of factual issues going to the merits.

Appellees have asserted a facial attack, not a factual attack, that the

allegations in the complaint are insufficient on their face to invoke federal

jurisdiction. However: “[j]urisdictional dismissals in cases premised on federal-

question jurisdiction are exceptional and must satisfy the requirements specified in

Bell v. Hood, 327, U.S. 678 (1946).” Sun Valley Gas, supra.

In Bell the U.S. Supreme Court determined that jurisdictional dismissals

are warranted:

“Where the alleged claim under the constitution or federal statutes clearly

appears to be immaterial and made solely for the purpose of obtaining

federal jurisdiction or where the claim is wholly insubstantial and

frivolous.” 327 U.S. at 682-82.

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The Ninth Circuit has expressly concluded that federal question jurisdiction

existed over an appellant’s petition, because it expressly alleged manifest disregard

of federal law, specifically the Americans with Disabilities

Act. Luong v. Circuit City Stores, 368 F.3d 1109-1112 (9th Cir. 2004).

D. The District Court Erred By Dismissing Pro Se Claims With Prejudice For

Which Relief Is Available.

Rule 12(b)(6) motions are viewed with disfavor. Gilligan v. Jamco Dev.

Corp, 108 F.3d 246, 249 (9th Cir. 1997) When ruling on a 12(b)(6) motion, the

complaint must be construed in the light most favorable to the plaintiff. Parks Sch.

of Bus. Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court must

accept as true all material allegations in the complaint, as well as any reasonable

inferences drawn from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

Facts raised for the first time in opposition papers should be considered by the

court in determining whether to grant leave to amend or to dismiss the complaint

with or without prejudice. Orion Tire Corp v Goodyear Tire & Rubber Co., 268,

F.3d 1133, 1137-38 (9th Cir. 2001).

Pro se complaints should be dismissed only if it is beyond doubt that the

plaintiff can prove no set of facts in support of his claim that would entitle him to

relief. AKAO v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987). The issue is not

whether a plaintiff will ultimately prevail but whether the claimant is entitled to

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offer evidence to support the claims. Indeed, it may appear on the face of the

pleadings that a recovery is very remote and unlikely but that is not the test.

Schever v. Rhodes, 416 U.S. 232, 236 (1974).

Pro se complaints are held to less stringent standards than formal pleadings

by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam.)

”In civil rights cases where the plaintiff appears pro se, the court must

construe the pleadings liberally and must afford the plaintiff the benefit

of any doubt.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,

623 (9th Cir. 1988).

Appellant alerted the district court to the specific basis of her claims. The

Ninth Circuit’s rulings support the sober reality that, “[p]resumably unskilled in

the law, the pro se litigant is far more prone to making errors in pleading than the

person who benefits from the representation of counsel.” Lopez v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (en banc).

Article VI of the Constitution provides that the laws of the United States

“…shall be the supreme law of the land; any Thing in the Constitution or laws of

any state to the Contrary notwithstanding.” U.S. Constitution Article VI, cl.2. “The

purpose of Congress is the ultimate touchstone of preemption analysis.”

Cipollone v. Liggett Group, Inc, 505 U.S. 504, 516 (1992).

The Ninth Circuit has based its preemption analysis on the Supreme Court’s

three categories: (1) express preemption, (2) field preemption and (3) conflict

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preemption, where state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress. Industrial Truck Ass’n,

Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997).

Appellant relies upon express declarations of the public interest by

Congress, which are entitled to deference. The Supreme Court has held that, in

considering the public interest, courts must defer to Congress’ considered

judgment when that judgment is clearly reflected in enacted legislation.

The leading case is Virginian Ry. Co. v.System Federation No. 40, 300

U.S. 515 (1937), in which the Supreme court stated that “[i]n considering

the propriety of the equitable relief granted here, we cannot ignore the

judgment of Congress” which is “deliberately expressed in legislation.”

Id. at 551. This is because “[t]he fact that Congress has indicated its

purpose [in a statute] is in itself a declaration of the public interest and

policy which should be persuasive in inducing the courts to give relief.”

Id. at 552 (emphasis supplied).

E. The District Court Erred by Misapplying the Rooker-Feldman Doctrine

The district court, not only suppressed material facts, but also ignored Ninth

Circuit law, both of which created a pretext to dismiss with prejudice on the basis

of the Rooker-Feldman Doctrine.

The district court cited Eighth Circuit precedent to justify “the preclusive

effect” of a state court judgment in the Ninth Circuit. Fielder v. Credit Acceptance

Corp., 188 F.3d 1031, 1034 (8th Cir. 1999). The court followed its pattern by

ignoring not only appellant’s facts, but also appellant’s citation of controlling

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Ninth Circuit case law regarding application of the Rooker-Feldman Doctrine. ER

180-183.

Appellant relied on Kougasian v. TMSL, Inc. 359 F.3d 1136, 1140 (9th

Cir. 2004), stating that the decision “eviscerated” defendants’ Rooker-Feldman

arguments. ER 88-89. Plaintiff’s Complaint stated that:

“Defendant Nugent’s ruling ignored plaintiff’s substantial justification

and other circumstances in filing her motion and improperly awarded

$1119.00 in sanctions to DMHC, ignoring plaintiff’s undisputed evidence

that the attorneys fees are bogus and the declarations on which they

based are false. [emphasis supplied]” ER 8, lines 9-13.

As in Kougasian, appellant sought to set aside state court judgments on

the ground that her adversary had committed extrinsic fraud on the state court.

The district court erred by not considering the issue of claim preclusion as

separate and distinct from the Rooker-Feldman doctrine. Noel v. Hall, 341 F.3d

1148, 1154 (9th Cir. 2003). Again, the district court ignored Ninth Circuit

precedent, and instead relied on Fielder, supra and Charchenko v. City of

Stillwater, 47 F.3d 981, 983 (8th Cir. 1995).

The district court found that Noel is “not applicable” in this case and that

“…plaintiff misreads and misconstrues the holding of Noel.” ER 182 ll. 3-5. The

district court found that appellant’s ADA complaint was a de facto forbidden

appeal and that all her claims and requests for relief were “inextricably

intertwined” with state court judgments. The district court relied on Tenth Circuit

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precedent to support its ruling that appellant’s request for declaratory relief is

“inextricably intertwined” with the state court judgment.

Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). ER 182 lines 25-28, 183,

line 1.

By ignoring and failing to apply appellant’s detailed statement of facts in

her complaint to Ninth Circuit binding precedent, the district court generalized that

“review of Judge Nugent’s rulings, his application of CRC 989.3 and the

administration of the state court action” are all forbidden under the Rooker-

Feldman Doctrine. “Accordingly, this Court lacks subject matter jurisdiction over

plaintiff’s case and, therefore, must dismiss the case in its entirety.” ER 183, lines

12-18.

The district court ignored all facts in the complaint pertaining to

constitutional/ADA violations by Judges Weber, Strauss and McConnell and by

Director Vickrey. Their acts and omissions are completely unrelated to Judge

Nugent’s purportedly judicial decisions in the state court action. Rather than being

inextricably intertwined, their failure to investigate, to properly investigate, and to

accommodate denied appellant any opportunity for review, much less a meaningful

review, in state court. The only way in which appellees’ acts and omissions are

inextricably intertwined is through their conspiracy to violate appellant’s

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constitutional and ADA rights, to tamper with jury records and to evade review by

this Court.

The district court’s order forbids any appeals of discrimination, deliberate

indifference, discriminatory animus and retaliation which violate appellant’s

fundamental constitutional and ADA rights. This order decreed that all appeals of

ADA violations occurring in state courts by state court entities, judges, and

administrators are forbidden de facto appeals in both state and federal courts. The

district court manifestly disregarded any application of ADA Title II to the state

courts. The only context in which state court entities, judges and administrators

are subject to by ADA is in access to state court programs, services and activities

of these courts, which appellees control, in addition to architectural barriers.

The Ninth Circuit’s opinion in Maldonado v. Harris, (9th Cir., June 4,

2004)__F.3d__2004 Daily Journal DAR 6621, 2004 WL 1233987, subsequent to

the district court’s Order, supports appellant’s interpretation of Noel, supra in

addition to appellant’s interpretation and application of Ninth Circuit Rooker-

Feldman opinions concluding that the district court is not deprived of jurisdiction,

i.e.:

1. Challenging the continued application of unconstitutional state

statutes in federal court is not barred by the Rooker-Feldman Doctrine.

2. The issue of claim preclusion is distinct from the Rooker-Feldman

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question.

3. If the federal plaintiff does not allege as a legal wrong, an erroneous

decision from the state court, the “inextricably intertwined” test does

not come into play.

4. Even when a federal plaintiff is expressly seeking to set aside a state

court judgment, the Rooker-Feldman Doctrine may not apply, citing

Kougasian, supra.

5. As in Maldonado, appellant could not raise facial and as-applied

constitutional challenges pursuant to U.S.C. §§ 1983 and 1985 in the

state

lawsuit. Federal defendants were not defendants in the state

lawsuit. In other

words, appellant had no cause of action against them.

6. Regarding common law claim preclusion, in California, a final judgment

precludes further proceedings if they are based on the same cause of action.

The primary right to be free of disability discrimination by the California

courts is not the same primary right to be free of prior restraint on speech in

the doctor-patient relationship.

“Because the primary rights involved in the two suits are different, the

causes of action are also different, and the judgment against

[Maldonado] in the [nuisance] action therefore does not bar any of his

federal claims.” Maldonado, Id.

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7. Even though the two suits involve the same nucleus of facts, they do not

necessarily raise the same cause of action under California law, Maldonado,

citing Morris v. Blank, 114 Cal. Rptr. 2d 672 (Cal. Ct. App. 2001).

8. Citing Thomas v. Anchorage Equal Rights Comm’n, F.3d 1134 (9th Cir.

en banc), the Maldonado court stated that ripeness is guided by two

considerations: “The fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration.” Thomas, Id.

at 1141. As in Thomas, withholding consideration of appellant’s ADA

claims will require her to risk her health and safety and to be subject to

monetary and other sanctions in order to be able to challenge the

constitutionality of CRC 989.3 facially and as-applied.

The Ninth Circuit’s opinion in Fontana Empire Center, LLC v. City of

Fontana, 307 F.3d 987, 992 (9th Cir. 2002), supports appellant’s position that her

claims are not barred under Rooker-Feldman, because they are separable from and

collateral to the merits of the state-court judgment, citing Pennzoil Co v. Texaco,

Inc, 481 U.S. 1, 25 (1987)., i.e.: appellant’s federal claims have never been

litigated in state court.

“[A]n issue cannot be inextricably intertwined with a state court

judgment if the plaintiff did not have a reasonable opportunity to raise

the issue in state court proceedings. Absent such an opportunity, it is

impossible to conclude that the issue was inextricably intertwined with

the state court judgment.” Id. (emphasis supplied)

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Judge Fletcher’s concurring opinion in Bianchi v. Rylaarsdam, 334 F.3d 895

(9th Cir. 2003), explained that in Rooker, the U.S. Supreme Court, unlike the other

claims in a California lawsuit, reached the merits of the judicial disqualifications

claim.

“The Court fully and extensively discussed the allegation of judicial bias.

Only after concluding that the claim was without merit, did the Court

dismiss the claim… The Court plainly dismissed the charge only after

considering its merits.” Bianchi, citing Rooker v. Fidelity Trust Co. 263

U.S. 413, 416-17 (1923).

Judge Fletcher opined that:”

“Because this aspect of Rooker has not been overruled, an attack on the

authority of a state court to adjudicate a case because a state court judge

should have been disqualified is not subject to dismissal under the

Rooker-Feldman Doctrine. Congress has not altered the jurisdictional

statutes to abrogate this aspect of Rooker… And none of the Supreme

Court’s other cases that discuss Rooker purports to overrule any aspect

of it either.”

In addition, Judge Fletcher noted that:

“…if Bianchi had come directly to federal court in a §1983 action to

challenge the California Court of Appeal’s disposition of his direct

appeal, his claim could not be dismissed under Rooker-Feldman.

Bianchi, however, did not come straight to federal court, but sought to

vindicate his federal rights in state court. He sought relief from the same

court that allegedly violated his rights…” (emphasis supplied)

Appellant “…presents a set of thorny procedural and substantive

questions…” of first impression for this Court based upon Wong v. INS,

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Case No. 04-55769

No. 02-35727, 9th Circuit, June 25, 2004, which also involved an appeal from a

denial of a motion to dismiss on grounds of immunity.

Appellant’s complaint alleges that California court officials’ decisions

regarding reasonable accommodation of her disability were:

“…inflicted by various kinds of discriminatory animus in violation

of the Constitution’s guarantees against such bias. Her complaint also

alleges that… [the] official handling of these decisions violated [ADA]

and the due process guarantees of the [Fourteenth Amendment]…” Id.

Judge Berzon concluded, in Wong, Id., that the plaintiff’s claims were not

barred from “review of actions that occurred prior to any decision …or to

execute… the order… such as …the officials’ allegedly discriminatory decisions…

‘We would defy logic by holding that a claim for relief somehow arises from

decisions to and actions accomplished only after the injury allegedly occurred.’”

Id. citing Humphries v. Various Fed. USINS Employees, 165 F.3d

936, 944 (5th Cir. 1999).

Appellant applies Wong, Id. in the context that the judges’ individual and

conspiratorial decisions to discriminate based on her disability occurred prior to

any purportedly judicial decisions. The district court’s holding that appellants’

claims for relief from discrimination cannot be reviewed defies logic.

For the aforementioned reasons, Rooker-Feldman does not apply to

appellant’s case, especially to the issue of jury service disability discrimination

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either facially or as-applied. However, the Court should decide whether Rooker-

Feldman bars federal jurisdiction of ADA discrimination claims against state court

entities, judges and court executives. As in Wong, supra allegations should be

sufficient to entitle ADA plaintiffs to relief if plaintiffs are “…ultimately able to

prove that [judicial] officials’ actions were motivated by unlawful discriminatory

animus.”

Judge Berzon also cited Swierkiewicz v. Sorema, 534 U.S. 506 at 514, which

specifically disclaimed any requirement that discrimination plaintiffs plead all

elements of a prima facie case.

The district court erred by misapplying the Rooker-Feldman Doctrine, by

ignoring Ninth Circuit precedent, and by ignoring, mischaracterizing, and

suppressing appellant’s undisputed facts, which show that:

1. “False declarations” by state defendants’ attorneys were an “extrinsic

fraud” on the court, which the trial judge ignored.

2. The Presiding Justice of the Appeals Court was deliberately indifferent

to appellant’s two requests for accommodation and denied appellant any

opportunity for review, much less a meaningful review in state courts.

3. The California court expressly stated that it was not acting “as

contemplated with the ADA” and may never do so on the pretext of “an

enormous budget crisis.”

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4. The Presiding Judge of the Superior Court refused to investigate

appellant’s complaints of disability discrimination by the trial judge, (as

required by Local Court Policy Against Bias), much less act to disqualify

him.

F. The District Court Erred by Misapplying Eleventh Amendment Immunity

The district court appears to have predetermined its decision to dismiss

this case with prejudice by continuing to search for pretexts to justify its decision.

Having arrived at its decision that the entity defendants were entitled to

Eleventh Amendment immunity, the district court made the inferential leap to

the conclusion that the individual defendants could not be held liable.

The district court did not apply the Ninth Circuit’s precedent in Miranda B.

v. Kitzhaber, 328 F.3d 1181, 1184 (9th Cir. 2003), upon which appellant relied to

oppose Eleventh Amendment immunity. ER 100 lines 18-21, 101

lines 25-27. However, the district court applied Miranda B. v. Kitzhaber

to its

analysis of appellant’s ADA claim. ER 187, line 2.

The district court selectively applied Miranda B., ignoring the ruling’s

conclusion in 2003 that Congress had validly abrogated state immunity under Title

The district court incorrectly spells “Kitzhaber” as “Kritzhaber.”

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II one year prior to appellant’s case, decided in 2004. The district court ignored

the Ninth Circuit’s application of Board of Trustees of the U. of

Alabama v. Garrett, 531 U.S. 356 (2001) in Miranda B.:

“We decline further review of our settled precedent.”

The district court did not include any reference to ADA or Rehabilitation

Act in its Eleventh Amendment analysis. The Ninth Circuit stated in Miranda

B. that:

“Of course we have previously allow ex parte Young suits to

proceed under Title II and Section 504 of the Rehabilitation Act…”

We find no difference between declaring that a named officer in her official

capacity represents the State for purposes of the Fourteenth Amendment, and

declaring that the same officer represents a ‘public entity’ under Title II.”

On June 9, 2004, the Ninth Circuit, in Settlegoode, supra, amended its

finding that public entities are liable for compensation under the Rehabilitation

Act, citing Duvall supra. The Ninth Circuit ruled in Lovell, supra that when a

public entity is deliberately indifferent pursuant to the terms of a facially

discriminatory policy, the discrimination is intentional and plaintiffs are entitled to

compensatory damages as a matter of law.

However, the district court dismissed all claims against individual

defendants for money damages on the basis that appellant’s prayer for relief sought

money damages against all defendants. Relief for money damages put defendants

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on likely notice that they were being sued as individuals. Rather than grant leave

to amend the complaint, the court dismissed the claims for

damages with prejudice.

In Miranda B., the Ninth Circuit stated:

“We are addressing only the state’s claims of sovereign immunity at this

juncture, which are completely separable and distinct from the merits of

Miranda’s § 1983 claim.” (emphasis supplied)

Appellant’s Opposition papers recognized that individual defendants can

be sued in their individual capacities. ER 96 line 11. However, rather than grant

leave to amend the complaint to reflect that during the course of proceedings

defendants were put on notice of the potential for individual liability, the district

court dismissed appellant’s §§ 1983 and 1985 due process and conspiracy claims

with prejudice ignoring longstanding Ninth Circuit precedent in Am. Timber &

Trading Co. v. First Nat’l Bank., 690 F.2d 781, 786 (9th Cir. 1982).

The district court also dismissed claims for injunctive and declaratory relief,

although it recognized that the Eleventh Amendment does not bar suits against

state officers in their official capacities to enjoin an on-going violation of federal

law. ER 184, lines 16-18. The district court declined to state why appellant’s

claim for money damages prohibits a separate claim for prospective

injunctive relief from discrimination.

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The district court’s dismissal of appellant’s claim for declaratory relief

pursuant to Rooker-Feldman’s inextricably intertwined analysis based on Tenth

Circuit precedent is inexplicable as applied to the Ninth Circuit’s precedent. ER

88 lines 23-28.

Complaints should not be dismissed when there is any available relief, and

appellant’s pro se complaint should be construed liberally. Specific legal theories

need not be pleaded so long as sufficient factual averments show that the claimant

is entitled to some relief. Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001).

The U.S. Supreme Court in Tennessee v. Lane, supra found that Eleventh

Amendment sovereign immunity was validly abrogated by Congress in ADA Title

II, subjecting states to money damages for discrimination against disabled person

specifically pertaining to access to the courts.

G. The District Court Erred By Misapplying the Doctrines of Judicial and

Quasi-Judicial Immunity.

1. Judicial Immunity

The district court followed its pattern to wrongly justify dismissal of the

case, i.e.:

“Similarly, even if the Court possessed subject matter jurisdiction, the

judges named in this action are entitled to judicial immunity…”

ER 185 lines 6-7.

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The district court’s Order implied that disability discrimination by the

California judges merits absolute immunity from suit. The district court disagrees

with “plaintiff’s contentions” that the judges’ acts were administrative rather than

judicial in nature, finding that: “The acts plaintiff challenges are

judicial in nature and accordingly, the judges are immune from suit.” ER 186

lines 19-20.

In fact, appellant determined that the judges’ acts pursuant to CRC 989.3

were administrative in nature, by relying to her detriment on the fraudulent

misrepresentations made by the Judicial Council’s Access and Fairness

Advisory Committee for judicial officers in “Q&A” on CRC 989.3 that:

“The process is purely administrative… [emphasis supplied]… The

mechanism for requesting the accommodation pursuant to rule 989.3 is not

an adversarial process.” ER 112, No. 3, ¶ 1.

The district court ignored appellant’s facts and incontrovertible documentary

evidence in which appellants’ expressly admit and advertise that judicial immunity

does not apply to requests for disability accommodation by California judges and

jury commissioners.

Moreover, the district court’s discussion in the “factual background”

recognized that appellant filed a complaint for investigation of bias due her

disability, to which Judges Strauss and Weber both responded.

ER 179 lines 18-22.

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The Ninth Circuit’s ruling in Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)

(en banc) clarified the narrow scope of absolute immunity pursuant to U.S.

Supreme Court decisions that were fundamentally inconsistent with the reasoning

of earlier circuit authority involving immunity. The Court noted that a broad grant

of immunity pursuant to the duties of a trial judge in the adversarial [emphasis

supplied] and appellate processes. The Court noted that the Fourth Circuit has held

that investigation is not an activity that qualifies for absolute immunity. Vosburg

v. Dept Soc Services, 884 F.2d 133, 135-138 (4th Cir. 1989), citing the Ninth

Circuit’s decision in Meyers v. Contra Costa

County Department of Social Services, 812 F.2d 1154 (9th Cir. 1987).

The Ninth Circuit decided in Miller, supra that investigative functions are

not judicial and only qualified, not absolute immunity, is available.

Therefore, the judges are not entitled to absolute immunity.

In 1996, three San Diego Superior Court judges were convicted of bribery

pursuant to a scheme to defraud the people of the State of California of their right

to the honest services of judges of the Superior Court for multiple acts of bribery in

violation of California Penal Codes §§ 92 and 93. The Ninth Circuit affirmed their

convictions. USA v. Frega, No. 97-50100, 9th Cir.,

June 8, 1999. Clearly, judges and jury commissioners are not absolutely immune

from acts of bribery, jury tampering and obstruction of justice.

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Appellant alleged that the RICO bribery scheme to fix verdicts did not end

with the convictions of the San Diego Superior court judges in 1996. Rather, the

conspiracy has continued in that defendants in the state lawsuit induced Judges

Nugent, Weber and Strauss to engage in extreme, illegal, and conspiratorial

discrimination to insure the dismissal of appellant’s state lawsuit by exploiting

appellant’s disabilities. ER 28 lines 5-21. The district court’s ruling ignored these

allegations.

Moreover, appellees have tampered with the jury selection records and

process and have obstructed justice to evade review of their non-compliance with

ADA Title II by the Ninth Circuit. [SRJN Exhibits 1-4]. Jury commissioners

have “vacuumed” their files of official court documents that they are required to

maintain under California Code of Civil Procedure. [Addendum pp. 43-50]

Tampering with jury selection records violates California Penal Code. [Addendum

pp. 51-54] This cleansing of court files by returning original documents to

appellant is merely a surreptitious mutation of generic shredding.

It was not appropriate to apply the test for judicial immunity at the Rule 12(b)(6)

stage of the proceedings, as it was inevitable that discovery would have destroyed

this defense. Broam v. Bogan, 320 F.3d 1029 (9th Cir. 2003). The district court

did not consider the effect that the type of relief sought by appellant might have on

their entitlement to absolute immunity. Despite drawing no distinction between

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claims for equitable relief on the one hand, and claims for money damages on the

other, the district court relied on case law that had considered the immunity issue

only in the context of appellant’s claim for

monetary damages. ER 184 lines 26-28, 185 lines 1-4.

Equally clear, however, is the principle that judges are not immune from

suits for prospective injunctive relief. Pulliam v. Allen 466 U.S. 522, 536-543 80

L. Ed. 2d. 565, 104 S. Ct. 1970 (1984). The Pulliam Court addressed the scope of

judicial immunity from a civil suit that sought injunctive and

declaratory relief under § 1983.

Pulliam’s limitation on the scope of absolute immunity is

uncontroverted, yet the district court did not even cite this case. The district

court never considered the impact that the type of relief has on the issue of judicial

immunity, a significant mistake in light of Pulliam’s holding. The Pulliam Court

noted that a state acts only through its legislative, executive or judicial authorities.

The judges were sued strictly in their official capacities which, “for all practical

purposes, [is a suit] brought against the State.” Hutto v.

Finney, 437 U.S. 678, 699, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978).

2. Quasi-Judicial Immunity

The district court failed to identify the facts and their application to case

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law supporting its determination that Director Vickrey is entitled to absolute quasi-

judicial immunity. The Administrative Director of the Courts administers CRC

989.3, a facially unconstitutional, discriminatory law administered in accordance

with discriminatory procedures to enforce it. He implements ADA pursuant to the

administrative duties that have been assigned to him and does not exercise a quasi-

judicial function entitled to absolute immunity. Duvall, supra.

The fact that the Director administers CRC 989.3 at the discretion of the

Judicial Council of California supports a strong inference that the Council has

actual or constructive knowledge of its intentional imposition of discriminatory,

judicial adversarial procedures upon disabled persons who are expressly

misinformed and intentionally misled to believe that the process is “purely

administrative.” As the Judicial Council of California has expressly stated that

CRC 989.3 is “purely administrative,” Director Vickrey is not entitled to quasi-

judicial immunity.

H. The District Court Erred by Ignoring Ninth Circuit ADA and Rehabilitation

Act Decisions.

The district court recognized appellant’s Rehabilitation Act claims. ER 179

lines 5-6. Yet the district court followed its pattern of ignoring appellant’s facts

and requested relief, in addition to ignoring Ninth Circuit precedent. The district

court’s Rooker-Feldman analysis justifying dismissal of all ADA Title II claims, as

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“inextricably intertwined with the forbidden de facto appeal of her state court

action,” (ER 187 lines 6-10) does not comport with Ninth Circuit law.

The district court’s citation of Alsbrook v. City of Maumelle 184 F.3d

999, 1005 n.8 1011-12 (8th Cir. 1999) in this case in 2004 (ER 187 line 5), is not

consistent with the Ninth Circuit’s opinion reached two-and-one-half years earlier

in another case. Douglas v. California Department of Youth Authority,

271 F.3d 872, 819-21 (9th Cir. 2001).

In Douglas, the Ninth Circuit compared its holding in Dare v. State of

California, 191 F.3d 1167, 1175 (9th Cir. 1999) to Alsbrook, supra, recognizing the

division in the circuit courts pertaining to ADA and the Fourteenth Amendment.

The Douglas Court noted that four years earlier, the Ninth Circuit ruled in Clark v.

State of California, 123 F.3d 1267, 1271 (9th Cir. 1997) that the State of California

waived its Eleventh Amendment immunity. The Douglas Court noted that the

Eighth Circuit had also reached the Ninth’s Circuit’s conclusion that states are

subject to suit in federal court under the Rehabilitation Act, if they accepted federal

funds. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) en banc, one year

subsequent to Alsbrook.

The district court recognized appellant’s claims for violation of the

Rehabilitation Act and facial discrimination and should have applied Douglas,

supra in which the Ninth Circuit examined claims of systemic policies and

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practices in which both the discrimination and injury were ongoing. However, the

district court did not conclude that appellant’s Rehabilitation Act and facial

discrimination claims were also inextricably intertwined with the forbidden de

facto appeal. These claims were simply ignored, as was the Ninth Circuit’s

decision in Lovell v. Chandler, supra that (pursuant to facially discriminatory

policies), public entities that have notice that accommodation is required and

that fail to act are subject to compensatory damages as a matter of law.

As the district court also cited Miranda B., supra, it should have been aware

of the Ninth Circuit’s findings that ADA Title II is based on the remedial measures

of the Rehabilitation Act, which in turn incorporated the remedies in Title VI of the

Civil Rights Act of 1964. See 42 U.S.C. §12133 and 29 U.S.C.

§ 794a(a)(2). Title VI does not prescribe any specific defendants, nor limit the

remedies available against a state or public official.

“…the test for when ex parte Young allows suits against officials to

proceed is quite simple: …a court need only conduct a ‘straightforward

inquiry into whether [the] complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.’”

Miranda B., supra also decided that plaintiffs can properly bring a

cognizable due process claim against state officials separate from a claim under the

ADA and Rehabilitation Act.

I. The District Court Erred by Ignoring Supplemental State Law Claims

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True to its pattern, the district court ignored supplemental state law claims

and wrongly dismissed them with prejudice, which has precluded all remedies for

ADA violations. California Government Code § 11135 requires state funded

programs to comply with ADA and Rehabilitation Act. Appellees have stated that

they have not and may not provide access “…as contemplated by the Americans

with Disabilities Act” (ER 161) due to “…an enormous budget crisis,” which is

their burden to prove. Olmstead v. L.C. (1999), 527 U.S. 581 [144 L. Ed 2d 540].

The public entity has the burden of persuasion that appellant’s request for

accommodation and other compliance requests would impose an undue financial

hardship on the state. 28 C.F.R. § 35.130 (b)(7). CRC 989.3, enacted in 1996

purportedly to comply with ADA requirements, is rendered meaningless by

appellees’ failure to fund its enforcement.

The Ninth Circuit has ruled on this exact circumstance Bahrampour v.

Lampert, No. 02-35194, 9th Circuit, filed January 13, 2003. In exercising its

discretion to decline supplemental jurisdiction, a district court must undertake a

case-specific analysis to determine whether declining supplemental jurisdiction

“comports with the underlying objective of most sensibly accommodate [ing] the

values of economy, convenience, fairness and comity.” Executive Software N. Am.

Inc v. United States District Court, 24 F.3d 1545, 1557-58 (9th Cir. 1994).

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Case No. 04-55769

Appellant’s state law claims are related to her federal claims and form part

of the same case or controversy. Because the district court ignored supplemental

jurisdiction claims, this Court must reverse the dismissal of the state claims, if it

reverses dismissal of the federal claims. Am. Ad. Mgt., Inc v. Gen. Tel. Co., 190

F.3d 1051, 1060-61 (9th Cir. 1999).

J. The District Court Has an Irreconcilable Conflict of Interest

In USA v. Frega, supra, all district court judges recused themselves.

Appellant has alleged that state defendants and appellee judges may have violated

California Penal Code Sections 92 and 93. In order to evade review this

conspiracy has been expanded to obstruct justice in violation of California Penal

Code Section 96.5(a). These acts could result in referral to the U. S. Department of

Justice. The undisputed direct and circumstantial evidence, pleaded with

particularity, shows that the acts and omissions are so blatantly illegal, extreme and

conspiratorial that the possibility of criminal conduct is not remote. This evidence

is consistent with appellant’s federal fraud investigation experience and with the

direct and circumstantial evidence. Indeed, appellees have offered pretextual

reasons, which have been successfully rebutted. Appellant’s facts remain

undisputed.

Appellees have violated California Codes of Civil Procedure §§ 196, 204,

207, 208, CRC 860 and California Penal Code § 96.5 by intentional spoliation of

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documents regarding individual juror selection for the purpose of jury tampering in

an attempt to avoid suit for ADA violation of jury service programs. (SRJN

Exhibit Nos. 1-4), [Addendum pp. 43-57]

The American Bar Association “…named a commission to promote jury

service and a separate panel to work on standards to make service easier. Supreme

Court Justice Sandra Day O’Connor was named honorary Chairwoman of the

commission. She said in a speech last year ‘…that reforms were needed. We have

made it very tough for juries… Sometimes the conditions in which they have to sit

and wait are abysmal… Most people look forward to jury service.’” San Diego

Union-Tribune, August 9, 2004, p.A-10. [Addendum, pp. 79-80] Appellees have

conspired to evade Ninth Circuit review to protect the conspiracy by tampering

with appellant’s jury service documents.

The Ninth Circuit ruled in Mendocino Env’l Ctr. v. Mendocino County, 192

F.3d 1283, 1302 (9th Cir. 1994):

“To estimate the defendants liability for a conspiracy a plaintiff must

demonstrate the existence of ‘an agreement or meeting of the minds to

violate constitutional rights.’” United Steelworkers of America v. Phelps

Dodge Corp, 865 F.2d 1539, 1540-41 (9th Cir. 1998) (en banc) quoting

Fonda v. Gray, 707 F.2d 435, 483 (9th Cir. 1983). The defendants must

have, “by some concerted action, intend[ed] to accomplish some unlawful

objective for the purpose of harming another which results in damage.”

Gilbrook v. City of Westminister, No. 96-56306, Slip op. at 4836 (9th Cir.

May 21, 1999) (quoting Vieux v. East Bay Reg ‘l Park Dist., 906 F.2d 1330,

1343 (9th Cir. 1990).

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“Such an agreement need not be overt, and may be inferred on the basis of

circumstantial evidence such as the actions of the defendants. See Id. at

4836. For example, a showing that the alleged conspirators have committed

acts that are ‘unlikely to be undertaken without an agreement’ may allow a

jury to infer the existence of a conspiracy. Kunik v. Racine County, 946 F.2d

1574, 1580 (7th Cir. 1991)… To be liable, each participant in the conspiracy

need not know the exact details of the plan, but each participant must at least

share the common objectives of the conspiracy.” Phelps Dodge, 865 F.2d at

1541.

This case must be remanded to a district court in a different jurisdiction to

preserve the appearance of fairness and impartiality. The judges in the District

Court of Southern California have the same conflict of interest in 2004 that they

expressly recognized in 1996 pertaining to judging criminal allegations by San

Diego Superior Court judges.

The supervisory powers conferred on federal courts of appeal by 28 U.S. C.

S.C. § 2106 permit the Ninth Circuit to reassign cases, when the court remands

them. Air-Sea Forwarders, Inc. v. Air Asia Co. Ltd., 880 F.3d 176, 191 (9th Cir.

1989).

In deciding whether reassignment is appropriate, the court makes two

inquiries. First, the court asks whether the district court has exhibited personal bias

requiring recusal from a case. United States v. Sears, Roebuck & Co., 785 F.2d

777, 779-80 (9th Cir. 1986). Absent a showing of personal bias, the court must

decide whether “unusual circumstances” warrant reassignment Id. at 780. The

factors for determining “unusual circumstances” are:

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“(1) Whether the original judge would reasonably be expected upon

remand to have substantial difficulty in putting out of his mind

previously expressed views or findings determined to be erroneous or

based on evidence that must be rejected; (2) Whether reassignment is

advisable to preserve the appearance of justice; and (3) Whether

reassignment would entail waste and duplication out of proportion

to any gain in preserving the appearance of fairness.” Id; accord,

United National Insurance Co. v. R&D Latex, 141 F.3d 916, 920 (9th Cir.

1998).

“Allowing this [district court] to decide the issue again would create an

unfair ‘heads we win; tails let’s play again system’ of disability

[discrimination by the California court system]’…” Benecke v. Barnhart,

No. 03-15155, 9th Circuit, filed August 9, 2004, quoting Moisa v. Barnhart,

367 F.3d 882, 886-87 (9th Cir. 2004).

IX. Conclusion

For the following reasons, appellant respectfully requests that the district

court’s Order should be reversed in its entirety, that leave to amend be granted, and

that the case be remanded to a district court in a different jurisdiction. Appellant

also requests that this Court grant all available immediate relief pursuant to its

supervisory authority, as the delay and burden caused by this discrimination has

denied her right of access to the courts to exercise her right to petition for relief in

state court from prior restraint on her speech in her physician-patient relationships

and wrongful denial of healthcare, which shocks the conscience.

In the alternative appellant requests that this Court exercise its authority to

retain jurisdiction subsequent to remanding the case to the district court to specify

the material facts in issue upon which it based its decision to dismiss the case with

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Case No. 04-55769

prejudice. If the Court retained jurisdiction, it could then make determinations

without a new appeal being filed following remand, perhaps after additional

briefing.

X. Request for Oral Argument

Pursuant to FRAP, appellant respectfully requests that oral argument be

permitted. Oral argument will aid the Court in comprehending the complex set of

facts and evaluating the determination of what is a constitutionally protected

fundamental right under ADA, Title II which Tennessee v. Lane did not address.

This case presents a national issue of extraordinary importance.

Appellant’s health and safety are at risk due to appellees’ disability

discrimination. On this basis, she respectfully requests expedited oral argument.

Respectfully submitted,

Date: September 15, 2004

CERTIFICATE OF COMPLIANCE

Appellant certifies that this brief complies with a page or size-volume

limitation established by separate court order dated August 30, 2004 and is

proportionately spaced Times New Roman typeface in fourteen point and contains

15,394 words, excluding this Certificate of Compliance, the cover page, the Table

of Contents, the Table of Authorities, the Statement of Related Cases, and the

Certificate of Service, based on a word count by Microsoft Word 2003 word

processor.

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Case No. 04-55769

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, appellant states that there are currently no

pending related cases.

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Case No. 04-55769

CERTIFICATE OF SERVICE

In accordance with Rule 5(b) of the Federal Rules of Civil Procedure, the

undersigned hereby certifies that on the 15th day of September, 2004, a true and

correct copy of the foregoing, Appellant’s Opening Brief (2 copies),

Supplemental Request for Judicial Notice/Declaration/Exhibits, Letter to

Clerk and Proof of Service were sent as follows:

Via Federal Express, September 15th, 2004 (Airbill No. 807953969138)

delivery at the law offices of Best Best & Krieger LLP, 402 West Broadway, 13th

Floor, San Diego, California 92101-3542. Telephone: (619) 525-1300.

Arlene Prater

Alison D. Alpert

Attorneys for Appellees

I declare under penalty of perjury under the laws of the United States and

the laws of the State of California that I am not a party to this action and that the

foregoing is true and correct.

Executed on September 15th, 2004, at Encinitas, California.

Robert D. Finney

_______________________