alejandro um to superior court dismissal

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISMISS

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Alejandro Sanchez 615 Townsite Drive Vista, CA 92084 760-681-4109 Plaintiff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Alejandro Sanchez Plaintiff.

v.

Superior Court of The State of California

County of San Diego North County Division Civil Filling Clerks CARLOS; TONY; and MARIE individually as well as in her Official capacity; Clerk Lynn Arthur individually as well as in her Official capacity; Clerk Reporter Jennifer Stark; Sergeant Thomas Cleary individually as well as in his Official capacity; Deputy Doug Sanders individually as well as in his Official capacity; Supervisor Nancy Wikoff individually as well as in her Official capacity. NCHS Supervisor Tiffani Mauro; Irma Cota President and CEO, Phil Lenowsky Chief Financial Officer, Kevin Ellis Chief Medical Officer of the North County Health Services a Private Non Profit Corporation, Board of Directors of North County Health Services George E. Lopez Chair, Melissa Brown Board Vice-Chair, Diane Seaberg Secretary, Rick Martinez Treasurer, Adriana Andres-Paulson Immediate Past Chair, Andres Martin Board of Director, Clyde H. Beck

Jr. Board of Director, Emilio Lopez-Ramirez Board of Director, Shohre Zaheri Board of Director, Walt Steffen Board of Director. North County Health Services a Corporation and does 1-100

Defendants,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 10cv0218 BEN WVG

Judge: Hon. Roger T. Benitez

PLAINTIFF'S ANSWER TO DEFENDANTS

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF SAN DIEGO

NORTH COUNTY DIVISION'S MOTION TO

DISMISS HIS COMPLAINT

Date: April 19, 2010 Time: 10:30 a.m. Courtroom: 3 (4th Floor) Complaint filed: January 28, 2010

REQUEST FOR ORAL ARGUMENTS JURY DEMAND TRIAL


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I.

RESPONSE TO INTRODUCTION

Defendant Superior Court of the State of California, County of San Diego, North County

Division is requesting to have Plaintiff's complaint dismiss with prejudice and advances three

defenses:

1. This action is barred by Eleventh Amendment Immunity.

2. The Court lacks subject matter jurisdiction over the action based on the Rooker-Feldman

Doctrine.

3. This Court should exercise its discretion to abstain from intervening based on the

principles of Younger Abstention.

4. Plaintiff fails to allege facts sufficient to state a claim against the Superior Court.

Defendant Superior Court of the State of California, County of San Diego, North County

Division, collectively as, "Superior Court Defendants" allege Plaintiff is challenging the state

court judge's handling of that matter (including the order sealing documents which were

apparently inadvertently filed...page 1 ln. 1-10).

Plaintiff is not challenging the state court judge's handling of the matter at all. Superior Court

Defendants further believe there are very few specific allegations against the Superior Court.

Therefore Plaintiff will move this court to add the list of Superior Court Defendants to his

complaint. Further a list of exhibits that will show the court the pattern of civil rights violation

against Plaintiff Sanchez by the Superior Court Defendants. The exhibits will detail the ongoing

denial of access to the courts, violations of the American with Disabilities Act violations against

Plaintiff Sanchez and other similarly situated disabled persons. Additionally the racial violations

against Plaintiff and many more Hispanics by the Superior Court Defendants. Plaintiff will

summarize the previous case of Sanchez v. Bergensons Property and lodge a list of exhibits for

the purpose of summarizing the events that lead Plaintiff Sanchez to file this action on federal

court. The exhibits will demonstrate a the track record or the civil and statutory violations and

willful misconduct by the clerks of the Superior Court Defendants.

I I.


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EVENTS LEADING TO THE CLAIM AGAINST SUPERIOR COURT DEFENDANTS

The harassment of Plaintiff Alejandro Sanchez by Superior Court Defendants begin when

Bergensons Property owner Berge Minasian made an unlawful detainer against Plaintiff Sanchez

(May 8, 2007). The harassment by the Superior Court Defendants has been ongoing since on or

about May 8, 2007. All Superior Court Defendants are currently employed at the Superior Court

Northern Division acquiesced and were culpable in the wrongful acts and violations of Plaintiff's

constitutional rights which, were committed against Plaintiff Sanchez. The first defendants are the

clerks of the Civil Filling Clerk CARLOS, TONY and MARIE. These said defendants prevented

Plaintiff Sanchez from filing moving and nonmoving papers at the courthouse. As a result of the

filling clerks CARLOS, TONY and MARIE denial of "access to the courts," Bergensons Property

obtained an illegal eviction against Plaintiff.1 Superior Court Commissioner Ernest Gross was the

presiding Commissioner in these proceedings.2 Plaintiff Sanchez was illegally evicted within two

weeks out of his home not 60-days or 90-days eviction process as required by state and federal

law. Plaintiff was not allowed to adjudicate his rights, he was not allowed to enter the courthouse

and when he did enter the clerks would not allow him to file documents. As an end affect

1 The initial incident stemmed from Property owner Berge retaliation for giving out his phone

number to the former tenants who wanted to recover their rental deposits and for filing uninhabitable complaints against the building with the City of Vista and doctors. Plaintiff, ‘Sanchez paid his monthly rent as customary on or about 5/2/2007 Sanchez filed a formal Complaint with the City of Vista for uninhabitable conditions in the 8-unit complex; Deputy Building Official Eric A. Dennis took the complaint. (See Exhibit No.1 ) Property owner Berge filed with the Superior Court as dated in the fax of May 7, 2007 at 11:52 a.m. a “three day notice to pay rent or quit.” (See Exhibit No. 3 ) This happened immediately after the 60 – day notice was handed to Sanchez as well as after Sanchez had already paid his rent for the month of May (See Exhibit No. 4). Declaration of Berge Minasian attorney Robert H. Winter Jr. states that, “(2) Defendant Berge filed a Complaint for unlawful retainer against Sanchez on May 8, 2007 and June 1, 2007 Default Judgment was entered in favor of Defendant Berge (See Exhibit No. 5) 2 Commissioner under oath a declaration stating, "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the state of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution to the State of California; that I take this obligation freely, without any mental reservations or purpose of evasion; that I will well and faithfully discharge the duties of Judge of the Superior Court, the office, upon which I am about to enter. I certify that I am aware of and will comply with applicable provisions of cannon 6 of the Code of Judicial Ethics of California Rules of the Court. (See Exhibit No. 6)


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Property owner Berge Minasian immediately called the Vista Sheriffs to remove the Plaintiff and

his entire family from the apartment (See Exhibit No. 2).

Plaintiff Sanchez had just arrived from the hospital with his ill daughter that morning when the

Sheriffs’ evicted the entire family. As a result of Superior Court Clerks and Commissioner Ernest

Gross wrongful, malicious and vindictive conduct and actions Plaintiff Sanchez and his family

including his five minor children were locked out of their apartment within seven days without

due process of laws. Without any of their belongings, food, clothes, bank accounts information,

birth certificates, Social Security Cards, pictures, school records, and many of their confidential

documents (See Exhibit No. 7 ). The Sanchez family was left homeless, living in a van without

their personal belongings for a few months. Plaintiff Sanchez, his wife and five minor children

have been traumatized by the wrongful illegal acts of Bergenson Property owner Berge and Mark

Minasian. Berge Minasian could not have succeeded in violating Plaintiff Sanchez constitutional

right, due process and access to the courts in this illegal eviction. Without the aid of the Superior

Court Clerks and Commissioner Ernest Gross. These Superior Court Defendants set in motion

Berge Minasian's illegal acts by their willful denial of access to the courts and by granting Berge

Minasian order to have the Vista Sheriff's evict Plaintiff Sanchez a disabled individual within the

meaning of the American with Disabilities Act and his disabled children without a due process of

law (seven days). What is most egregious is that Plaintiff Sanchez had paid the rent for the month

(See Exhibit No. 8). Plaintiff Sanchez, his wife and children were not given a 60-day or 90-day

eviction process as required by state law. These illegal actions were intended to injure Plaintiff

Sanchez, prejudice and cause harm to his family. Superior Court Defendants (clerk Tony, Carlos

and Marie)3 engaged in such egregious conduct, of refusing to file moving documents in the

superior court in order to cause injury to Plaintiff Sanchez and his entire family. Superior Court

Defendants subjected Plaintiff Sanchez, a disabled person, and his disabled children to cruel and

unjust hardship in conscious disregard of his constitutional rights, personal property and the health

and safety of his children (See Exhibit No. 9).

3 Superior Court Supervisor Holy refused to give Plaintiff the last names of these clerks. Holy

said superior court attorneys told her not to release the names of the clerks.


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Furthermore, Berge Minasian illegally sold all of Plaintiff’s family belongings for the amount

of $200.00 including Plaintiff and all of the children’s social security cards, immigration records,

medical records, school records and all relevant personal documentation including a vehicle (See

Exhibit No. 10) Even when Plaintiff Sanchez served all Defendants including their legal counsel

with a Return of Personal Property Under California Civil Code § 1965 on July 23, 2007 (See

Exhibit No. 11) by the San Diego County Sheriffs non-levy. On July 28, 2007 Plaintiff and

others observed his property being taken by Bergensons Properties employees who stated to the

sheriffs that they had purchased the belongings but had no receipt.

Plaintiff Sanchez filed a claim against Bergensons Property including Berge Minasian to

recover his property and losses (See Exhibit No.12). Plaintiff provided to the Superior Court

Clerks and Judge Robert P. Dahlquist copies of his financial losses and bank statements (See

Exhibit No. 13). Plaintiff Sanchez had just settled his Workers disability claim and had obtained

a large settlement. Berge Minasian knew Plaintiff Sanchez had made large purchases including

computers, televisions, furniture etc. beds, couches, most of these items were locked in the garage

because Plaintiff Sanchez was planning to move to Mexico with his family.

Plaintiff Sanchez also had thousands of dollars in cash in his apartment. Property owner

Berge Minasian and his son Mark Minasian were aware of Plaintiff Sanchez Workers disability

settlement and illegally ceased Plaintiff Sanchez entire property with the aid of the named

Superior Court Clerks , Commissioner Ernest Gross and Judge Robert P. Dahlquist Clerks.

Plaintiff Sanchez lost his entire lively possessions including his Workers disability settlement

within a few days (less than ten days).

Defendant Clerk Lynn Arthur, clerk for Presiding judge Robert P. Dahlquist conduct was

egregious, While Plaintiff Sanchez was standing in the court during oral arguments. Defendant

Clerk Lynn Arthur was making mocking faces an mimicking Plaintiff Sanchez and his wife.

Judge Robert P. Dahlquist clerks hid the documents from judge Dahlquit. At court Presiding

judge Robert P Dahlquist asked Clerk Lynn for the documents but she stood silent. Defendant

Clerk Lynn Arthur went outside and talked to Sergeant Thomas Cleary, deputy Doug Sanders,

and attorney Eydith J. Kaufman chatting and discussed the declarations against Plaintiff Sanchez


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Judge Dahlquist Clerk Reporter Jennifer Stark was also outside with the above named

individuals. Attorney Eydith J. Kaufman went further and visited Plaintiff Sanchez Doctor

Lauren Kearney M.D. to pressure Plaintiff Sanchez Doctor Kearney to hand over Plaintiff

confidential medical records. Plaintiff requested transcripts or the hearings and paid for them.

When Plaintiff Sanchez would go and ask Defendant Clerk Reporter Jennifer Stark for the

transcripts she was rude and began to instruct the bailiffs to kick Plaintiff Sanchez out of the

court. Defendant Clerk Reporter Jennifer Stark never provided the transcripts, Plaintiff Sanchez

paid for them and never received them. Clerk Reporter Jennifer Stark resorted to have him kicked

out of the court house by the bailiffs when she saw Plaintiff coming to ask for the transcripts.

Defendant Sergeant Thomas Cleary filed a declaration under penalty of perjury against

Plaintiff Sanchez . Defendant Sergeant Thomas Cleary declaration amounted to slander and

defamation of character and fabricated facts of evidence against Plaintiff Sanchez. Unknown to

Sergeant Defendant Thomas Cleary was a video tape and pictures made of the event in question,

along with a witness declaration which contradicted Sergeant Thomas Cleary declaration filed

under penalty of perjury. Defendant Deputy Doug Sanders, filed a declaration under penalty of

perjury against Plaintiff Sanchez. Defendant Deputy Doug Sanders declaration also amounted to

slander and defamation of character and fabricated facts of evidence against Plaintiff Sanchez.

Also unknown to Defendant Deputy Doug Sanders was a video tape made of the event in

question, which contradicted Defendant Deputy Doug Sanders declaration filed under penalty of

perjury against Plaintiff Sanchez.

On the July 5, 2007 Relief from Default hearing Commissioner Ernest Gross sent Officer

Mares and St. Mark Barnel to harass Plaintiff Sanchez his family and friends and witnesses

outside of the courthouse. They were asked to leave the building of the Superior Court or they

would be arrested and tasered the officers waited outside until Plaintiff and all witnesses left the

parking lot.

On December 19, 2007 when Plaintiff Sanchez was walking into the Superior Court

Supervisor of the Superior Court Sheriff Civil Office Nancy Wikoff yelled at the sheriff, "do not

let them in." The corporals did not let Plaintiff Sanchez into the Superior Court. Sheriff Deputy


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F. Waceteted Badge # 4349 would not allow Plaintiff into the Superior Court to conduct business

on December 21st , 2007. Sheriff Deputy F. Waceteted said he was instructed not to allow

Plaintiff into the Superior Court by Supervisor Nancy Wikoff.

On February 16, 2010 Plaintiff Sanchez was kicked out of the Superior Court along with

Alberto and Maria Cadena by Supervisor of the Superior Court Sheriff Civil Office Defendant

Nancy Wikoff. Plaintiff was accompanying Alberto and Maria Cadena to the office get

information about an eviction notice after the Superior Court had ruled on their favor.

III.

PLAINTIFF'S ACTIONS ARE NOT BARRED BY ELEVENTH

AMENDMENT IMMUNITY

Plaintiff will seek to move this court to add Superior Court Defendants, Office Clerks CARLOS

, TONY, MARIE; Clerk LYNN ARTHUR, clerk for Presiding JUDGE ROBERT P.

DAHLQUIST; Presiding JUDGE ROBERT P. DAHLQUIST Clerk Reporter JENNIFER

STARK; Superior Court of the State of California, County of San Diego, North County Division

SERGEANT THOMAS CLEARY; Defendant Superior Court of the State of California, County

of San Diego, North County Division DEPUTY DOUG SANDERS; Superior Court of the State

of California, County of San Diego, North County Division COMMISSIONER ERNEST

GROSS; Superior Court of the State of California, County of San Diego, North County

Division, Superior Court Sheriff Civil Office NANCY WIKOFF.

Plaintiff Sanchez is disabled as defined under the American with Disability Act. On 2002

Plaintiff had a left L5-S1 laminotomy and disc excision. Plaintiff had difficulties which resulted

in further surgical intervention an further surgical laminectomy and foraminotomies, transformal

interbody fusions L4 to S1*** allograft spacers L4-5 and L5-S1, posterolateral fusion, leftniliac

bone draft and momarch pedicle segmental fixation L4 to S1. Plaintiff is 100% disabled as can

be supported by Dr. Frederick W. Close M.D. , Dr. Bruce VanDam, Dr. Michael Moon and Elise

A. Reed. (See Exhibit No. 14)


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Plaintiff will separate the unlawful actions of the Superior Court of the State of California,

County of San Diego, North County Division and its Defendants apart from the actions of North

County Health Services and its Defendants.

In Beltran v. Santa Clara County et al., No. 05-16976 the Ninth Judicial Circuit granted, "state

actors absolute immunity only for those functions that were critical to the judicial process itself,”

such as “ ‘initiating a prosecution.’ ” Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en

banc) (quoting Imbler, 424 U.S. at 431)." The court clarified that social workers (in this case court

workers) have absolute immunity when they make “discretionary, quasi-prosecutorial decisions

but they are not entitled absolute immunity form claims that they fabricated evidence during an

investigation or made false statements...signed under penalty of perjury, because such actions

aren't similar to discretionary decisions about whether to prosecute Buckley v. Fitzsimmons, 509

U.S. 259, 275 (1993). or makes false statements in a sworn affidavit in support of an application

for an arrest warrant, see Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997).

Furthermore, as prosecutors and others investigating criminal matters have no absolute

immunity for their investigatory conduct, a fortiori, social workers (Superior Court workers in this

case) conducting investigations have no such immunity. See id. at 126. Further, the touchstone of

the absolute immunity analysis is the “nature of the function performed, not the identity of the

actor who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997). Courts grant absolute

immunity from liability for suits arising out of the performance of functions that are necessary to

the judicial process. Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc) (citing Imbler

v. Pachtman, 424 U.S. 409, 430 (1976)). At early common law, this included most actions of

judges, grand jurors, and prosecutors. Imbler, 424 U.S. at 422-24. Witnesses testifying in court

received absolute immunity, but “complaining witnesses,” those swearing to the facts in the initial

complaint, did not. Kalina, 522 U.S. at 130-31; Burns v. Reed, 500 U.S. 478, 489-90 (1991).

As was the case with the fabrication of evidence by the Declarations of employees from the

Superior Court against Plaintiff Sanchez. Absolute immunity has been extended to the actions of

other state actors when they engage in functions that are quasi-judicial. Antoine v. Bryers &

Anderson, Inc., 508 U.S. 429, 435-36 (1993); see also Miller, 335 F.3d at 897. However, the Court


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has not recognized absolute immunity for acts that are “further removed from the judicial phase of

proceedings than the act of a prosecutor in seeking an indictment.” Kalina, 522 U.S. at 128

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986).

IV.

SUPERIOR COURT DEFENDANTS FILED DEFECTIVE DOCUMENTS

SUBMITTED BY NORTH COUNTY HEALTH SERVICES

Along with the documented facts, Superior Court Declarations and omissions mentioned

above. On January 15, 2010 Defendant North County Health Services Employee Tiffany Mauro4

filed an application for restraining order [WV-1 and WV-120]. The application was filed by

Tiffani Mauro Vice President of Operations for North County Health Services [page 4 of 4 of

WV-100 9Rv. January 1, 2005]. (See Exhibit No. 15)

Tiffani Mauro Vice President of Operations for North County Health Services filed the

applications on behalf of North County Health Services representing all employees of North

County Health Services (See Exhibit No. 16). North County Health Services is a 501C3 for Profit

Corporation. Tiffani Mauro is not a licensed attorney in the state of California to practice law and

represent a “Corporation.” Tiffani Mauro is not a licensed attorney to practice law in the State of

California to represent, “employees” of a Corporation. The Clerk of the Court for the Superior

Court of California, County of San Diego North County Division accepted both [WV-1 and WV-

120] applications (See Exhibit No. 17). The documents were entered on January 15, 2010 at 3:12

P.M. On the same day the temporary order for a restraining order was signed and dated January

15, 2010 by Judge Adrienne A. Orefield (See Exhibit No. 18).

Judge Orefield ordered North County Health Services to serve the documents on Plaintiff

Sanchez on January 15, 2010 (See Exhibit No. 19) . Plaintiff Sanchez was not served with these

documents until after the January 27, 2010, 8:30 a.m ex parte hearing in which North County

Health Services tried to cover up the defective application and made the appearance of counsel,

attorney Cynthia Sandoval (See Exhibit No. 20). Further Judge Brown ordered the documents to

be sealed after the documents were made public on the day they were filed. Judge Brown ordered

4 Plaintiff Sanchez will move to add North County Health Services employee Tiffany Mauro to the list of Defendants.


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the sheriff to return to the Court the documents filed on January 15, 2010 and not serve them on

Plaintiff Sanchez (See Exhibit No. 21).

The documents were never served on Plaintiff Sanchez prior to the ex parte hearing. Plaintiff

Sanchez was never serviced with the Notice of Complaint or the Memorandum of the Complaint

or any supporting documents. On January 26, 2010 Plaintiff Sanchez was notified via overnight

mail [letter] of Defendant North County Health Services ex parte scheduled for January 27, 2010

at 8:30 a.m. in the morning at Department 7 Judge David Brown presiding (See Exhibit No. 22).

Plaintiff Sanchez was never served with a timely Notice of the ex parte Motion or Memorandum

of Ex Parte Motion a Proof of Service of either the Notice or the Memorandum of the Ex Parte

Communication.5 Further Plaintiff Sanchez was not allowed to participate in the North County

Health Services Ex Parte hearing of January 27, 2010 at 8:30 a.m. Plaintiff Sanchez was never

served with any moving documents, Notices, Memorandum, proof of service or any supporting

documents or notifications of Defendants North County Health Services Ex Parte hearing of

January 27, 2010 at 8:30 a.m. 6

The Complaint was never served on Plaintiff Sanchez. Plaintiff Sanchez was never served

with the Notice of Complaint or the Memorandum of the Complaint or any supporting documents

until after the January 27, 2010 at 8:30 a.m. Ex Parte hearing. At the Ex Parte Hearing of January

5 Cal Rule (s) 3.1206 No hearing may be held unless applicant serves parties appearing at Ex Parte

hearing with Ex Parte Application and any written opposition.

6 2010 California Rules of Court Rule 3.1201. Required documents A request for ex parte relief must be in writing and must include all of the following: (1)An application containing the case caption and stating the relief requested; (2)A declaration in support of the application making the factual showing required under rule 3.1202(c); (3) A declaration based on personal knowledge of the notice given under rule 3.1204; (4) A memorandum; and (5) A proposed order. Rule 3.1201 adopted effective January 1, 2007. Rule 3.1202. Contents of application Rule 3.1203. Time of notice to other parties Rule 3.1204. Contents of notice and declaration regarding notice (a) Contents of notice (b) Declaration regarding notice


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27 Judge Brown ordered that the documents not be served on Plaintiff Sanchez. Plaintiff Sanchez

went into the Superior Court on several occasions to view the file against him but he was denied to

view the file by the Superior Court Clerks. The actions of all of the above Superior Court

Defendants (clerks) violated Plaintiff’s right to have access to the courts, to view his court record,

to be served with the documents, notices, memorandums, declarations and all relevant

documentation submitted to the Superior Court against Plaintiff by Defendant North County

Health Services employee and Defendant Tiffany Mauro.

V.

NO HEARING WAS CONDUCTED WITHIN 15 DAYS [FORM CH-150]

The Ex Parte hearing of January 27, 2010 at 8:30 a.m. was conducted for the sole purpose of

sealing the records filed by North County Health Services Tiffani Mauro. Judge Brown granted

these records to be sealed denying Plaintiff the opportunity to defend himself in court. After the

Ex Parte hearing Plaintiff was served with the application for restraining order [WV-1 and WV-

120]. On the WV-120 application of Tiffani Mauro section page 3 of 4 on section 11 it says:

SERVICE ON DEFENDANT (See Exhibit No. 23).

The document listed bellow must be personally served on defendant.

a. Order to Show Cause and Temporary Restraining order (CLETS) (Workplace Violence)

(form WV-120).

b. Petition and Employer for injunction Prohibiting Violence or Threats of Violence Against

Employee (Workplace Violence WV-100).

c. Blank Response to Petition of Employer for injunction Prohibiting Violence or Threat of

Violence Against Employee (Workplace Violence WV-110).

d. Blank Proof of Service by Mail or Completed Response (Workplace Violence WV-131).

e. Blank Proof of Sale of Turning In Firearms (WV-145).

f. Other (specify).

12. ORDER SHORTNING TIME

Application of an order shortening time is granted and the documents listed in Item 11

shall be personally served on the defendant by the date specified in Item 4a.


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[4a. IT IS FURTHER ORDERED that:

a. Plaintiff shall serve this ORDER to show Cause, the attached Petition for Employer

for Injunction Prohibiting violence or threat of violence against Employee

(Workplace Violence) (Form WV-100), and any other supporting papers by (specify

manner of service):

b. Any Opposition papers shall be filed and served on Plaintiff (specify manner of service):

c. Any reply papers shall be filed and served (specify manner of services):

d. Proof of Service of Plaintiff’s papers shall be delivered to the court hearing the Order to

show cause no later than date: 1/15/ 10 signed by JUDGE ADRIENNE A. OFRIELD.

All of the Superior Court above Defendants violated all of the procedure mentioned above

when Plaintiff Sanchez was not served with the papers ordered by Judge Adrienne Orefield.

Further when Judge David Brown ordered the documents above to be sealed January 27, 2010 the

violation further became egregious against Plaintiff Sanchez. Plaintiff was not allowed to view

the documents filed against him by the clerks of the Superior Court of The State of California

County of San Diego North County Division.

These said actions violated Plaintiff right to have access to the Superior Court of California

North County Division. Further all defendants knew Plaintiff was a disabled man and chose

among other things to discriminated against Plaintiff violating his rights under the Americans

With Disability Act “ADA.” Along with Plaintiff right to have Due Process and Equal Protection

of Laws under the Fourteenth Amendment to the United States Constitution.

VI.

SUPERIOR COURT DEFENDANTS SUED IN THEIR INDIVIDUAL CAPACITY

DO NOT HAVE ELEVENTH AMENDMENT IMMUNITY

Under the Eleventh Amendment, a state is not subject to suit by its own citizens in

federal court. United States Constitution Amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-63

(1974). Congress can, however abrogate a state’s immunity to suit, or the state can waive it.

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 240-41 (1985). Congress properly abrogated

the immunity of the state from suit by applying Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996).


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The Seminole test contains two parts.” (a) Whether Congress has ‘unequivocally expressed its

intent to abrogate the immunity,’ and (b) whether Congress has acted ‘pursuant to a valid exercise

of power’ in abrogating the immunity. Id. At 1123 (quoting Green v. Mansour, 474 U.S. 64, 68

(1985). Based on the actions of the above named Superior Court Defendants it is unlikely that they

had received any training, followed any practices, policies or procedures (see sample of cases).

In Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937, 125 Ed. Law Rep. 684 (1998), the

Court determined that the doctrine of sovereign immunity did not apply to the local board of

education in their capacity of supervising students. Id. at 112. The Court reasoned that "[t]he duty

to supervise students is performed for the benefit of the municipality," id. (citing Burns v. Bd. of

Educ., 228 Conn. 640, 638 A.2d 1, (1994)), and hence did not "operate to control or interfere with

activities of the state." Id. (internal citations omitted). Historically, municipal employees have

been held personally liable for their own torts. However, the doctrine of governmental immunity

has been offered to these employees while "in the performance of a governmental duty, but [they]

may be liable if [they] misperform. A ministerial act, as opposed to a discretionary act ... The

word `ministerial' refers to a duty which is to be performed in a prescribed manner without the

exercise of judgment or discretion." Burns, 228 Conn. at 645 (internal citations omitted).

In cases "where the circumstances make it apparent to the public officer that his or her failure to

act would be likely to subject an identifiable person to imminent harm" the doctrine of

governmental immunity does not apply. Id., 228 Conn. at 645.

VII.

PLAINTIFF'S CLAIMS ARE NOT BARRED BY THE ROOKER-FELDMAN DOCTRINE

Superior Court Defendants are challenging, "jurisdiction" and believe this court lacks

jurisdiction to review state court judgments or rulings under the Rooker-Fedman Doctrine. The

Rooker-Fedman Doctrine, was reviewed by the United States Supreme Court twice before Exxon

Mobile Corp. v. Saudi Basic Industries (03-1696) 544 U.S. 280 (2005) 364 F.3d 102. First in

Rooker v. Fidelity Trust Co., 263 U.S. 413, and in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 . In Rooker, plaintiffs previously defeated in state court filed suit in a

Federal District Court alleging that the adverse state-court judgment was unconstitutional and


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asking that it be declared “null and void.” 263 U.S., at 414—415. In Rooker, the Supreme Court

recognized, federal courts as empowered to exercise only original, not appellate, jurisdictions. Id.,

at 416. The doctrine has been held to apply to any state court decisions that are judicial in nature.

In Feldman, two plaintiffs brought federal-court actions after the District of Columbia’s highest

court denied their petitions to waive a court Rule requiring D. C. bar applicants to have graduated

from an accredited law school. Recalling Rooker, the United States Supreme Court observed that

the District Court lacked authority to review a final judicial determination of the D. C. high court

because such review “can be obtained only in this Court.” 460 U.S., at 476. this Court held that 28

U.S. C § 12577 did not bar the District Court from addressing the validity of the Rule itself, so

long as the plaintiffs did not seek review of the Rule’s application in a particular case, 460 U.S., at

486.

Since Feldman, The United States Supreme Court has never applied Rooker-Feldman to

dismiss an action for want of jurisdiction. However, the lower federal courts have variously

interpreted the Rooker-Feldman doctrine to extend far beyond the contours of the Rooker and

Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with

jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law

under 28 U.S. C. § 1738.8

The Rooker-Feldman doctrine, is held as, is confined to cases of the kind from which the

doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments. Rooker-Feldman does not otherwise

override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal

7 28 U.S. C § 1257 (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in

question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution,

treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

(b) For the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.

8 § 1738 C. Certain acts, records, and proceedings and the effect thereof No State, territory, or possession of the United States, or

Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession,

or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State,

territory, possession, or tribe, or a right or claim arising from such relationship.


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courts to stay or dismiss proceedings in deference to state-court actions. Exxon Mobile Corp. v.

Saudi Basic Industries (03-1696) 544 U.S. 280 (2005) id. 284.

Unlike Rooker or Feldman Plaintiff Sanchez did not and is not inviting the USDC to “null and

void,” or waive court Rules or review the application of the court rules in Sanchez v. Bergensons

Property. Defendants further allege Plaintiff statutes of limitations expired for Sanchez v.

Bersonsons Property dfts. motion to dismiss pg. 14 footnote 7.9 The Sanchez v. Bergensons

Property claims are different than the claims against the Superior Court Defendants. The named

Superior Court Defendants were never a party to Sanchez v. Bergensons Property and all alleged

violations are different between Sanchez v. Bergensons Property and Superior Court Defendants.

Simply because Plaintiff filed a state court action against Bergensons Property in State Court,

does not mean that the federal court is forever "off limits." Or that Plaintiff cannot sue court

clerks for their wrongful and discriminatory actions against Plaintiff Sanchez that are currently

accruing. Even years after Sanchez v. Bergensons Property was disposed by the Superior Court.

Since Feldman, the United States Supreme Court has never applied Rooker-Feldman to dismiss an

action for want of jurisdiction. The few decisions that have mentioned Rooker and Feldman have

done so only in passing or to explain why those cases did not dictate dismissal. See Verizon Md.

Inc. v. Public Serv. Comm’n of Md.,535 U.S. 635, 644, n. 3 (2002) (Rooker-Feldman does not

apply to a suit seeking review of state agency action) Exxon Mobile Corp. v. Saudi Basic

Industries (03-1696) 544 U.S. 280 (2005) 364 F.3d 102.

In Exxon Mobile Corp. v. Saudi Basic Industries (03-1696) 544 U.S. 280 (2005) 364 F.3d

102. The United States Supreme Court ruled that:

"When there is parallel state and federal litigation, Rooker-Feldman is not triggered simply by the

entry of judgment in state court. This Court has repeatedly held that “the pendency of an action in

the state court is no bar to proceedings concerning the same matter in the Federal court having

jurisdiction.” McClellan v. Carland, 217, U.S. 268 (1910); accord Doran v. Salem Inn, Inc., 422

U.S. 922, 928 (1975); Atlantic Coast Line R. Co., 398 U.S., at 295. Comity or abstention doctrines

9 Statute of limitations actually expires on or about June of 2010 and June 2011 under 28 USC

Sec. 1658.


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may, in various circumstances, permit or require the federal court to stay or dismiss the federal

action in favor of the state-court litigation. See, e.g., Colorado River Water Conservation Dist. v.

United States, 422 U.S. 800 (1976); Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil

Co., 319 U.S. 315 (1943); Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

But neither Rooker nor Feldman supports the notion that properly invoked concurrent

jurisdiction vanishes if a state court reaches judgment on the same or related question while the

case remains sub judice in a federal court. The Sanchez v. Bergensons Property is not a bar to

this court exercising jurisdiction over this case. The Sanchez v. Bergensons Property case was

closed in 2007 and the current claims and parties are completely separate and distinct.

If Defendants believed the claims in this action were the same as Sanchez v. Bergensons

Property they did not raised the res judicata defense. The Rooker Feldman doctrine is not a bar to

this court exercising jurisdiction over this case. The only matter pending before is the TRO filed

by NCHS and by state law this TRO was supposed to be heard within 15 days (See Court

Transcripts Exhibit No. 24). The Superior Court has refused jurisdiction over the TRO and is

waiting for the USDC to declare jurisdiction. The TRO pending is irrelevant to the distinct claims

against the Superior Court Defendants. Plaintiff had a right to file a removal to this court. The

TRO was never heard and no judgment was rendered to the contrary.

The NCHS attorney Cynthia Sandoval sent an ex parte letter to Plaintiff Sanchez dated January

25, 2010 in an informal notice of an ex parte hearing. The letter states that the NCHS intends to

appear ex parte on January 27, 2010 ......to request the following: (See Exhibit No. 25)

1. That the original four (4) pages of internal notes attached to NCHS's Petition for Injunction

and Application for Temporary Restraining Order ("Application"), as well as any copies

made, be returned to NCHS; or, in the alternative,

2. That the Court grant NCHS leave to withdraw its Application and the four (4) pages of

internal notes attached thereto, return these documents and any copies to NCHS, and

permit NCHS to re-file an amended Application without the attached four (4) pages of

internal notes; or, in the alternative,

3. That the Court permit NCHS to file attached four (4) pages of internal notes under seal.


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The NCHS defendants have not filed an amended Application and the Superior Court has not

ruled or held a hearing except of the ex parte hearings. In the ex parte hearing the court has

refused jurisdiction and under law the TRO was supposed to be heard within 15-days.

In Exxon Mobile Corp. v. Saudi Basic Industries (03-1696) 544 U.S. 280 (2005) 364 F.3d

102. The United States Supreme Court noted in its opinion:

"28 U.S. §1257 does not stop a district court from exercising subject-matter jurisdiction simply

because a party attempts to litigate in federal court a matter previously litigated in state court. If a

federal plaintiff “present[s] some independent claim, albeit one that denies a legal conclusion that

a state court has reached in a case to which he was a party … , GASH Assocs. v. Village of

Rosemont, 995 F.2d 726, 728 (CA7 1993); accord Noel v. Hall, 341 F.3d 1148, 1163—1164 (CA9

2003)." In the TRO the matter has not been litigated and there has been no conclusion or

judgment. Both the TRO and the claims against the Superior Court Defendants are matters of first

impression to both courts. As in Exxon Mobile Plaintiff Sanchez case surely is not the “paradigm

situation in which Rooker-Feldman precludes a federal district court from proceeding.” 364 F.3d,

at 104 (quoting E. B. v. Verniero, 119 F.3d 1077, 1090—1091 (CA3 1997)).

Most of the cases as to, "inextricably interwined," and lack of jurisdiction cited by Superior

Court Defendants are pre dated before the United States Supreme Court ruling of Exxon Mobile

Corp. v. Saudi Basic Industries. The Rooker-Feldman doctrine has been overused by most courts

in the United States.

The Exxon Supreme court decision noted that Rooker-Feldman does not otherwise override or

supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to

stay or dismiss proceedings in deference to state-court actions. This decision essentially had the

effect of cabining the Rooker-Feldman doctrine and limiting its application, defining it as separate

and distinct from both preclusion and abstention doctrine. Furthermore, in the opinion Justice

Ginsburg went on to explain that parallel litigation in both state and federal courts does not

automatically trigger Rooker-Feldman, and that federal courts must give state court judgments

preclusive effect under the Full Faith and Credit Act, 28 U.S. C. § 1738.

VIII.


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YOUNGER ABSTENTION IS INAPPLICABLE TO THIS CLAIM

Superior Court Defendants defense is that this court should abstain from intervening in this

ongoing state court matter. Yet fail to mention exactly which court state matter the Sanchez v.

Bergensons Property or the TRO. In any case Plaintiff Sanchez explained that a pending state

court action does not bar federal courts from exercising jurisdiction.

The Supreme Court has repeatedly emphasized that abstention should be invoked only

rarely because federal courts have a virtually unflagging obligation to exercise the jurisdiction

conferred on them by Congress. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)

(collecting cases); Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992); Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).

Further in Exxon Mobile Corp. v. Saudi Basic Industries (03-1696) 544 U.S. 280 (2005) 364

F.3d 102. The United States Supreme Court noted, "28 U.S. §1257 does not stop a district court

from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal

court a matter previously litigated in state court. If a federal plaintiff “present[s] some independent

claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he

was a party … , GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 728 (CA7 1993); accord

Noel v. Hall, 341 F.3d 1148, 1163—1164 (CA9 2003)."

Superior Court Defendants position is that this court should abstain based upon the three-

pronged principles in Gartrell Construction. The first prong they claim is ongoing judicial

proceedings. Sanchez v. Bergensons Property is not an ongoing judicial proceeding. As

explained the matter in the body of this answer to Superior Court Defendants the case was

adjudicated and finalized on or abut June 2007. What is on going is Superior Court Defendants

constitutional violations of denial of access to the courts, violations of ADA and racial

discrimination. The claims of violations against Superior Court Defendants presented to this court

in this pending action are outside of Defendants absolute immunity and outside of their quasi-

judicial duties. There are no judicial proceedings on Sanchez v. Superior Court or any of the

Superior Court Defendants in State Court. In the TRO the Superior Court has not exercised

jurisdiction but is waiting for this court to take up the matter.


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In the second-prong Superior Court Defendants state that, "California has a strong interest in

providing and a mechanism to obtain preliminary and ultimately permanent injunction in

accordance with the procedures established by the Superior Court. Plaintiff disagree the Superior

Court Defendants only interest here is to deny judicial review of the dirty laundry in State Court.

Further Superior Court Defendants claim this filed federal case revolves around orders, discovery,

disputes and sealing of court records. These issues mentioned by Superior Court Defendants are

not at bar here they are minute to the overall claims of civil rights violations committed by the

Superior Court Defendants against Plaintiff Sanchez and other disabled persons seeking

information of access to the Court. Plaintiff Sanchez has mentioned the incidents as an example of

the dysfunction and egregious behavior by the Superior Court Clerks against him.

Because Younger is based on the relationship of trust between the federal and state judiciaries

and the need to avoid interfering with state tribunals. “Interference” is a key component of the

Younger analysis. Green v. City of Tucson, 255 F.3d 1086, 1097-99 (9th Cir. 2001). See, e.g.,

Joseph A. v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002). The district court “should not abstain

from exercising its jurisdiction based merely on the presence of parallel state and federal suits.” Id.

A plaintiff has Section 1983 standing to sue when: “(a) some person has deprived him of a

federally protected right, and (b) the person who has deprived him of that right acted under color

of state law.” Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991).

When due process does not obligate the state to establish an avenue of judicial redress (as it

holds true in this case based on the lack of response from state regulatory agencies to plaintiff

complaints of denial of access to the courts see declarations enclosed), once the state does so,

“these avenues must be kept free of unreasoned distinctions that can only impede open and equal

access to the courts.” Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). see also Wilkinson v. Austin,

125 S. Ct. 2384 (2005) (“A liberty interest may arise . . . from an expectation or interest created by

state laws or policies”). The Supreme Court has recognized that plaintiffs may suffer an injury in

fact when an agency fails to follow specific procedural requirements. Colo. Envtl. Coalition v.

Wenker, 353 F.3d 1221 (10th Cir. 2004) (Ebel, dissenting) (citing Lujan, infra at 573 n.7 (“There

is much truth to the assertion that ‘procedural rights’ are special: The person who has been


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accorded a procedural right to protect his concrete interests can assert that right without meeting

all the normal standards for redressability and immediacy”).

Superior Court Defendant advance their third-prong, that the "requirement of adequate

opportunity to raise a federal issue" has been satisfied because this ongoing matter will be

scheduled for a permanent injunction." Yet since January 27, 2010 there is no scheduled hearing

and no hearing took place within fifteen days has required by law. Three Superior court Judges

(Brown, Orefield, Pressman) have decline to hear the case and they have not declared jurisdiction

over the TRO matter (same as federal judges this case was sent to a third judge Rodger T.

Benitez). Further, NCHS defendants have not filed the Amended complaint they said they were

going to file in their ex parte hearing of January 27, 2010. Based on all of these facts and other

facts contained in the body of this response, to Superior Court Defendants motion to dismiss and

in addition to all of the exhibits enclosed. Superior Court Defendants have not satisfied the first-

prong, second-prong or the third-prong under the principles in Gartrell Construction.

IX.

PLAINTIFF SANCHEZ HAS STANDING TO RAISE AN ADA CLAIM IN THIS COURT

Plaintiff Sanchez is a disabled individual within the meaning of the Americans with Disability

Act. Plaintiff alleges Superior Court Defendants denied him access to the courthouse, he was

denied access to receive forms, to file moving and non moving papers, the clerk Carlos yelled at

him and they were and have been rude to him and other disabled individuals. These actions have

prejudiced Plaintiff as well as dozens of other disabled individuals. Plaintiff will submit

declarations of other disabled individuals who have been present and witness the events and were

subject to the same discrimination themselves.

This present claim of discrimination under ADA is separate and distinct form the claim in

Bergensons Property. In Bergensons Property Plaintiff claimed that he was discriminated because

he is a disabled individual his children are disabled as well and Bergenson's Property owner Berge

Minasian discriminated against him because he was evicted when Plaintiff had just paid his rent.

Right after Plaintiff paid the rent for the month Berge Minasian went to the Superior Court and he


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got an order to evict the Plaintiff within seven days. Berge Minasian knew the law required that

he give Plaintiff a 60-90-days notice (90-day-notice for disabled in the State of California.)

Plaintiff was never given a 60-90-day eviction notice as required by state law. Plaintiff and

his children were illegally evicted within seven days by the Vista Sheriffs. Plaintiff filed a claim

against Bergensons Property for Disability Discrimination Under Fair Employment and Housing

Act "FEHA", Violation of Implied Waranty of Habitability, Economic Damages, Breach of the

Covenant of Good Faith and Fair Dealing and Inteintional Infliction of Emotional Distress.

In this claim at bar Plaintiff has submitted exhibits in support of the fact he is filing an action

against Superior Court Defendants not for their, “discretionary, quasi-prosecutorial decisions."

Rather for the action outside of their discretionary, quasi-prosecutorial decisions. Once again in

the Ninth Circuit Beltran ruling the court that state actors have absolute immunity only for the

actions that were critical to the judicial process itself. Miller v. Gammie, 335 F.3d 889, 896 (9th

Cir. 2003) (en banc) (quoting Imbler, 424 U.S. at 431)."

The actions of the Superior Court Clerks were outside of their discretionary, quasi-prosecutorial

decisions. In Phillips v. Hust No. 04-36021 the court ruled that, Under the First and Fourteenth

Amendments to the Constitution, state prisoners have a right of access to the courts. Lewis v.

Casey, 518 U.S. 343, 346 (1996). “[A]ccess to the courts means the opportunity to prepare, serve

and file whatever pleadings or other documents are necessary or appropriate in order to commence

or prosecute court proceedings affecting one’s personal liberty.” Id. at 384 (quoting Hatfield v.

Bailleaux, 290 F.2d 632, 637 (9th Cir. 1960)). This right “requires prison authorities to assist

inmates in the preparation and filing of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith,

430 U.S. 817, 828 (1977). Jail library Clerk Hust prevented Phillips from using a comb binding

machine to bind his Supreme Court Certiorari. By the time Phillips was able to access the comb

binding machine and send his certiorari it was too late. The Supreme Court Returned the

Certiorari since it was filled late. Phillips sued Hust and won a judgment for denial of access to

the courts. The same situation exists in this case when the Superior Court Defendants denied


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Plaintiff Sanchez access to his records, denied him access to the courts whereby he was stopped

by the bailiffs before he entered the court and denied documents essential to move proceedings.

When Defendants Sergeant Cleary and Deputy Sanders even filed false declarations against

Plaintiff Sanchez they were acting outside of their discretionary, quasi-prosecutorial immunity and

powers . When Superior court Defendant Nancy Wikoff does not allow Plaintiff Sanchez to come

into the Superior Court. When Superior court Defendant Nancy Wikoff who is the Supervisor of

the Superior Court Sheriff Civil Office instructs the superior court bailiffs not to allow Plaintiff

Sanchez to come into the courthouse, she is acting outside of her discretionary, quasi-prosecutorial

immunity and powers. These actions prejudiced the Plaintiff and his family and caused them

irreparable harm. In this federal action Plaintiff asked for a removal into federal court to show a

pattern of Superior Court Defendants unlawful actions against him by the Superior Court

Defendants who do not follow state law, processes, practices or procedures in accordance with

state or federal law.

As in Phillips v. Hust No. 04-36021 (9th cir. 2007) the court required three-prongs:

"Where a prisoner asserts a backward-looking denial of access claim — one, as here, seeking a

remedy for a lost opportunity to present a legal claim — he must show: 1) the loss of a

“nonfrivolous” or “arguable” underlying claim; 2) the official acts frustrating the litigation; and 3)

a remedy that may be awarded as recompense but that is not otherwise available in a future suit.

See Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). The exhibits on submission with this

response and attached to this memorandum will support Plaintiffs viable claim of denial of access

to the court and actual injuries, damages and statement of the bills (See Exhibit No. 26 ) he

sustained due to Superior Court Defendants actions outside of their discretionary, quasi-

prosecutorial immunity and powers.

Plaintiff Sanchez has satisfied the first prong that he has the right to bring this claim to federal

court because it is not a review of judicial proceedings or judgments against him he is asking the

USDC to review rather the denial of access to the court and discrimination under the ADA by

Superior Court state actors conduct outside of their discretionary, quasi-prosecutorial immunity

and powers and as a result of said actions Plaintiff's entire family sustained injuries. Lewis v.


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Casey, 518 U.S. 343, 346 (1996) the first element, requiring the loss of a nonfrivolous underlying

claim, goes to the plaintiff’s standing to bring suit. To have standing to assert a claim of denial of

access to the courts, an inmate must show “actual injury.” Lewis, 518 U.S. at 351. In order to

establish actual injury, the inmate must demonstrate that official acts or omissions “hindered his

efforts to pursue a [nonfrivolous] legal claim.” Id. at 351, 353, 353 n.3. in order to establish actual

injury, a plaintiff “need not show, ex post, that he would have been successful on the merits had

his claim been considered.” Allen v. Sakai, 48 F.3d 1082, 1085 (9th Cir. 1994).

In a § 1983 case, Plaintiff Sanchez will show that the alleged violation of his rights was

proximately caused by Superior court Defendants, the state actor. See Crumpton v. Gates, 947

F.2d 1418, 1420 (9th Cir. 1991) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). The

touchstone of proximate cause in a § 1983 action is foreseeability. See Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 784-85 (9th Cir. 2000) (citing

Arnold v. IBM Corp., 637 F.2d 1350, 1355 (9th Cir. 1981)).

If the Constitution requires that prison officials make it possible for inmates to prepare, file,

and serve pleadings and other documents essential for pleading their causes. Lewis, 518 U.S. at

346. than surely the Constitution should also require that when a Plaintiff represents himself in

court the court clerks would allow him to have access to the courts, access to obtain forms, expect

that his moving papers be filed not tossed in the trash or belittled by the court clerks or be

prevented from walking into the courthouse, or that employees of the Superior Court file falsified

Declarations of events that did not occur under penalty of perjury against Plaintiff Sanchez. He

had the right to be treated with respect and not be mocked or laughed at while he is standing

before Judge Dahlquist.

The Court held that an inmate’s constitutional rights, including the right of access to the

courts, may be violated by the arbitrary and selective enforcement of otherwise valid policies.

For example, in Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 845 (9th Cir. 1985), the

state denied an inmate a work furlough on the grounds that the policy establishing his eligibility

was not part of a published regulation as required by state law. We held that, although the


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publication requirement was otherwise valid, “the state cannot arbitrarily deny privileges based on

the lack of regulations if it grants privileges under unfiled regulations to other prisoners.” Id.

such selective enforcement of regulations could constitute a violation of the inmate’s due process

rights if it resulted in a deprivation of a prisoner’s liberty interests. Id. Similarly, in Gluth v.

Kangas, 951 F.2d 1504, 1508 (9th Cir. 1991), we held that arbitrarily denying access to a prison

library despite space availability could constitute a violation of the right of access to the courts,

even if the regulations governing access were arguably facially valid. Leeds v. Watson, 630 F.2d

674, 676 (9th Cir. 1980). Reed v. Faulkner, 842 F.2d 960, 964 (7th Cir. 1988) (holding selective

enforcement of hair length rules against some groups asserting religious exemption but not others

could constitute violation of equal protection, despite the general validity of the rules).10

This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 12133,

and 29 U.S.C. § 794a.

X.

SUPERIOR COURT DEFENDANTS HAVE NO ELEVENTH

AMENDMENT IMMUNITY FOR VIOLATIONS UNDER THE ADA

Congress has unequivocally expressed its intent to abrogate the State’s immunity under both

the ADA and the Rehabilitation Act, § 42 U.S.C. § 122002 of the ADA explicitly states, “A State

shall not be immune under the eleventh amendment.” See also Duffy v. Riverland, 98 F.3d 447,

452 (9th Cir. 1996). Similarly, 42 U.S.C. § 2000d-7(a) (1) of the Rehabilitation Act explicitly

states, “A State shall not be immune under the Eleventh Amendment of the Constitution of the

United States from suit in federal court for a violation of section 504 of the Rehabilitation act of

1973. The Supreme Court has previously held that discrimination against the disabled is a form of

discrimination protected under the Equal Protection Clause. See City of Cleburne, 473 U.S. at

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SEC. 202. DISCRIMINATION. 42 USC 12132. Subject to the provisions of this title, no

qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.


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450. The purpose of the ADA and section 504 of the Rehabilitation Act is to prohibit

discrimination against the disabled. See 42 U.S.C. § 12101 (b) (ADA); 29 U.S.C. § 701 (b) (1) (F)

(Rehabilitation Act). In both acts, Congress explicitly found that persons with disabilities have

suffered discrimination, See 42 U.S.C. § 12101 (a) (ADA); 29 U.S.C. § 701 (a) (5) (Rehabilitation

Act). Both the ADA and the Rehabilitation Act therefore are within the scope of appropriate

legislation under the Equal Protection Clause as defined by the Supreme Court. In enacting the

ADA, Congress announced that it was acting pursuant to its Fourteenth Amendment powers. See

42 U.S.C. 12101 (b) (4). Although “the constitutionality of action taken by Congress does not

depend on recitals of power which it undertakes to exercise,” Woods v. Cloyd W. Miller Co., 333

U.S. 138,144 (1948), There is great deference to congressional statements. See, e.g., Wilson-Jones

v. Caviness, 99 F.3d 203, 210 (6th Cir. 1996) (holding that a clear indication from congress is the

simplest way to show that a statute is enacted under the Fourteenth Amendment), amended on

other grounds, 107 F.3d 358 (6th Cir. 1997. Even if Congress has not abrogated a state’s immunity

under the Eleventh Amendment, a state may waive it. See Seminole Tribe, 116 S. Ct. at 1128. One

way for a state to waive its immunity is to accept federal funds where the funding statute

“manifest[s] a clear intent to condition participation in the programs funded under the Act on a

State’s consent to waive its constitutional immunity.” Atascadero 473 U.S. at 247.

The amended Rehabilitation Act provides: (1) A State shall not be immune under the

Eleventh Amendment…from any suit in Federal Court for a violation of section 504 of the

Rehabilitation Act of 1973…. or the provisions of any other Federal Statute prohibiting

discrimination by recipients of Federal Financial assistance. 42 U.S.C § 2000-7 The Supreme

Court has characterized this section as “an unambiguous waiver of the States’ Eleventh

Amendment immunity.” Lane v. Pena, 116 S. Ct. 2092, 2100 (1996) Because California accepts

federal funds under the rehabilitation Act, California has waived any immunity under the Eleventh

Amendment. The Supreme Court has defined the Equal Protection Clause to mean “that no State

shall deny to any person within its jurisdiction the equal protection of the laws, which is

essentially a direction that all persons similarly situated should be treated alike.’ City of Cleburne

v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (internal quotations omitted). (Quotation


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from Derrick Clark v. State of California, case No. 96-16952D.C. No. CV-96-1486-FMS brief

from The United States of America as the intervener). Similarly the Ninth Circuit, held the state

waived immunity under 504 by accepting federal funds. Douglas v. California Youth Authority,

2001 WL 1412937 (9th Cir. Nov. 14, 2001). See Exhibits No. 132, 133 134, 135, 36).

In Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) A policy, custom, or

practice may also be inferred where "the municipality so failed to train its employees as to

display a deliberate indifference to the constitutional rights of those within its jurisdiction." Id.

(citing Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (internal quotations omitted). A

plaintiff can show municipal policymakers acted with deliberate indifference when they

"deliberate[ly] [chose] . . . from among various alternatives" not to provide adequate training.

Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (citing Canton v. Ohio, 489 U.S.

378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)). Such a choice can be shown when "in light

of the duties assigned to specific officers or employees the need for more training is so obvious,

and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to

the need." Id. (citing Canton, 489 U.S. at 389). Johnson v. Newburgh Enlarged Sch. Dist., 239

F.3d 246 (2d Cir. 2001).

XI.

CONCLUSION

Plaintiff requests that this court deny Superior Court Defendants motion to have his complaint

dismissed in its entirety. In the alternative if this Court determines that the TRO is a bar to

jurisdiction than Plaintiff asks this court to take up jurisdiction of the other claims not related to

the TRO for Superior Court Defendants only.

Dated: March 30, 2010

_____________________

Alejandro Sanchez


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alejandro um to superior court dismissal

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