How To Guide To File a Lawsuit All 50 State & A step-by-step guide to the legal proces.
Court proceedings generally begin with the filing of a complaint and the issuance of a summons. The complaint sets forth the grounds for the lawsuit, called the "cause of action." It states the injury or damage you've suffered, the names of the persons you believe are responsible, and the type of remedy you are asking the court to impose. It also makes a statement regarding why this particular court has jurisdiction, the authority to hear the case.
The summons is a legal notice issued by the clerk of the court telling the person or persons you've named as defendants that legal action has been commenced against them. It directs the defendant to file an answer with the court by a date specified. A summons must be formally served, or delivered to the defendant. In most cases, this "service of process" is done in person, perhaps by the sheriff or another law enforcement officer. More often, the summons is served by a professional process server, or some other disinterested party. In some cases, service may be made by sending a copy of the summons and complaint through the mail.
The defendant has a specified period of time in which to respond to the summons and complaint with what's known as an "answer." The answer may be used to deny the plaintiff's charges entirely, or to assert an "affirmative defense" to the plaintiff's claim. An affirmative defense in a personal injury case, for example, might be that you were injured through your own negligence, not the alleged negligence of the defendant.
Another common answer to a complaint is one which contains a motion asking the court to dismiss the charges for failing to state a cause of action. Suppose the complaint states that the plaintiff purchased a ladder from your hardware store, and that the ladder subsequently broke, causing the plaintiff to be injured.
A claim like this would probably be dismissed for failing to state a cause of action, since the plaintiff hasn't alleged that you did anything wrong that would make you responsible for the injuries. However, most courts will allow a plaintiff to amend his complaint to state a cause of action, so any sense of relief you may get as the result of obtaining a motion to dismiss under these circumstances may only be temporary.
Along with the answer, the defendant may also file a counterclaim. A counterclaim may state that, rather than the defendant being liable for damages, in fact the plaintiff took some action which resulted in damages to the defendant. Suppose the original complaint charged the defendant with negligence in operating his motorcycle, which resulted in an accident with the plaintiff's automobile. A counterclaim might state that the plaintiff was actually negligent in the way he drove his car, and that this negligence was in fact the cause of the accident and the losses suffered by the defendant.
A person who receives a summons in a civil lawsuit may choose whether or not to respond to the court. However, failing to respond will most likely result in a default judgment being entered against the defendant.
Once the defendant's answer and any counterclaim is received by the court, a trial date will be set and what's known as "discovery" will begin. Discovery procedures are used to obtain evidence that will strengthen each party's case, and also to prevent either side from being surprised by undisclosed facts or unknown witnesses. (Unlike the way trials are often represented in movies and television programs, "surprise" witnesses don't often appear in real life trials.)
Discovery techniques include depositions, the oral questioning of the parties to the lawsuit as well as witnesses, and interrogatories, which are written questions that must be answered in writing. Depositions and interrogatories are both given under oath, and you could be charged with and convicted of perjury if you give answers that are untruthful.
While depositions and interrogatories are the best known forms of discovery, there are others as well. A "request for admissions" takes place when one side asks the other to admit to some important fact, or to attest to the authenticity of some document to be used as evidence. For example, the plaintiff's attorney may make a request for admission asking the defendant to agree to the fact that a specific document is a contract signed by both parties. If this fact is true, the defendant will admit to it. If it's not, or if there's some doubt on the defendant's part about the document's authenticity, he can deny the admission, or state that he has insufficient facts to support an admission.
A "request for production and inspection" is a form of discovery often used in business disputes. When a request for production and inspection is delivered, the party receiving it is asked to produce any and all books and documents in its possession that are pertinent to the lawsuit, or physical evidence that the party making the request cannot obtain through other means. If the party receiving the request refuses to do so, it must provide its reasons for denying the request. The party making the request can then ask the court to compel the production and inspection of the evidence. However, any request for business documents and other evidence must be fairly specific in stating what exactly is being sought, since otherwise the party making the request could simply go fishing through all of a company's files in search of evidence supporting its case.
Another form of discovery, one which is often used in personal injury cases, is the physical examination of the plaintiff. In cases brought to determine whether or not a person is competent, or to decide the fitness of a parent to have custody, mental and psychological examinations of the parties may also be sought.
Either side in the case may choose to file certain motions with the court. These motions are requests that are made to the court regarding some issue in the case, and asking the court to make a decision. Among the most common types of motions are those that ask the court to allow a plaintiff to amend a complaint, which ask the court to order the opposing party to comply with discovery requests, and which ask the court to dismiss the charges against a particular defendant.
Pretrial conferences may be called in order to allow both parties to discuss the issues in the case. Pretrial conferences are intended to minimize delays in trial proceedings, and in many cases these conferences will lead to an out of court settlement so that a trial will not need to take place at all. However, if a settlement can't be reached before the trial date set by the court, the next step in the litigation process is the trial itself.
Once the case is called to trial, a jury will usually be selected to hear the case, unless the parties have agreed to have the case tried by the judge. We'll say more about juries a little later on.
Each side then gets to make it's opening statement. These statements are summaries of what each party will try to establish during the length of the trial. In some cases, the attorney for the defendant may decide to wait to make his opening statement until later in the proceedings, after the plaintiff has completed presenting his case.
Because the plaintiff has the burden of proof and has to prove its case, the plaintiff gets to go first in presenting his case. That means calling witnesses and presenting evidence in support of the claim made against the defendant. After the plaintiff's attorney finishes questioning a witness (called "direct examination,") the lawyer for the defendant gets the chance to cross-examine the witness, to point up contradictions in the witness' testimony, to show that the witness is unreliable, or to show that the witness has an interest in having the outcome of the case decided in favor of the plaintiff.
After all of the plaintiff's witnesses have been called and all the evidence in support of the plaintiff's case has been presented, the plaintiff "rests his case." At this point, the lawyer for the defendant will ask the court to dismiss the case for lack of proof. If the plaintiff hasn't been able to set out enough evidence to support his claim, a motion to dismiss may be granted. More likely, however, the motion will be denied, and the defendant then gets to present his case. If he's reserved the right to make his opening statement to the jury, this is the time when he'll do so. Otherwise, the defendant begins by calling witnesses and presenting evidence designed to refute the plaintiff's claims.
Just as the defense gets to cross-examine the plaintiff's witnesses, the plaintiff can cross-examine the witnesses testifying on the defendant's behalf. After all of the defense witnesses have been called and the defense rests its case, the plaintiff gets the opportunity to present what's known as "rebuttal evidence." This rebuttal evidence is additional testimony from witnesses or other evidence that explains away some of the defense's case, or which contradicts it outright.
Each side then gets to make a closing statement, which summarizes its arguments and case and asks the court or the jury to provide a favorable judgment. Just as the plaintiff gets the chance to present rebuttal evidence after the defense presents its case, the plaintiff also gets the chance to speak after the defense makes its closing statement, in a final attempt to convince the court to find in the plaintiff's favor.
If a jury trial has been conducted, the jury will then be given instructions by the judge. These instructions include the law that governs the case, the way the jury must apply the law to the facts, and the burden of proof that must be met in order for the plaintiff to win. In most civil cases, the plaintiff must prove its case by a standard known as "a preponderance of the evidence." Basically, this means that the jury must believe that it's more likely than not that the defendant is liable for the damages the plaintiff claims.
The jury is then sent off to a room in the courthouse where it will deliberate until it reaches its decision, or until it becomes clear that the jury is deadlocked and cannot reach a decision. Deadlocked, or "hung' juries don't occur as often in civil cases as they do in criminal trials. Unlike criminal cases, which almost always require the jury to reach a unanimous decision, civil cases can often be decided by a decision of a simple majority of the jurors, or in some cases when two-thirds of them reach agreement.
Once the jury reaches its decision, it returns to the courtroom, where the verdict is announced. At this point, the lawyer for the losing side will almost always ask for what's known as "judgment notwithstanding the verdict." This motion asks the court to disregard the jury verdict and find in favor of the losing side instead. Courts will not grant this motion unless the verdict is clearly outrageous in light of the evidence presented during the trial. In most cases, a final judgment reflecting the jury's decision is entered by the court. At this point, the losing side in the trial must decide whether or not to appeal the trial court ruling.
Generally, an appeal can only be filed when the losing side can make the argument that the court erred in some courtroom procedure or in its interpretation of the law governing the case. The party filing the appeal, called the "appellant" usually can't re-argue the facts of the case to the appeals court. However, in some cases an appeals court can "remand," or return the case to the trial court for further consideration of the facts in light of the appeals court's instructions on how they should be interpreted under the law.
While the steps above provide a general outline of the procedures followed in most civil courts, remember that state court rules and procedures do vary somewhat from place to place. If you are involved in a lawsuit, your attorney can give you more information about the exact procedures that will be followed in the court hearing your case.
You may also be surprised to learn that most trials contain little of the drama associated with the courtroom dramas portrayed in films and plays. In many cases, the lawyers will conduct a lot of business up at the judge's bench, trying to settle procedural issues out of earshot of the jury. And the judge may order the jury out of the courtroom during certain parts of the trial as he attempts to determine whether or not evidence can be admitted for the jury's consideration.
The lawyers won't often have the certainty of a Perry Mason, but then again they don't have the luxury of a script to follow and a director who can yell "Cut" and reshoot the scene when a line is flubbed. Nor will they be likely to wander around the courtroom or approach the witnesses to look them in the eyes and elicit some surprising admission. In most courtrooms, lawyers are required to remain standing at a podium several feet from where the witness sits, and may only approach the witness with the permission of the judge. In general, a lawyer who conducted himself the way most television and film lawyers do would find himself faced with contempt of court charges on a regular basis.
And even after the trial has been completed and while the jury is deliberating, the case may be settled, so the tension and excitement associated with the jury's return to the courtroom may never even be experienced. All in all, real life trials contain little of the electricity most of us are familiar with from their fictional counterparts.
On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.
It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property.  Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. 
Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."
"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."
As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.
When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)
The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).
Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.
Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. 
Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).
For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)
Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.
Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.
Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)
Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.
Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).
Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.
The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.
The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.
Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."
The words of Justice Louis Brandeis however, offer another view: "Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).
Suing the Government for Negligence: The Federal Tort Claims Act If you are injured by a government agency, you may be able to sue under the Federal Tort Claims Act.
Slip and fall in a post office? Injured in a traffic accident involving an FBI agent? Medical malpractice by a Veterans Administration doctor? These are only a few examples of the potential negligence claims against the federal government. If you have a claim against the feds, often your only option is to sue the federal government under the Federal Tort Claims Act (FTCA).
Unfortunately, suing the federal government under the FTCA is trickier than suing a private citizen -- you will have to jump through a number of hoops, and the lawsuits are subject to a lengthy and sometimes confusing list of limitations.The Federal Tort Claims Act ("FTCA")
Historically, under the doctrine of "sovereign immunity," you were not permitted to sue the king. Sovereign immunity has carried over to modern times in the form of a general rule that you cannot sue the government -- unless the government says you can. Fortunately, the Federal Tort Claims Act ("FTCA") allows certain kinds of lawsuits against federal employees who are acting within the scope of their employment.
If you believe you may have a claim for negligence (careless conduct, or other wrongful or "tortious" conduct) against a federal agency or employee, you must first determine whether you can sue the federal government under the FTCA. Unless your claim is allowed by the FTCA, there is a good chance it will be barred by sovereign immunity. (To learn more about what constitutes negligence, read Nolo's article Who's at Fault for an Accident FAQ.)Is My Claim Permitted By the FTCA?
In general, the FTCA is intended to provide monetary compensation for injury, property loss, or death "caused by the negligent or wrongful act or omission of any employee of the Government." But this broad-sounding mandate is subject to a lot of fine print.
Although the limitations and exceptions are too numerous to review in this article, here are some general guidelines regarding the limitations on FTCA claims:Only federal employees can be sued under the FTCA, not independent contractors hired by the federal government (unless they are treated like employees).The negligent or wrongful conduct must have been done within the scope of the defendant's employment.In general, only claims of negligence -- as opposed to intentional misconduct -- are allowed (though some claims for intentional misconduct can be brought against certain federal law enforcement officers).The claim must be based on -- and permitted by -- the law of the state in which the misconduct occurred.
Despite these and numerous other limitations on FTCA lawsuits, the federal government still pays out millions of dollars each year to compensate FTCA claims. So if you think you may have a valid claim, it may be worth pursuing.
If you determine that you do have a valid FTCA claim, the next hurdle is to follow the prescribed steps for such claims, which include some strict time limits.
Filing an Administrative ClaimIn a normal lawsuit claiming negligence, you proceed more or less straight to court. But if you wish to sue under the FTCA, you must first file a claim with the federal agency responsible for the alleged misconduct. For example, if your claim is based on an accident at the post office, you would file your claim with the U.S. Postal Service. During this phase of the process, while your claim is being reviewed by the federal agency, it is referred to as an "administrative claim."
Although not strictly necessary, the easiest way to prepare your administrative claim is to use the federal government's standard claim form, known as a Standard Form 95 or SF 95, which has boxes for all the information you will need to provide. You can get a copy of the form from the Department of Justice's website (at www.usdoj.gov, type "standard form 95" into the search box) or request a copy from the federal agency to which you will be submitting your claim.
Here is an overview of how the administrative claim process works:
You must file within two years. You have two years from the time your claim arises to file your administrative claim with the appropriate federal agency. Because the exact date when your claim arose may be a legal issue in your case, it is important to file your administrative claim as soon as possible to avoid any chance of it being rejected as untimely.
Include facts and damages in your claim. Your administrative claim must include the exact amount of money damages you are claiming, as well as enough facts about your case to allow the federal agency to investigate the merits of your claim. Using a SF 95 form will help ensure that you've included all of the necessary information.
The agency has six months to respond. Once your claim is submitted, the federal agency has six months to rule on it. In some cases, the federal agency may "admit" your claim (that is, agree that your claim is valid) and agree to pay you some or all of the money damages you demanded, and you may not need to go to court.
You then have six months to file a lawsuit. If the federal agency rejects your claim or refuses to pay all the money damages you demanded, you have six months from the date on which the decision is mailed to you to file a lawsuit. Again, file your lawsuit as soon as possible after receiving this decision to avoid any chance of having your lawsuit dismissed as untimely.
You don't have to sue until the agency rules on your claim. If the federal agency fails to rule on your administrative claim within six months, you have the choice of either awaiting the agency's decision or going ahead with your lawsuit. As long as the federal agency is still considering your claim, there is no time limit for you to file a law suit in federal court; the six-month time limit only begins to run once the agency has ruled on your claim.
Once you have gone through the procedures listed above -- a process known as "exhausting your administrative remedies" -- you are eligible to file a lawsuit in court to pursue money damages from the government.Filing Your Lawsuit in Federal Court
You must file your lawsuit in the United States District Court (the formal name for federal court) either where you live or where your claim arose. For example, if your claim involves an accident at a post office, you have the option of filing your lawsuit in the federal court where you live or where the post office is located. However, when suing the federal government for negligence, you cannot file your lawsuit in state court.
You cannot sue the federal government for more money than you asked for in your administrative claim unless you present newly discovered evidence that adds to the value of your injuries or property loss. Also, you cannot ask for punitive damages.
Once you have filed your lawsuit in federal court, the process becomes similar to any other lawsuit, including the opportunity to try and negotiate a settlement of your claim with the lawyer representing the government.Settling Your FTCA Claim
You generally have two opportunities to settle your claim with the federal government. First, during the administrative claim process, you may be able to agree on an out-of-court settlement with the government attorney assigned to your case. Generally, this attorney will work for the federal agency that you have sued.
Second, once you file a lawsuit in federal court, it is typically assigned to a new team of attorneys from the U.S. Department of Justice, who may take a different view of your case and be more willing to settle with you.Should You Represent Yourself or Get an Attorney?
As a general matter, federal courts go to considerable lengths to be fair to unrepresented plaintiffs and expect the lawyers employed by federal agencies and the U.S. Department of Justice to do the same. Nevertheless, the FTCA is a highly complex law, and unrepresented plaintiffs are unlikely to understand all of the arcane legal defenses and exceptions involved in their case. And, as with any personal injury case, if your damages are substantial, it is usually advisable to hire an attorney. (To learn more about finding an attorney, see Finding a Personal Injury Lawyer or visit Nolo's Lawyer Directory .)
The one instance in which it may make more sense to represent yourself is where the damages involved in your case are relatively small, rendering an attorney unaffordable. Keep in mind, however, that you may need a lawyer to help determine the kinds of damages to which you may be entitled -- and many lawyers do not charge for an initial consultation, during which they could tell you the range of damages involved in your case.
If you choose to represent yourself, you may be able to get some assistance from the Pro Se Office at the courthouse where you file your claim, which is there to help plaintiffs who are not represented by an attorney. (To learn more about navigating the court system on your own, see Nolo's Representing Yourself in Court area.)
How to sue the court...or, is bashing your head against the wall worth$$$?DISCLAIMER! This writer is not an attorney. This is not meant as legal advice. All information can be found on the internet if you have enough time to find it...say the court took your children away and you are not a drug addict or alcoholic, so you have too much time on your hands.
The claim form for "Government Claim - Judicial Branch" used to be posted if you searched hard enough on the LASC website. The link is broken today, so here is a link toSan Diego's form. Just mail the same form to the Executive Officer in L.A. at 111 North Hill Street.
According to Government code 905.7 "All claims against a judicial branch entity for money or damages based upon an express contract or for an injury for which the judicial branch entity is liable shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of this part." Look here to read all about Government Code 900 et seq.
Once you send in your claim and you get rejected, you can file a lawsuit, but the statutory time limit is shortened to six months from the time of rejection. That according to Government Code 945.6.
Remember, if you file against the State in a State Court, you have your adversary as judge.You may be able to bring your suit in Federal Court. Jurisdiction of the Federal Court is described at www.uscourts.gov. It says there that one main source of Federal jurisdiction is a "federal question". So, pour over the Constitution of the United States and Federal Codes. Of special interest are the first amendment, fifth amendment and fourteenth amendment.
Also, take a gander at 42 USC 1983. It says "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
The most controversial issue is that Judges have given themselves absolute judicial immunity, meaning they can not be found liable in a civil action for acts taken inside their jurisdiction. They can still be found criminally guilty, so share your story with the FBI.
There are thousands of children suing two judges in Pennsylvania after the judges allegedly sold the kids to a juvenile detention facility the judges had an economic interest in. A later article will give you links to that case. For now, the idea is to find a reason the judge was acting outside the jurisdiction of the court, for instance, if the judge was trying to chill free speech or redress of grievances, as claimed by the supporters of Richard Fine. (They claim Judge Yaffe threw Richard Fine into "coercive confinement" motivated not by issues within his jurisdiction, but because he wanted to shut the crusading attorney up.)
As always, you should consult an attorney for a professional opinion on your particular circumstances.Part two of How to sue the court : Continuing course of conduct and pleading the fifth Did you read the DISCLAIMER? If yes, continue. (Hint. This is not meant as legal advice. If you desire legal advice, please contact a competent attorney. This writer is not an attorney and will not be one until 2013. How old will your child be then?)
Ok. You think you have cause to sue a judge for a violation of a federal question. Perhaps the judge tried to use his position of power on the bench to punish you for the things you wrote about him on www.courthouseforum.com. Even after you got him recused from your case and out of family law, you had the distinct impression the harassment against you continued. Perhaps some of your files went missing and the old judge communicated with the new judge about your case, so she would "understand".
Suppose you heard the CJP gave a private admonishment to a supervising judge because the supervising judge tried to cover for the trial court judge. You suspect this was about your case in particular, but State law will not allow you to subpoena records of disciplinary actions against judges.
Here are some interesting thoughts written by Jonathan C. Moore, an attorney whose area of practice is civil rights with a focus on police and governmental misconduct .
"Local rules, privileges or statutes limiting access to police or judicial records, of course, are entirely or almost entirely irrelevant to a plaintiff's right to discover them in federal court. The supremacy clause precludes the use of state statutes to override federal discovery rules. E.g., United States v. One Parcel of Property Located at 31 - 33 York Street, Hartford, Connecticut; Kerr v. United States District Court; Penfield v. Venut); United States v. Thorne; Miller v. Pancucci. Similarly, local rules of the district court limiting discovery may not displace the broad discovery allowed by the Federal Rules of Civil Procedure. Wilson v. City of Zanesville".
Mr. Moore gave case citations, which you can receive upon request to Bohemian_books@yahoo.com. Ditto for the other info from Mr. Moore.
When you send a claim to the Executive Officer of the Court, you may receive a denial based on the fact that some of the incidents happened longer ago than the statute of limitations. You may feel frustrated because you think the conduct was not just the first singular act. You would have gone on your merry way if the problem was nipped in the bud. But there was a continuing pattern that lasted longer than the statute of limitations. Mr. Moore wrote:
With the "continuing course of conduct" doctrine, the "statute of limitations does not start running at all if the course of conduct is ongoing. Jaghory v. New York State Dept. of Education; Palmer v. Board of Education; Velez v. City of New London. ‘To invoke the continuing violations doctrine…, [the plaintiff] must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of [an unlawful] system both before and during that period….Thus, a continuing violation may be established through a series of related acts against one individual, or by a systematic policy or practice….' Gutowsky v. County of Placer. Citing Green v Los Angeles County Superintendent of Schools. Cf., Bonner v. Guccione".
Missing documents? Mr. Moore gave interesting instruction on that issue.
We have all seen movies about criminals who "plead the fifth". That refers to a witness' right not to testify as it may incriminate him. In criminal trials, juries are instructed that they may make no negative inference from the silent witness, according to Mr. Moore. But, he writes, civil cases are different.
Mr. Moore said that in civil trials, the jury is allowed to make an adverse inference from a witness' silence. And if documents are shredded, like in the case where an anonymous informant says Judge Donna Goldstein made an ex parte communication disappear from the case file, the jury may also make an adverse inference. In Mr. Moore's words:
"The jury may be permitted to draw a similar permissive adverse inference from evidence that a defendant or his employer destroyed relevant evidence. Kronisch v. United States".
So, in civil litigation, suspicious behavior can be considered suspiciousHow to sue the court part 3: Jumping through the hoops : Answers not to be found
Please do not take this as legal advice. If you have a particular circumstance that troubles you, seek the advice of a competent attorney. This writer is still 1L and is merely musing.
When one decides to sue the court, he can read Government Code 900 et seq.
If the claim is denied and one files suit against the court in Federal Court, he may receive a response like the following from Magistrate Judge Victor B. Kenton:
"The Eleventh Amendment prohibits federal jurisdiction over suits against the state or a state agency unless the state or agency consents to the suit."
The Eleventh Amendment does in fact read "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
You may say "but what about a suit by a citizen of the state being sued?"
According to Wikipedia, that question was asked and answered in the Supreme Court case of Hans v Louisiana. In Hans there was a narrow margin (5 to 4) in favor of restricting the right to sue an agency of the state by the state's own citizens.
So, then, why would any state agency agree to be sued, and what is the mechanism for obtaining the permission?
UPDATE: When the Pro Se clinic lawyer was asked how to gain permission to sue the court, she said she did not know permission was required. She guessed Magistrate Kenton was referring to judicial immunity, but the response from Magistrate Kenton was clear, the plaintiff must first obtain "permission" from the court.
Court Counsel Brett Bianco also failed to provide any method for gaining court permission, even though he is the person who provides the defense for the court.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia
The Civil Rights Act of 1871 Law bans discrimination enacted under color of state law.The Civil Rights Act of 1871 is found in Title 42, section 1983 of the United States Code and so is commonly referred to as section 1983. It provides that anyone who, under color of state or local law, causes a person to be deprived of rights guaranteed by the U.S. Constitution, or federal law, is liable to that person.
Six black children and their parents brought a Section 1983 action in federal district court against the city of Chicago and thirteen of its police officers for damages for violation of their rights under the Fourteenth Amendment. They alleged that, without warrant, the police officers broke into their home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers; that the father was taken to the police station and detained on "open" charges for ten hours while he was interrogated about a two-day-old murder; that he was not taken before a magistrate, though one was accessible; that he was subsequently released without criminal charges being filed against him.
Were the police officers and the city of Chicago liable under Section 1983 for what was done to the plaintiffs? (Yes)
SUPREME COURT DECISION
Police officers acting illegally and outside their scope of authority may be liable under Section 1983 despite the requirement that the officers must have been acting under color of state law. The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" contained in 42 U.S.C. 1983 do not exclude acts of an official or police officer who can show no authority under state law, custom, or usage to do what he or she did or who even violated the state constitution and laws. The city of Chicago, however, was not held liable, because the Court ruled that Congress did not intend to bring municipal corporations within the ambit of Section 1983 (this ruling was later overturned by the Court).
This case virtually opened the floodgates of the courts to civil rights (or Section 1983) litigation. Prior to this, it was difficult to hold public officials liable under Section 1983 because of the requirement that they must have acted under color of state law. Most civil liabilities, however, stem from the abuse of power or authority by the police, and such actions were considered outside the color of state law. Monell changed all that. Now police officers can be sued under Section 1983 if what they did arose out of a "misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." An officer who abuses his or her authority can now be sued under Section 1983 as having acted under color of state law. Under Monell, the term "under color of state law" is not synonymous with "acting within the scope of authority." An officer can act outside the scope of authority, or even illegally, and still be sued under Section 1983 as having acting under color of state law.
A reliable source on Section 1983 litigation, this Law in a Nutshell: Section 1983 Litigation provides an authoritative commentary which includes coverage of Monroe and the modern Section 1983 Action; Parratt and the scope of due process; excessive force, private violence, and Section 1983; and enforcing the laws under Section 1983. Also discusses municipal liability, state sovereign immunity, and personal immunities.
Features and Benefits include: -Timesaving reference tool; -Broad coverage of Section 1983; -Details Section 1983 in the state courts; -Discusses Section 1983 and habeas corpus; -Identifies jurisdiction and procedure; -Answer exam questions quickly and accurately. 366 pages; ISBN 0314247098
Section 1983 Litigation(PDF size-1.56M) Second EditionMartin A. Schwartz Touro College, Jacob D. Fuchsberg Law CenterKathryn R. Urbonya The College of William and Mary School of LawFederal Judicial Center 2008
Mudge v Macomb County SCt# 103985 Decided: July 1, 1998 Panel: (entire bench): TAYLOR, Weaver (concurring in part), Boyle (concurring in part; dissenting in part)
458 Mich 87; 580 NW2d 845Civil Rights - Section 1983 Action - Liability - Violation of Rights - Federal/State
Recovery in a section 1983 action must be based upon the deprivation of a federal statutory or constitutional right. The violation of a state law cannot be the basis of a section 1983 claim. A claim based upon an action which violated both federal and state law may be pursued.
In deflecting criticisms regarding the government's failure to fulfill its obligation to ensure the rights of individuals within the United States are protected, officials often point to civil remedies as the most effective avenue for redress. Although no substitute for prosecutions of officers who commit crimes, civil cases are easier to pursue as an evidentiary matter because they use a lower standard of proof than is required in criminal cases: a preponderance of the evidence, rather than beyond a reasonable doubt. Some reforms in police practices have stemmed from costly lawsuits or the threat of lawsuits; more typically, however, civil remedies have been limited to providing monetary relief to individual victims. And, unlike criminal cases and disciplinary actions against officers, which are pursued by the government, most civil cases must be shouldered by the plaintiff.
In 1977, the Illinois Supreme Court held that no cause of action existed against a local school district for its refusal to place a learning disabled student in special education classes. Pierce v. Board of Education of the City of Chicago, 69 Ill. 2d 89 (1977). The court based its decision on two factors; (1) the plaintiff's failure to exhaust all administrative remedies; and (2) the local school district was the improper party; rather, the court found that placement of learning disabled students was the duty of the Illinois State Board of Education.
The Second District Court of Appeal in Los Angeles has ruled that a decedent's representative may recover emotional distress damages in a section 1983 civil rights action. It determined that California's statutory bar to such damages offended the policies underlying section 1983.
Courts entertaining section 1983 claims must follow state survival rules, unless the rules violate federal law. Robertson v. Wegmann, 436 U.S. 584 (1978); 42 U.S.C. sec. 1988. California law provides for survival of a decedent's causes of action. In a survival action, the estate may recover punitive damages, but not the decedent's emotional distress damages. Cal. Civ. Proc. Code secs. 377.20, 377.34. The Court of Appeal decided that the availability of economic and punitive damages against individual defendants did not sufficiently serve section 1983's deterrent policy. Local government entities are immune from section 1983 punitive damage liability. Therefore, plaintiffs should be able to recover their decedents' emotional distress damages to deter unlawful conduct. The court disagreed with a contrary statement in Garcia v. Superior Court, 42 Cal. App. 4th 177 (1996), which was discussed in the March 1996 issue of Appellate Decisions Noted. It also distinguished Garcia as involving a civil rights claim that caused the decedent's death. That gave the survivors the additional remedy of a wrongful death action. The court chose to follow a similar federal district court decision. SeeWilliams v. City of Oakland, 915 F. Supp. 1074 (N.D. Cal. 1996), discussed in theApril 1996 issue.
County of Los Angeles v. Superior Court, 1996 WL 668584 (Cal. Ct. App. Nov. 20, 1996
Ten years ago, the Supreme Court ended an era in which public and assisted housing tenants had had a difficult time enforcing federal housing legislation in federal court. The case was Wright v. Roanoke Redevelopment and Housing Authority, 478 U.S. 418 (1987). The plaintiffs had claimed that their housing authority had not been granting them a reasonable utility allowance to which they were entitled under the Brooke Amendment and its implementing regulations. The issue was whether that entitlement was a "right" that could be enforced pursuant to 42 U.S.C.A. ' 1983 (West Supp. 1997). In a 5-4 decision, the Supreme Court said it was. Relying upon Wright, the lower courts soon thereafter began opening up their doors to public and assisted housing tenants.Zinermon v. Burch, 494 U.S. 113 (1990)
Key Issue: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
PLAINTIFF’S REPLY TO DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) AND 12(e); MEMORANDUM OF LAW
Defendant has continually sought to avoid a presentation in this matter based upon the facts and seeks now to dismiss plaintiff’s Amended Complaint which has been submitted in accordance with the prior direction of this Court. The question is whether in this matter, commenced under 42 U.S.C. sec. 1983, there is any type of heightened standard of pleading.
A Bivens action is a civil lawsuit filed by an inmate against the officials or entities having custody of him. These suits are filed under 42 U.S.C.A. § 1983, and are steadily increasing in number each year. These suits are filed in the civil division of the federal court having jurisdiction over the prisoner, and all allege a violation of the inmate's civil rights in one form or another. Many Section 1983 suits pertain to a violation of the inmate's Eighth Amendment Rights through the delay or denial of medical treatment. Specifically, the inmate filing the lawsuit alleges that during incarceration, he or she was subjected to cruel and unusual punishment via the delay or denial of medical treatment.
Also see AFRA's Caselaw BIN"[T]he very nature of mental illness makes it forseeable that a person needing mental health care will be unable to understand any proferred 'explanation and disclosure of the subject matter' of the forms that person is asked to sign, and will be unable to make 'knowing and wilful decision' whether to consent to admission."
Beltran v. Santa Clara County, 514 F.3d 906, (9th Cir. 2008) Beltrans sued two caseworkers under 42 U.S.C. ' 1983, charging constitutional violations in removing child from their custody and attempting to place him under the supervision of the state by fabricating evidence. Court overruled Doe v. Lebbos, and reversed the district court's ruling that defendants were entitled to absolute immunity.
Brokaw v. Mercer County, 235 F.3d 1000, (7th Cir. 2000) In 1983, three-year old A.D. Brokaw was removed from her parents' home based on allegations of child neglect. After she turned eighteen, she sued her paternal grandfather, aunt, and uncle, alleging that they conspired to violate her constitutional rights by reporting false claims of child neglect. A.D. also sued the various state actors and agencies involved in removing her from her parents' custody. The district court held that A.D.'s suit was barred by the Rooker-Feldman doctrine because, in effect, A.D. was challenging the validity of the state removal proceedings. The Eleventh Circuit reversed and remanded.
Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) "This case involves whether a social worker and a police officer were entitled to qualified immunity, for a coerced entry into a home to investigate suspected child abuse, interrogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency." Can you guess what the answer was? "An unlawful entry or search of a home does not end when the government officials walk across the threshold. It continues as they impose their will on the residents of the home in which they have no right to be."
Chavez v. Board of County Commissioners, 2001-NMCA-065, New Mexico Court of Appeals (2001) Defendants are deputy sheriffs with the Curry County Sheriff's Department, who were called to assist two social workers from the Children, Youth & Families Department on a "child welfare check" at Plaintiff's home. Plaintiff's son had not been attending elementary school. Thus, one reason for the visit to Plaintiff's home was to investigate suspected truancy or educational neglect. Held: "At the time of entry into Plaintiff's home, it was well-settled that the Fourth Amendment to the United States Constitution prohibited unreasonable searches and seizures and was intended to protect the sanctity of an individual's home and privacy."
Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123 (3d Cir. 1997) Holding that "a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse."
Doe v. Gooden, 214 F.3d 952 (8th Cir. 2000) School district officials can be liable under 1983 if they are deliberately indifferent to acts committed by a teacher that violate a student's constitutional rights.
Franz v. United States, 707 F 2d 582, US Ct App (1983) "The undesirability of cultural homogenization would lead us to oppose efforts by the state to assume a greater role in children's development, even if we were confident that the state were capable of doing so effectively and intelligently. " A brilliant analysis of the fundamental right to be free of unwarranted state interference between the child-parent bond, in this case stemming from the Witness Protection Program.
Good v. Dauphin County Soc. Servs. for Children and Youth, 891 F.2d 1087, (3d Cir. 1989) "[P]hysical entry into the home is the chief evil against which the ... Fourth Amendment is directed," the Court explained, while adding: "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable. " No qualified immunity claim to be found here.
Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, (8th Cir.2003) Waddle, as Chief Juvenile Officer for the Second Circuit of Missouri, effected the removal of 115 boarding students from Heartland Christian Academy . Waddle had obtained ex parte probable-cause state-court orders to remove some of the boarding students, there were no orders of any kind to remove many of the students who were taken from the school. This case is noted for its brilliant analysis of Eleventh Amendment sovereign immunity, the Rooker-Feldman doctrine, and immunity as an officer of a juvenile court. The court held that: "any single violation of Heartland's federal constitutional rights in this case would be sufficient to sustain Heartland's claim for injunctive relief under ' 1983."
Jones v. Hunt, 410 F.3d 1221 (10th Cir. 2005) No qualified immunity in this ' 1983 action for alleged violations of Fourth Amendment rights arising from girl's in-school seizure by a deputy sheriff and s Social Worker Supervisor for the New Mexico Children, Youth, and Families Department ("CYFD"). "We conclude that the Fourth Amendment violation as alleged in this case is both obvious and outrageous."
Kelson v. Springfield, 767 F 2d 651, (9th Cir. 1985) "Supreme Court and Ninth Circuit precedent establish that a parent has a constitutionally protected liberty interest in the companionship and society of his or her child. The state's interference with that liberty interest without due process of law is remediable under section 1983."
Lopkof v. Slater, 103 F.3d 144 (10th Cir. 1996) (Unpublished) Defendants do not dispute that the law was clearly established that a warrantless search of a private residence is per se unreasonable under the Fourth Amendment unless one of "a few specifically established and well-delineated exceptions" applies. Defendants maintain that because they had "received specific information questioning the safety of children," they acted in an objectively reasonable manner when they entered Lopkoff's private residence. Wrong, and no qualified immunity for these officers.
Loudermilk v. Arpaio, 2007 U.S. Dist. LEXIS 76819 (D. Ariz. September 27, 2007) With respect to Plaintiffs' claim based on violation of the Fourteenth Amendment, parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Motion to dismiss by CPS worker and others who coerced entry into home denied.
Mabe v. San Bernardino, 237 F.3d 1101 (9th Cir. 2001) Section 1983 creates a cause of action against any person who, acting under color of state law, violates the constitutional rights of another person. Whether reasonable cause to believe exigent circumstances existed in a given situation, "and the related questions, are all questions of fact to be determined by a jury." Hence, no immunity for social worker under 42 U.S.C. 1983.
Michael v. Gresbach, (7th Cir. 2008) The court held that: "a reasonable child welfare worker would have known that conducting a search of a child's body under his clothes, on private property, without consent or the presence of any other exception to the warrant requirement of the Fourth Amendment, is in direct violation of the child's constitutional right to be free from unreasonable searches." No qualified immunity for this CPS caseworker! The court also held that the state statute that allowed for "investigations" on private property without a search warrant was itself unconstitutional as applied.
Malik v. Arapahoe County Dept. of Soc. Servs.191 F.3d 1306, (10th Cir. 1999) "The defense of qualified immunity protects government officials from individual liability under 42 U.S.C. ' 1983 for actions taken while performing discretionary functions, unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Court also held that: "it was clearly established law that, except in extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures."
Norfleet v. Arkansas Dept. of Human Servs., 989 F.2d 289 (8th Cir. 1993) Court denies qualified immunity to the Human Services Director and caseworker involved because the state obligation to provide adequate medical care, protection, and supervision with respect to children placed in foster care was well established as of 1991.
Parkhurst v. Trapp, 77 F.3d 707 (3rd Cir. 1996) The defendants attempt to avoid the imposition of summary judgment by arguing that, even if their conduct violated the Fourth Amendment, qualified immunity should shield them from liability. Qualified immunity is available to state actors in Section 1983 suits if those actors reasonably believed that their conduct was lawful. However, a good faith belief in the legality of conduct is not sufficient. Held: No qualified immunity.
Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997) Holding "a parent has a constitutionally protected right to the care and custody of his children and he cannot be summarily deprived of custody without notice and a hearing except when the children are in imminent danger." No qualified immunity for social worker who removed child not in imminent danger.
Rogers v. County of San Joaquin, 487 F.3d 1288 (9th Cir. 2007) Court held: "the rights of families to be free from governmental interference and arbitrary state action are also important. Thus, we must balance, on the one hand, the need to protect children from abuse and neglect and, on the other, the preservation of the essential privacy and liberty interests that families are guaranteed under both the Fourth and Fourteenth Amendments of our Constitution. " Section 1983 case reinforces that removal of children from home by caseworker absent either a warrant or exigent circumstances violates those rights, and therefore no qualified immunity applies to caseworker.
Roska v. Peterson, 328 F.3d 1230, (10 Cir. 2003) Holding no immunity for caseworkers who entered a home lacking either exigency or a warrant, and finding constitutional protection in the right to maintain a family relationship, Court held: "the law is now clearly established that, absent probable cause and a warrant or exigent circumstances, social workers may not enter an individual's home for the purpose of taking a child into protective custody."
Tennenbaum v. Williams, 193 F.3d 581, (2d Cir. 1999) "We affirm the judgment insofar as it holds that the medical examination violated the Tenenbaums' and Sarah's procedural due-process rights and Sarah's Fourth Amendment rights and awards damages therefor. . . We conclude, however, that there is a triable issue of fact as to whether the defendants' removal of Sarah from school was contrary to the procedural requirements of the Due Process Clause and to Sarah's right to be free from unreasonable seizures under the Fourth Amendment." The Missouri Bar has an informative Courts Bulletin describing the case.
Turner v. Houseman, Docket: 07-6108 (10th Cir. 2008) (Unpublished) "It was clearly established, at least two years before the events in question, that absent probable cause and a warrant or exigent circumstances, neither police nor social workers may enter a person's home without a valid consent, even for the purpose of taking a child into custody, much less to conduct a search. It was also established that the warrantless seizure and detention of a person without probable cause or exigent circumstances, as alleged in Turner's petition, is unreasonable. "
Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) "In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill-considered and improper governmental action may create significant injury where no problem of any kind previously existed."
Walsh v. Erie County Dep't of Job & Family Servs., 240 F. Supp. 2d 731, (N.D. Ohio 2003) "Despite the Defendants' exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door. . . Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority."
Weller v. Dept of Soc. Servs., 901 F.2d 387, (4th Cir. 1990) "Substantive due process does not categorically bar the government from altering parental custody rights." What I find interesting about this case is that it was brought pro se, and that he sued a lot more people than I am.
Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997) Whismans filed this action against juvenile officers and social workers, claiming they violated plaintiffs' constitutional rights of familial association, denying plaintiffs due process of law. Defendants filed a motion to dismiss, contending that plaintiffs' claims were not actionable under 42 U.S.C. ' 1983. Guess again!
Wooley v. City of Baton Rouge, 211 F.3d 913, (5th Cir. 2000) Holding that a "childs right to family integrity is concomitant to that of a parent. No qualified immunity for police officers who removed young child in this section 1983 action
NOTICE TO LAWYERS~Here's the hottest opportunity available to legal firms available anywhere in the westernized world! Here's the new melon patch full of fat, evil, insane money bags to be squashed. They have been operating like arrogant fascists for thirty-plus years and have become so lazy, sloppy, incompetent and malfeasant they can't hide the tracks of their pandemic plague of family destruction for profit. It is what the federal government has been paying for, and that's what we are getting. Here's the rathole of fraud that most of the Social Security funds have been draining out through. It's the flourishing welfare system for America's ethically-challenged New Class. It's a huge rotting and fetid fraud and international scandal, if anybody would pull the camouflage net off of it.Make Million$ in fees, costs and expenses suing CPS agencies. Recover Trillion$ in compensatory damages, punitive damages, and relief to families that have been utterly destroyed, rendered penniless, homeless and unemployable without benefit of their Constitutional Rights over the past 30 years. Recover the college funds and second mortgages taken out on homes and properties to finance a hopeless defense against CPS and their colluders.These monsters are responsible for thousands of stress-related DEATHS and suicides, not to mention the thousands of KIDS KILLED in CPS custody, and especially the millions of kids with psychotropic drug-toasted brains (with dope non-FDA approved for age) who will spend the rest of their lives institutionalized just because the child abuse industrial complex greedily harvested their SSI funds and robbed them of not only their childhood but their Family Tree is a stump in a barren clear-cut. It is a holocaust that will take the next 40 years to understand all the consequences. If America even survives it.
HERE"S THE BLUEPRINT for a deprivation of Constitutional Rights under Color of Law, 42 Sect 1983 action. Almost word for word, paragraph by paragraph, the standard corrupt mode of operation of CPS and their colluders is dealt with. Missing is the detail of the conspiracy with Mental Illness providers and clinicians to assist in the standard character assassination of parents. Also missing is the detail of the conspiracy of Attorneys to facilitate Plea Bargains and provide NO DEFENSE whatsoever.
Who wants to become the new Gerry Spence and legendary folk hero of families and free people everywhere (and become fabulously rich while doing so)? Here's your opportunity on a silver platter-
FRAUD CITES Caselaw to use in court, support your case, exercise your rights From: Marcel Bendshadler KC7AQK@worldnet.att.net
Marbury v. Madison, 5 US 137 “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.”
Murdock v. Penn., 319 US 105 “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”
Shuttlesworth v. Birmingham, 373 US 262 “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”
U.S. v. Bishop, 412 US 346 If you have relied on prior decisions of the supreme Court, you have the perfect defense for willfulness.
Owen v. Independence, 100 S.C.T. 1398, 445 US 622 “Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.”
Scheuer v. Rhodes, 416 U.S. 232, 1974 Expounds upon Owen
Byers v. U.S., 273 U.S. 28 Unlawful search and seizure. Your rights must be interpreted in favor of the citizen.
Boyd v. U.S., 116 U.S. 616 “The court is to protect against any encroachment of Constitutionally secured liberties.”
Miranda v. Arizona, 384 U.S. 436 “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”
Norton v. Shelby County, 118 U.S. 425 “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
Miller v. U.S., 230 F.2d. 486, 489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”
Brady v. U.S., 397 U.S. 742, 748 “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”
“If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being a gift of ALMIGHTY GOD, it is not in the power of man to alienate this gift and voluntarily become a slave.” —Samuel Adams, 1772
United States v. Sandford, Fed. Case No.16, 221 (C.Ct.D.C. 1806) “In the early days of our Republic, ‘prosecutor’ was simply anyone who voluntarily went before the grand Jury with a complaint.”
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”
United States v Dougherty, 473 F 2d 1113, 1122.
The court states, “...Judge Miller, joined by Judges Prettyman, Danaher And Bastian, stated that the pro se right is statutory only, and therefore (a) defendant must assert the right in order to be entitled to it and (b) in any event no reversal was required since no prejudice could be discerned” “The Government says the pro se right is statutory and subject to ‘extensive qualifications,’discerning in the decisions seven ‘factors’ on the basis of which the pro se right may be partially or entirely denied.”
“A bill of attainder is defined to be ‘a legislative Act which inflects punishment without judicial trial’” “...where the legislative body exercises the office of judge, and assumes judicial magistracy, and pronounces on the guilt of a party without any of the forms or safeguards of a trial, and fixes the punishment.” In re De Giacomo, (1874) 12 Blatchf. (U.S.) 391, 7 Fed. Cas No. 3,747, citing Cummings v. Missouri, (1866) 4 Wall, (U.S.) 323.
US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”
Mattox v. U.S., 156 US 237, 243. “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”
S. Carolina v. U.S., 199 U.S. 437, 448 (1905). “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”
United States v. Cruikshank, 92 U.S. 542 (1876). “The people of the United States resident within any State are subject to two governments: one State, and the other National, but there need be no conflict between the two.”
Grosjean v. American Press Co., 56 S.Ct. 444, 446, 297 U.S. 233, 80 LEd 660 “Freedom in enjoyment and use of all of one’s powers, faculties and property.”
ARGERSINGER v. HAMLIN, 407 U.S. 25 (1972) “The right of an indigent defendant in a criminal trial to the assistance of counsel, which is guaranteed by the Sixth Amendment… is not governed by the classification of the offense or by whether or not a jury trial is required. No accused may be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel.”
U.S. v. Prudden, 424 F.2d. 1021; U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct... If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.
Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth.
In regard to courts of record: “If the court is not in the exercise of its general jurisdiction, but of some special statutory jurisdiction, it is as to such proceeding an inferior court, and not aided by presumption in favor of jurisdiction.” 1 Smith's Leading Cases, 816
In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.” Norman v. Zieber, 3 Or at 202-03
It is interesting to note the repeated references to fraud in the above quotes. Therefore the meaning of fraud should be noted:
Fraud. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact… which deceives and is intended to deceive another so that he shall act upon it to his legal injury. … It consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him injury… (Emphasis added) –Black’s Law Dictionary Fifth Edition, page 594.
Then take into account the case of McNally v. U.S., 483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307 Fraud in its elementary common law sense of deceit… includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public,… and if he deliberately conceals material information from them he is guilty of fraud.
POINTS OF LAW Which support and in turn are supported by the Constitution of the United States of America.
1. "Where the meaning of the Constitution is clear and unambiguous, there can be no resort to construction to attribute to the founders a purpose or intent not manifest in its letter." Norris v. Baltimore, 172, MD 667; 192 A 531.0.
2. "It cannot be assumed that the framers of the Constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the Constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the Sovereign power." Cooke v. Iverson, 122, N.W. 251.
3. "All laws which are repugnant to the Constitution are null and void." Marbury v. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)
4. "The Constitution is superior to any ordinary act of the legislature; the Constitution and not such ordinary act, must govern the case to which they both apply." Marbury v. Madison, 5 US 137, 176 (U.S.Supreme Ct)
5. "The Bill of Rights was provided as a BARRIER, to protect, the individual against the arbitrary extractions of the majorities, executives, legislatures, courts, sheriffs, and prosecutors, and it is the primary distinction between democratic and totalitarian processes." STANDLER - Supreme Court of Florida en banc, 36 so 2d 443, 445(1948)
6. "Government may not prohibit or control the conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms." Smith v. U.S. 502 F 2d 512 CA Tex(1974)
7. "It is a duty as much as a right for all citizens to jealously and zealously protect their Fourth Amendment rights." U.S. Supreme Court, appeal of Chimel v. Calif. 89 S Ct 2034
8. "Where rights secured by the Constitution are involved, there can be no rule in making or legislation which would abrogate them." Miranda v. Arizona, (U.S. Supreme Ct) 380 US 436(1966)
9. "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights." Sherar v. Cullen, 481 F 2d 946(1973)
10. "We find it intolerable that one Constitutional right should have to be surrendered in order to assert another." Simmons v. U. S., 390, US 389(1968)
11. "The claim and exercise of a Constitutional right cannot be converted to a crime." Miller v.U. S., 230 F 486 at 489
12. "When Constitutional rights have been violated, remedies for violations are not dependant upon fictionalized distinctions." Kelly v. U. S., 379 F Sup 532
13. Ed 1165: "In determining whether...rights were denied, we are governed by the substance of things and not by mere form;" ID., Louisville & N.R. Co. v. Schmidt, 177 US 230, 20 Sup., Ct., 620 44 L Ed 747
14. "One need not be a criminal to claim Fifth Amendment (right), it applies to civil suits as well." Isaacs v. U.S., 256 F 2d 654.
15. "Fifth Amendment (right) is available to outside of criminal court proceedings and serves to protect persons in all settings..." Miranda v. Arizona, (U.S. Supreme Ct.) 380 US 436(1966)
16. "Civil contempts are sometimes civil in name only, entailing what are in reality criminal punishments." Wyman v. Uphaus, 360 US 72(1959)
17. "To penalize the failure to give a statement which is self incriminatory is beyond the power of Congress." U.S. v. Lombarde, 228 F. 980
18. "All acts of legislature...contrary to natural right and justice are void." Robin v. Hardaway, 1 Jefferson 109(1772)
19. "law of the land...renders judgment only after trial." Dartmouth College v. Woodward 4 Wheet, US 518, 4 Ed 629(1814)
20. "due course of law...is synonymous with 'due process of law' or 'law of the land'''... Kansas Pac. Ry. Co. v. Dunmeyer, 19 Kan 542 (See also Davidson v. New Orelans, 96 US 97, 24, L Ed 616).
21. "Lack of counsel of choice can be conceivably even worse than no counsel at all, or of having to accept counsel beholden to one's adversary." Burgett v. Texas, 389 US 109
22. "A state or federal court which arbitrarily refuses to hear a party by counsel...civil or criminal, denies the party a hearing, and therefore denies him due process of law in a Constitutional sense." Reynolds, v. Cochran, 365 US 525, 51 Ed @d 754, 81 S Ct 723 in Am Jur P.979
23. "A plaintiff need not pursue his state remedies before instituting a 1983 action." Monroe v. Pape (or perhaps Pope), 365 US 167(1961)
24. "To maintain an action under (42 USC) 1983, it is not necessary to allege or prove that the defendants intended to deprive Plaintiff of his Constitutional rights or that they acted willfully, purposely, or in furtherance of a conspiracy... it is sufficient to establish that the deprivation... was the natural consequences of Defendants acting under the color of law..." Ethridge v Rhodos, DC Ohio 268 F Sup 83(1967), Whirl v. Kern, CA 5 Texas 407 F 2d 781 (1968) Ury v. Santee, DC Ill,(1969)
25. "In a 42-1983 action, the allegations of the Complaint and the inferences to be drawn therefrom, upon a motion to dismiss, must be taken most favorably to the Plaintiff." Nanez v. Ritger, DC Wis. 304 F Sup 354(1969)
26. "When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it." State v. Sutton, 63 Minn. 147 65 NW 262 30 LRA 630 AM ST 459
27. "Disobedience or evasion of a Constitutional mandate may not be tolerated, even though such disobedience may...promote in some respects the best interests of the public." Slote v. Bd. of Examiners, 274 N.Y. 367; 2 NE 2d 12; 112 ALR 660. (See also Watson v. Memphis, 375 US 526; 10 L Ed 529; 83 S Ct 1314.)
28. "It is the duty of the courts to be watchful for the CONSTITUTIONAL RIGHTS of the citizen, against any stealthy encroachments thereon." Boyd v. U.S., 116 US 616, 635, (1885)
29. "The judicial branch has only one duty - to lay the Article of the Constitution which is involved beside the statute which is challenged and to decide whether the latter squares with the former...the only power it (the Court) has...is the power of judgment." U.S. v. Butler, 297 US(1936)
30. "A claim under the civil rights act expressly gives the District Court Jurisdiction, no matter how imperfectly the claim is stated." Harmon v. Superior Ct of the State of California, 307 F 2d 796, CA 9(1962)
31. "A court is without power to render a judgment it lacks jurisdiction of the parties or of the subject matter...In such cases, the judgment is void, has no authority and may be impeached." O'Leary v. Waterbury Title Co., 117 Conn 39, 43, 166 A. 673
32. "Courts, (must) indulge every reasonable presumption against waiver of fundamental constitutional rights, and...not presume acquiescence in the loss of fundamental rights." Dimmock v. Scalded, 293 US 474(1935) 304 US at 464
33. "A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may prove to be and inartistically as the complaint may be drawn. This is particularly true where the Plaintiff is not represented by counsel." Brooks v. Pennsylvania R. Co., 91 F Sup 101 DC SD NY(1950)
34. "a motion to dismiss is not to be granted unless it appears beyond doubt that the plaintiff can prove no set of acts which would entitle him to relief." "Haines v. Keener, 404 US 519, 30 L Ed 2d 652, 92 S CT 594(1972)
35. "Decency, security, and liberty alike demand that government officials shall be subjected to the same ruses of conduct that are commands to the citizen." Olmstead v. U.S., 277 US 438 485; 48 S CT L ED 944(1928)
36. "Judges may be punished criminally for willful deprivation of...rights on the strength of 18 usc 242." Imbler v. Pachtman, US 47 L Ed 2d 128, 96 S Ct 37. "Judges have no immunity from prosecution for their judicial acts." Bradley v. Fisher, US 13 Wall 335(1871)
38. "Government immunity violates the common law maxim that everyone shall have remedy for an injury done to his person or property." Fireman's Ins. Co. of Newark, N.J. v. Washburn County, 2 Wis 2d 214, 85 N.W. 2d 840(1957)
39. "Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution, which caution and care is owed by the government to its people." Rabon v. Rowen Memorial Hosp., Inc., 269 NS 1, 13, 152 SE 1d 485, 493(1967) 40. "Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under 'color of law'." Stringer v. Dilger, CA 10 Colo 313 F 2d 536(1963)
41. "A judge is not immune from criminal sanctions under the civil rights act." Ex Parte Virginia, 100 US 339(1879), (54 US v. Moylon 417 F 2d 1002, 1006(1969))
42. "the language and purpose of the civil rights acts, are inconsistent with the application of common law notions of official immunity..." Jacobsen v. Henne, CA 2 NY 335 F 2d 129, 133 (1966). (See also Anderson v. Nosser, CA 5 Miss 428 F 2d 183 (1971))
43. "Governmental immunity is not a defense under (42 USC 1983) making liable every person who under color of state law deprives another person of his civil rights." Westberry v. Fisher, DC Me. 309 F Sup 95(1970)
44. "Judicial immunity is no defense to a judge acting in the clear absence of jurisdiction." Bradley v. Fisher, US 13 Wall 335 (1871)
45. "When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true." Fisher v. Pace, 336 US 155 at 167
46. "the jury...acts not only as a safeguard against judicial excesses, but also as a barrier to legislative and executive oppression. The Supreme Court... recognizes that the jury...is designed to protect Defendants against oppressive governmental practices." United States ex rel Toth v. Quarles, 350 US 11, 16 (1955)
47. The Jury has "an unreviewable and irreversible power...to acquit in disregard of the instructions of the law given by the trial judge." U.S. v. Dougherty, 473 F 2d 1113, 1139 (1972)
48. "The common law right of the jury to determine the law as well as the facts remains unimpaired." State v. Croteau, 23 Vt 14, 54 AM DEC 90 (1849)
50. "A conviction obtained where the accused was denied counsel is treated as void for all purposes." Burgett v. Texas, 389, US 109 (1967)
51. "A conviction under an unconstitutional law is...illegal and void and cannot be a legal cause of imprisonment; the courts must liberate a person imprisoned under it...one imprisoned...may be discharged by the writ of 'Habeas Corpus'." (16 Am Jur Sec 150)
52. "Our system of taxation is based on voluntary assessment and payment, not upon distraint." 362 US S 145, 176, 80 S Ct 630, 647 4 L Ed 623 (1960)
53. "To lay with one hand the power of government on the property of the citizen, and with the other to bestow it on favored individuals...is none the less robbery because it was done under the forms of law and is called taxation." Miller 20 Wall 655, 663, 664 (1874)
54. K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990. “No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.”
***************************************************************** "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts...as in civil cases." Under Article IV, Section 2 of the United States Constitution the above law (which appears in the Constitution of Oregon and the constitutions of numerous other states) has the standing and force of Constitutional law in all states.
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