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Opening Brief - Arpaio collateral litigation

Opening Brief - Arpaio collateral litigation

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Published by: Sheriff_Joe_Arpaio on Oct 29, 2012
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10/31/2012

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Case: 12-17225

10/29/2012

ID: 8378934 In The

DktEntry: 27

Page: 1 of 3

United States Court of Appeals for the Ninth Circuit
SCOTT HUMINSKI, PLAINTIFF - APPELLANT, v. Docket No. 12-17225

MERCY GILBERT MEDICAL CENTER, DIGNITY HEALTH, ET AL., DEFENDANTS – APPELLEES

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OPENING BRIEF
Initially, Appellant notes this proposed brief is lodged notwithstanding the pending motion to appoint counsel (staying this matter under local Rule 27-11 (a)(6)). This matter is before this Court for review of denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1) seeking to enjoin further First Amendment retaliatory violence and vexatious litigation targeting Scott Huminski. This case sets forth a policy and governmental retaliation (via private corporations) against protected speech requiring a strict scrutiny de novo review identical to Huminski’s collateral case pending in this Court, Huminski v. City of Surpise, 12-16395. See Berger v. City of Seattle, 569 F.3d 1029, 1050 (9th Cir. 2009) (en banc). All fact and law proffered by the Plaintiff/Appellant, Scott Huminski (“Huminski”), in the Court below stand undisputed and unchallenged on the record because the trial Court, in the order on appeal, argued on behalf of the defendants and simultaneously ruled on the preliminary injunctions; (1) prior to response by the defendants, (2) without allowing a reply by Scott Huminski and (3) without consideration of the legal standard/test concerning injunctive relief. Huminski also sought and was denied, in the order on appeal, an injunction forbidding frivolous and vexatious filings in the case such as the Motion to Dismiss filed

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Case: 12-17225

10/29/2012

ID: 8378934

DktEntry: 27

Page: 2 of 3

by the defendants fervently arguing that federal question jurisdiction cases also required complete diversity of the parties. This denial is also appealed. The motion for preliminary injunction(s) was filed on September 21. 2012 and the order denying the motion was issued six days later on September 27, 2012 without allowing the Defendants time set forth in the Federal Rules to respond and without allowing Huminski an opportunity to reply to the argument proffered by the trial Court on behalf of the defendants. Huminski relies on his case that was heard by the full Vermont Supreme Court (and authority cited therein) that condemned sua sponte arguments proffered by trial courts in rulings without giving the parties notice. Huminski v. Lavoie, 173 Vt. 517, (Vt. Supr. Ct. 2001, No. 99-330). The trial Court’s conduct in the instant matter exceeds the conduct condemned by the Vermont Supreme Court as the parties were, at least, allowed to participate in the motion pleading cycle in the Vermont case. Here, the District Court issued a sua sponte order and argument without allowing a response and a reply, eviscerating and short-circuiting the federal Rules and Due Process. Huminski’s injunctive requests easily satisfy the legal standard for preliminary injunctions, law which was not considered by the trial court. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (discussing 4 element test) Enjoining further violence and vexatious filings are patently per se worthy of injunctive relief and require no further argument here. WHEREFORE, the order of the trial court should be reversed and remanded with instructions to grant the preliminary injunctions forbidding further violence against Huminski and vexatious court filings.

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Case: 12-17225

10/29/2012

ID: 8378934

DktEntry: 27

Page: 3 of 3

Dated at Estero, Florida this 29th day of October, 2012. /s/ Scott Huminski __________________________________ Scott Huminski P.O. Box 10224 Naples, FL 34101 CERTIFICATE OF SERVICE I hereby certify that on this 29th day of October 2012, copies of this paper were served upon parties of record. /s/ Scott Huminski ___________________________ Scott Huminski

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