] UNITED STATES DISTRICT COURT 4 MIDDLE DISTRICT OF TENESSEE FI L & D 3 Luis A. del Mazo, Jr., pro se , ) 2OIGHAR 23. PM 2:37 4 ) U.S. DISTRICT COURT Plaintitf } MIBBLE'DISTRIoT OF Tw v. q ) No. 3:16-0218 MT. JULIET POLICE DEPARTMENT, —)_Judge Trauget/Brown qletal., ) Jury Demand Defendants y d 4 3 1 a 11|| 10: THE HONORABLE ALETHA A. TRAUGER 1] gEpLy 70 MOTIONS TO DISMISS AND MOTION TO DENY ALL MOTIONS TO DISMISS 14) 1 1d) Plsiatitt moves for dismissal of ALL Defendants motions to dismiss for the following reasons: 1q| 1) Doctrine of abstention isnot applicable in these proceedings 1g] 2. There is no personal Immunity, when operating out of Jurisdiction 19] 3.) The eleventh amendment do not apply to these proceedings. 20 4.) Plaintiffs entitled to declatory relief under Rule 65. 21 In support, Plaintiff relies on the contemporaneously filed Memorandum in Support and 24 x Exhbit A, Judicial Notice of Default. 24 2 Respect mitted, 26 7 Luis A. del Mazo, Jr. 2 615-543-6587 PO BOX 160891 Nashville, TN 37216 Luis.delmazo@yahoo.com 8bas been served on: (Name) (Address) (Address) (Name) (Address) (Address) (ame) (Address) (Adasess) (Name) (Address) (Aderess) (ame) (Address) (Address) (ame) (Address) (Adaress) (Name) (Address) (Adéress) (Nae) (Address) (Address) (Name) (Address) (Address) BAD way ac OV ED Wer Core Wo Bx ZOLOY dann 20D - O25) Ml. Tek Bice Bot» elie BAS oo 5 at ahny (OF cna : r we es Ss aie a Wz 5 DV Swe) Yeo cWllimns a E iz Siguomre] UNITED STATES DISTRICT COURT. FILED 4 MIDDLE DISTRICT OF TENESSEE “Luis A. del Mazo, Jr, pro se, TIGNES EE BT U.S, DISTRICT COUR 8. Di 1, MIDDLE DISTRICT OF TH Plaintiff y. No, 3:16-0218 Judge Trauger/Brown Jury Demand MT. JULIET POLICE DEPARTMENT, etal, Defendants 11] TO: THE HONORABLE ALETHA A. TRAUGER 1 MEMORANDUM OF LAW IN SUPPORT OF DENYING MOTIONS TO DISMISS Plaintiff Luis A. del Mazo, Jr., Submits the following memorandum of law in support of denying defendants motion to dismiss. VERIFIED FACTS 17]] On Magch 15, 2015, Plaintiff was pulled over for an alleged muffler violation with no evidence 18 presented and unlawfully arrested per Tenn. Code Ann. § 40-7-118. ! Plaintiff filed a demurrer and 14) counterclaim challenging Jurisdiction of Defendants actions.? Defendants failed to respond and state a claim for which relief could be granted and how they were injured by plaintiffs use of public 2] highway.’ Plaintiff notified All parties of Statutory default dismissing Defendants complaint and 24 awarding Plaintiff 10,000.00 in actual costs and damages as a direct and proximate result of the 24] unlawful arrest. General Sessions Court Hearing was set for May 18, 2015.0n May 18" 2015, 29] Plaintiff under duress was threatened and coerced by Judge J. Barry to waive his rights by signing 241 Verte eompnnton the Record of Wikon County General Season court by hid pry wines 27]| {COURTS OF RECORD and COURTS NOT OF RECORD. The former bsing those wncse as and jut proceetngs ae ene, or ssorded fora perptil mem end tetimony and whith have pow to fine or imps for cote: They gene posses ec, Conte tot sor are those of inferior dignity, which have no power o incr imprison, and in which he proceedings a au emo rcs. 9B Comey 28) 24:3 Str Comm, 383, The Thomas Fcher,C Ca, 24F 481; Fu pane Tsao, $2 Cal 235; Erwin US DCOa, 97 aoe 3 LRA eo, Hemingr. Devi, 9 Ono St 508,17 NE 30,231 ° sthe right of the citizen to travel pon the polis highways and to tmnsport his property thereon, ether by caiage or by autonebil, snot a mere privilege which a city may prohibit or permit a wil, but common right Which he has under the right ‘olf liber, andthe pursit of happnss."- Tompson v Smith, 158 SE.579, 1‘warrant moving alleged complaint to criminal indictment hearing set for August 10, 2015, violating Plaintiffs right to withhold consent Schneckloth vy. Bustamonte, 412 U.S. 218 (1973). * For this Reason Plaintiff Amends his complaint to include Judge J. Barry as a Defendant for Violating Plaintiffs rights, Both judges were presented with a Judicial Notice (Exhibit A) and the fact of the statutory default and Defendants subject to 18 USC §1512b for violating and obstructing Plaintifis sixth and fourteenth amendment rights. During the hearing on August 10, 2015 (as admitted by Defendants) no evidence was presented, no witnesses or victim were present. * Plaintiff argued the facts of the unarrestable offense to Judge John Wootten. Judge John Wootten, in order to thoroughly examine all the facts of the demurrer and counterclaim, continued hearing to October 5, 2015. On October 5, 2015 Plaintiff again asked Defendant Judge John Wootten about Plaintiffs right to confront his accuser and again no victim or witnesses (police) were present. “For a crime to exist, there must be an injured party. There can ‘be no sanction or penalty imposed upon one because of this exercise of Constitutional rights."- Sherar_v. Cullen, 481 F. 945, Defendant Judge John Wootten now acting as prosecutor and prosecuting from the bench could not tell Plaintiff how the Defendants were injured by Plaintiffs use of the Public Highway or any of the other frivolous allegations .° Plaintiff brings monetary claims Pursuant fo 42 U.S.C. 1983, and seeking injunctive relief from potential irreparable harm being caused by Defendants continued reckless behavior proof being the continuance in violation of Sixth Amendment rights scheduled for April 5, 2016 and Aril 19, 2016. 7 Poindexter v. Greenhow, 114 US. 270, 303 (1885). Brady’ v. US, 397 US. 742, 748, (1970) "Waivers of Constitutional Rights, ‘not only must they be voluntary, they must be knowingly intelligent acts done wit sufficient awareness.” CRUDEN vs. NEALE, 2 N.C. 338 2 SE. 70 "Corpus delcti consis ofa showing of 1) the occurence ofthe specifi kind of injury and 2) someone’ criminal act asthe cause ofthe injury Johnton v, Sate, "Johnson v. State, 653 NE24 478, 479 (nd. 1998). “State must produce corroborating evidence of “corpus desi,” showing ta ijt ce harm ‘onsitting crime occured and that injury or harm was cased by someone's eminal stv" 742 USCA. See. 1983" Trezevant v. Chy of Tampa (1984) 741 F.2d 336, hn. "Evidence tht motorist cite for tfc volition was incarcernted fr 23 mines during booking proces, even tough he had never boca nested ada ll mos had sficon cach Ga nd to poet Bond ending cout disposition of citation, was suficent to uppor ning thet municipality employing officer who itd mors ar count boat ‘criminal justice, which operated fecllty in which motos was incarcerated, bad unconstusonaly deprived motorist of his right ib, 2| 1, 14 14 7 2il 27 24 27 ARGUMENT The Doctrine of abstention recognizes that, in some circumstances, state court defendants should not be subjected to a criminal trial, the YoungerCourt established some exceptions to its broad policy of nonintervention. When state court criminal prosecutions are brought in bad faith or for the purpose of harassment (such as repeated prosecutions without any hope of ultimately securing a conviction), federal equitable principles justify intervention./5/ The Court explained that there might also be “extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment."/6/ The Court in Younger further noted the possibility of exception in cases involving “a statute [that] might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it."/2/ ‘The Plaintiff has already argued his facts and tried to remedy on the state level and was told by Defendants Wilson County Sheriff's office court of the clerk “We don’t do that here!” Plaintiff was again told by Defendant John Wooten and J. Barry “We don’t do that here!” is unclear as to what the Wilson County courts “don’t do here”, however what is Plainti clear and factual is that they do not uphold constitutional rights or provide equal protection of the law as required by laws and corporate charters. The Record established by Plaintiff and Common law default speak for itself and are proof of a systematic deprivation of constitutional rights. . Defendants agree that there are exceptions to Judicial Immunity. (1) when the judge is not performing a judicial function and (2) when the Judge acts in complete absence of all Jurisdiction. Scheuer v, Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 1687 (1974) by law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his, person). When a judge acts as a trespasser of the law, when a judge does not follow the law, 3y the Judge loses subject-matter jurisdiction and the judges' orders are not voidable, but 3 VOID, and of no legal force or effect. The U.S. Supreme Court stated that "when a state ‘| officer acts under a state law in a manner violative of the Federal Constitution, he comes { into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of 7 his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." 4 ‘There are seven elements of jurisdiction and every element MUST be met in order for the ' court to proceed. Jurisdiction, once challenged, is to be proven, not by the court, but by the ‘ party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the a asserter. The court is only to rule on the sufficiency of the proof tendered. See, “McNutt v. 14 General Motors Acceptance Corp, 298 U.S. 178 (1936). The origins of this doctrine of law 15) ‘may be found in “MAXFIELD v. LEVY, 4 U.S. 330 (1797), 4 U.S. 330 Dall.) 2 Dall. 381 2 ‘ U.S. 381 1 L.Ed, 424, 1 ‘The unverified complaint with no evidence presented does not or did not establish any jurisdiction. “With no injured party, a complaint is invalid on its face” Gibson v. Boyle, 139 4 2 Ariz. 512, 21|| 3. The Eleventh Amendment is Subject to four major exceptions that have been recognized by 22 the Supreme court. First, the Eleventh Amendment does not apply to lawsuits brought 23) against a state's political subdivisions. Accordingly, counties, cities, and municipalities may 2] be sued in federal court without regard to the strictures of the Eleventh Amendment. In this i case Plaintiff has brought suit against Wilson County Courts and Sheriffs Department along with Mt. Juliet Police Department and its individual employees acting out of jurisdiction. 8 - Fisher, 292 P 813, a 819 [1930] ofcer may be held ile in daonages to any person injured in consequence of reach of ay of the dates connected with his offce..The lib for nnfeasance, misfeasance, and for malfeasance ia fice isin his individu , not his oficial capaci.” 4u| 1 il 24 23) 24) 25 | The final exception to the Eleventh Amendment permits citizens of any state to seek an Injunction against state officials infederal court to "end a continuing violation of federal law " (Green v. Mansour, 474 US. 64, 106 8. Ct. 423, 88 L. Ed. 2d 371[1985]; Ex parte Young, 209 U.S. 123, 28 8. Ct. 441, 52 L. Ed. 714 [1908]). since Ex parte Young, 209 U.S. 123 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law. Ex parte Young teaches that, when a state officer acts under a state law in a ‘manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Discrimination claims under the CIVIL RIGHTS ACT of 1871 (42 U.S.C.A. § 1983) present federal questions and confer upon federal courts the Subject Matter Jurisdiction to resolve them, Plaintiff is a victim of Disparate Impact being performed by Mt. Juliet Police Department and Wilson County Sheriff's Department. Plaintiff has Proven with Exhibits attached in Original complaint that Plaintiff has been deprived of rights, privileges and immunities as secured by the constitutions by Defendants in their individual capacities acting as a whole. U.S. v. Throckmorton, 98 US 61 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and swom to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead 5ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America, See: Title 42 U.S.C. Sec. 1983. "When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity." The Defendants have failed to establish jurisdiction and in the process have violated and continue to violate Constitutional, Federal and State laws, Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. Failure to commence trial within the Article V1 “speedy trial period” results in dismissal of all charges. In federal courts, the Speedy Trial Act of 1974. 18 U. S. C. §3161 et seq., provides that in "any case in which a - shall commence within seventy days" from the later plea of not guilty is entered, the tri of (I) the "filing date” of the information or indictment or (2) the defendant's initial appearance before a judicial officer. U.S. v. Tinklenberg, 131 S.Ct. 2007 (2011). Defendants are barred by the doctrine of Estoppel by laches to keep perusing their complaint, wherefore Plaintiff Moves the court for declatory injunctive Relief under Fed.R.Civ.P. 65 to keep Defendants from continuing their reckless behavior of further Harassing and maliciously prosecuting Plaintiff. CONCLUSION An ancient maxim of law states simply, "A judge who rules without first hearing both sides, ‘though his judgment may be just, is not himself just." Justice implies this essential right to be heard. "The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice."- Davis v. Wechsler, 263 U.S. 22, 24. Plaintiff Moves the court to continuese ost Se all 2 aq 24 27 to discovery, dismiss ALL of Defendants motions to dismiss and request the opportunity of the right to be heard, due process, and equal protection of the law. ocaas Luis A. del Mazo, Jr. 615-543-6587 PO BOX 160891 Nashville, TN 37216 Luis.delmazo@yahoo.com Certificate of Service I Luis A. del Mazo, Jr. certify that on March 24, 2016 an exact copy of this pleading was filed and notice sent to the following recipients: Heather C. Ross Officer of the Attomey General PO BOX 20207 Nashville, TN 37202-0207 Mt. Juliet Police Department Mathew Mang Kriss Eliott 1019 Charlie Daniels Parkway Mt. Juliet, TN 37122 O'Neil Parker & Williamson, PLLC Craig Strand Jeffery R. Thompson 7610 Gleason Dr., Suite Knoxville, TN 379 Luis A. del Mazo, Ir 615-543-6587 PO BOX 160891 Nashville, TN 37216 Luis.delmazo@yahoo.comEyhat ft WILSON COUNTY GENERAL SESSION co) 7. FILED Luis A. del Mazo, Jr. pro se, ) NN APR 23 205 PR =n ; sao STATE OF TENNESSEE and/or ) CITY OF ‘MOUNT. JULIET, ) Case #2015CR1i08 MOUNT JULIET POLICE, j DEPARTMENT, j MATHEW MANG, ) KRIS ELLIOTT ) Defendants ) d JUDICIAL NOTICE OF Sra TUTORY DEFAULT RULE 201 AND 55(a)(b) ‘fudge by whom itis issued: and an attempt 10 enforce it “Ableman v. Booth, 21 Howard Mimits of the jurisdiction of the court or, beyond these boundaries is ‘nothing less than lavless violence. 506 (1859),(633 F.2d 844, cert den. Zeller y, Rankin, vores hea ont mle tate pn vy Protection of the law,