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MELINDA HAAG (SBN 132612) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division Victoria R. Carradero (SBN 217885) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7181 Facsimile: (415) 436-6748 Email: Attorneys for the United States of America

8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 WANXIA LIAO, 13 Plaintiff, 14 v. 15 UNITED STATES OF AMERICA, et al., 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-11-2494 JSW UNITED STATES OF AMERICA’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FED. R. CIV. P. 12(b)(1)(2)(4)(5)(6) Date: April 6, 2012 Time: 9:00 a.m. Location: Courtroom 11, 19th Floor Judge: Honorable Jeffrey S. White

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LEGAL ARGUMENT A. As Plaintiff Refuses To Effect Service, Her Complaint Should Be Dismissed

Plaintiff contends that Rule 4's service requirements do not apply and that the Hague convention controls. Opp., Sec. IV. This contention is incorrect and her citation to Brockmeyer v. May, 383 F3d 798 (9th Cir. 2004) does not support her proposition.1 Opp., ¶ 22. Plaintiff does not cite to any case to support the Hague Convention’s replacement of Rule 4's service requirements for defendants within a judicial district of the United States. Further, as Rule 4 makes clear, there are specific rules for service on the United States, and its Agencies, Corporations, Officers and Employees, admittedly none of which Plaintiff followed, and for which no exception is made for the Hague Convention. Fed. R. Civ. Proc. 4(i); see also 1993 amendments to Rule 4(i). Plaintiff’s contention that she need not serve the FAC allegedly because all federal defendants have appeared before the Court through the undersigned also fails. Opp ¶ 25. Plaintiff would know this had she attended the Case Management Conference. Plaintiff next claims that she properly served the U.S. Attorney’s office because she “served on Joseph Russioniello who had just ceased to be U.S. Attorney for California when [she] made the service” and the office’s receipt of the complaint is sufficient “whether the mail was addressed to Joseph Russioniello or Haag matters nothing.” Opp ¶ 26. Plaintiff is incorrect. Plaintiff named Mr. Russioniello as a defendant in his official and personal capacities

In Brockmeyer, the plaintiffs attempted to serve process on an English defendant by using ordinary first class mail to send a summons and complaint from the United States to England. 383 F.3d at 799. The Ninth Circuit concluded that while the Hague Convention does not prohibit service of process by international mail, “in order for it to be effective in federal court, it must also be affirmatively authorized by some provision in federal law.” Id. The Ninth Circuit confirmed the obvious - that Rule 4 governs service of process in federal court - and concluded that plaintiffs’ attempted service failed because they failed to follow the requirements of Rule 4(f) (serving an individual in a foreign country). Id. Rule 4(f), however, does not even apply here because the federal defendants whom Plaintiff is required to serve reside in a judicial district of the United States, where as Rule 4(f) is for service of process on an individual “at a place not within any judicial district of the United States.” Fed. R. Civ. Proc. 4(f); see also 1993 Amendments to Rule 4 (confirming Rule 4(f) pertains to service on parties outside of the United States).



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(Complaint ¶¶4, 15, 124). Thus, she was required to effect personal service on him, which she did not do, and serve the United States. Fed. R. Civ. Proc. 4(1)(3). Further, Rule 4(i)(1)(A)(i) and (ii) is clear about service on the U.S. Attorney, which Plaintiff also failed to comply with. Additionally, Plaintiff did not attempt service until October 2011. By that time, Mr. Russioniello had not “just ceased” being the U.S. Attorney; he had not held that office for nearly a-year-and-ahalf. Even as of the time that Plaintiff filed the original complaint in May 2011 - he had not been the U.S. Attorney for nearly a year. Accordingly, as Plaintiff has not served the U.S. Attorney, she has failed to effect service on all federal defendants. As to the new defendants, (the undersigned, Judge Alsup, the Department of State), Plaintiff’s claim that she is “still within the time to serve and when to serve is entirely [her] procedural right that shall not be interfered by anyone,” also fails. Opp., ¶ 25. Plaintiff filed her original Complaint on May 23, 2011, but did not attempt defective service until October 2011, after expiration of the 120 day period set forth in Rule 4(m). Plaintiff then filed the FAC on November 19, 2011, and again, failed to serve it within the 120 day time period. To salvage her FAC from the required dismissal, Plaintiff claims that “actual receipt of the service of process is not required” citing Lidas, Inc., v. U.S. 238 F.3d 1076 (2001). Rule 4 makes no such exception. Further, Lidas is inapposite as it does not interpret Rule 4. Id., at 1082. In order for Plaintiff to avoid dismissal for failure to effect service within the time period set forth in Rule 4, she must demonstrate good cause.2 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (upholding dismissal of pro se complaint for failure to timely serve as required by Rule 4). This Circuit has held that good cause, at a minimum, means excusable neglect must be demonstrated. Id. Where a plaintiff fails to demonstrate good cause, the Court must dismiss the action without prejudice against that defendant or order that service be made within a specified time. See Fed. R. Civ. P. 4(m) (emphasis added); see also Efaw v. Williams, 473 F.3d 1038,

In addition, a plaintiff “may also be required to show the following: (a) the party required to be served receive actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette, 923 F.3d at 756. Plaintiff cannot meet these additional requirements. See Docket No. 63 (no signature for Douglas, Dwyer, Holder, Phillips, Russionello, etc.). Nor has she demonstrated that she will be “severely prejudiced” if her complaint is dismissed. 2


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1040 (9th Cir. 2007). Plaintiff makes no attempt to demonstrate good cause. Rather, she stubbornly insists that neither Rule 4 nor this Court’s orders requiring her to effect service apply because they are “fraudulent” and part of a “meticulously planned plot.” Opp., ¶¶ 28, 30, 31. According to Plaintiff, issuance of the Orders was “interference” with her procedural rights because “under the rules, [she has] the freedom to serve anytime within the time period stipulated by rules.”3 Id. Such contentions fall well short of the “good cause” required to survive dismissal for failure to comply with Rule 4. Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (upholding dismissal of complaint for failure to serve within 120 day period; noting plaintiff failed to show he “was prevented from effecting service within the 120 day limit by factors beyond his control”). This Court has already ordered that service be made within a specified time and warned Plaintiff that if she did not, her action would be dismissed. Docket No. 56. Plaintiff refused to abide by the Court’s Order and the 120 day time limit has passed. B. Plaintiff Does Not Have “Constitutional” Rights And Cannot State A Claim.

In its opening brief, the government set forth the authority that Plaintiff, as a citizen and

15 resident of Canada, does not have constitutional rights.4 Plaintiff appears to contend that merely 16 by bringing suit in this country’s courts, she is now a beneficiary of this country’s constitution and 17 18 19 20 21 22 23 24 25 26 27 28 Such authorities included this Court’s order in Ibrahim v. Dep’t of Homeland Security, et al., 2009 U.S. Dist. LEXIS 64619 at *22-23 (N.D. Cal. July 27, 2009), which confirmed that, “[I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the judiciary power to act.” Id., quoting Johnson v. Eisentrager, 339 U.S. 763, 771 (1950). The Ninth Circuit recently issued an opinion reversing this order in Ibrahim v. Dep’t of Homeland Security, et. al., 2012 U.S. App. LEXIS 2457 (9th Cir. 2012). No mandate on that order has issued and the government was granted an extension until April 25, 2012 to file a petition for rehearing or rehearing en banc. As discussed infra, even under the Ninth Circuit’s opinion in Ibrahim, Plaintiff cannot be found to have constitutional rights. 3

Plaintiff also claims that Defendants were “bound to respond to [her] Complaint within the stipulated time” and cites to the USAs Administrative Motion seeking an order shortening time on the vexatious litigant motion and enlarging time for any federal defendant to respond to the complaint. Opp. ¶ 32. Plaintiff’s contention is misplaced. The USA submitted the Administrative Motion seeking an enlargement of time, “assuming that Plaintiff will have affected proper service.” See Docket No. 43 (emphasis added). As Plaintiff admittedly chose not to effect service during the pendency of the motions, as already recognized by the Court (Docket No. 56), the deadline to respond never began to run under Rule 12.


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other laws. Opp. ¶ 14. Indeed, Plaintiff claims that “once [she comes] within the jurisdiction of the courts, [she has] been ‘subject to the jurisdiction thereof” the United States, and become its citizen for 14th Amendment equal protection clause purposes.” Id. 5 The mere fact of filing a lawsuit does not make one a citizen or alien within the jurisdiction of the United States for purposes of extraterritorial application of the Constitution and other federal laws. If that were the case, anyone anywhere in the world - no matter how tenuous there connection to this country could become “a citizen for 14th Amendment equal protection purposes” (Opp. ¶ 14) simply by filing a lawsuit. Such a scenario would obliterate the body of authority regarding citizenship and entry into this country, as well as the body of constitutional law regarding aliens, as each would be

10 rendered unnecessary: such rights would be automatically conferred simply by the filing of 11 litigation. 12 Plaintiff seeks to turn Article III on its head by claiming that the court’s powers to hear a

13 matter grants her rights under the Constitution in the first instance. Other than her frivolous 14 lawsuits, Plaintiff has no connection with this country. She does not reside here and has not 15 stepped foot in this country6, even to prosecute her actions. Plaintiff’s rights - if any - are limited 16 to those set forth in the Federal Rules of Civil and Appellate procedure. To the extent that she 17 took issue with the rulings in her case, her rights were limited to appealing those rulings. In re 18 Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007). Rather than pursue such appeals, she chose to 19 abandon them. Carradero Decl., Ex. 39, 40. She now seeks to utilize the fact of her vexatious 20 litigation to claim that she has the right to sue various federal actors for purported “constitutional” 21 violations for actions taken in her district court actions, and for the government’s lack of criminal 22 investigation into said actions. Plaintiff has not cited one case - and the undersigned is not aware 23 of any - that supports such a far-fetched proposition. 24 25 26 27 28 This contradicts Plaintiff’s past filings asserting ad nauseum that the Court acted without jurisdiction with regard to her. Carradero Decl., Ex. 14-43. Plaintiff claims that at some point she was in this country and cites to a declaration. However, no declaration was submitted. Rather, Plaintiff submitted a brief opposing a motion to strike in one of her prior federal court actions. See Docket No. 85. The brief is not a declaration or in a form to constitute any kind of “evidence.” Civ. Local Rule 7-5. The brief also does not establish that Plaintiff has been in the U.S. territory at any time since at least 1997, if even then. 4
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Sections 1983 And 1985 Are Inapplicable To Federal Actors.

Plaintiff’s fourth, fifth, seventh, and eighth causes of action attempt to allege claims under 42 USC §§ 1983 and 1985 against the judges and court personnel, the AUSA, the USA, the Department of State, and the White House Media Director Phillips. FAC ¶¶ 130-131, 136, 137. The USA moved to dismiss these claims on the grounds that: (1) Plaintiff cannot demonstrate there has been a deprivation of a right secured by the Constitution and laws of the United States; and (2) that sections 1983 and 1985 require actions taken under color of state law. As to the first issue, Plaintiff claims that her filing of a lawsuit in district court grants her constitutional rights. Opp., ¶ 34. This argument fails for the reasons set forth above in section

10 I.B. This argument fails for the additional reason that - even assuming arguendo that Plaintiff has 11 constitutional rights - she has not sufficiently alleged a deprivation of a constitutional right. There 12 is no constitutional right to file frivolous lawsuits; there is no constitutional right to invoke 13 taxpayer resources of the FBI and demand investigation of allegations; and there is no 14 constitutional right for a non-resident alien to enter this country. 15 As to the second issue, Plaintiff fails to allege any sufficiently close nexus between the

16 State and the challenged actions of the federal defendants to transform the actions of the federal 17 defendants into that of the State itself. Indeed, the only alleged “state” defendant is Deputy 18 Attorney General of California Kay Yu, whom this Court found to be immune from suit. 19 Carradero Decl., Ex. 38. As to Yu, Plaintiff appears to contend that in her prior federal court 20 action, 08-2776, Yu allegedly falsified a court record by filing a declination to proceed before a 21 magistrate judge on behalf of former U.S. Attorney General John Ashcroft; it was corrected on the 22 ECF docket to reflect the proper party, Yu; the correction was an alleged conspiracy between 23 Judge Armstrong, Judge Hamilton and “jlm,” to mislead Plaintiff into not serving him, resulting 24 in dismissal of her Complaint. FAC, ¶¶ 37-71. Plaintiff contends that by conclusorily alleging 25 that federal defendants “conspired” with “federal officials, Yu, and media Defendants” to deprive 26 her rights she has sufficiently pled a claim under section 1983 and 1985. Opp. ¶ 35-36. The 27 authorities compel the opposite conclusion.7 Plaintiff’s allegations taken together and 28 Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997) (“Lest there be any continuing confusion, we take this opportunity to remind the Bar that by its very 5

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individually fall severely short of demonstrating “state action” by any of these individuals. Further, Plaintiff fails to allege any facts to demonstrate “state action” by any other federal defendant. See FAC; see also Carradero Decl., Ex. 35 ( prior Order explaining Plaintiff’s failure to allege sufficient 1983 and 1985 cause of action involving the media and government). Plaintiff’s allegations take issue with the acts taken by federal defendants in the performance of official duties under federal law. FAC ¶¶ 38-43, 44-49, 53, 56, 61-65, 71-75, 8497. Such allegations are insufficient. West v. Atkins, 487 U.S. 42, 49 (1988) (a defendant has acted under color of state law when he or she has “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law.’”);

10 Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (“Section 1983 attaches only to individuals 11 ‘who carry a badge of authority of a State and represent it in some capacity.’”) (citation omitted). 12 As both section 1983 and 1985 require that the alleged civil rights violation be taken under color 13 of state law, Olsen v. Idaho State Board of Medicine, 363 F.3d 916, 930 (9th Cir. 2004), and 14 Plaintiff has failed to plead such facts (and Rule 11 precludes her from being able to do so), her 15 fourth, fifth, seventh, and eighth causes of action should be dismissed with prejudice. 16 17 18 D. Plaintiff Cannot Overcome Immunity Of Federal Defendants 1. Sovereign Immunity Bars Plaintiff’s Action

Plaintiff’s second, third, seventh and tenth causes of actions: Plaintiff contends that these

19 claims are not barred by the doctrine of sovereign immunity because they are for “declaratory 20 21 22 23 24 25 26 27 28 terms, Section 1983 precludes liability in federal government actors.”); see also Lin v. Potter, 2001 U.S. Dist. LEXIS 9050 (N.D. Cal., January 22, 2011) (“Under section 1983, a plaintiff may sue state officials acting under color of state law for violating certain federal constitutional rights, but a plaintiff must sue federal officials acting under color of federal law under Bivens”). Morse was decided five years after Cabrera, cited by Plaintiff. That case does not help Plaintiff. In Cabrera v. Martin, 973 F.2d 735 (1992), the Ninth Circuit held that “[f]ederal officials do not become ‘state actors’ unless ‘the State has for insinuated itself into a position of interdependence with...[the federal officials] that it must be recognized as a joint participant in the challenged activity.’” Id., at 742 quoting Klteschka v. Driver, 411 F.2d 436 (1969) (“purpose of § 1983 was to provide a remedy when federal rights have been violated through the use or misuse of a power derived from a State”). The Ninth Circuit further noted that the “touchstone” is ultimately “whether there is a sufficiently close nexus between the State and the challenged action of the [federal actors] so that the action of the latter may be fairly treated as that of the State itself.” Id., quoting Jackson v. Metropolitan Edison Co., 419U.S. 345, 351 (1974). No such nexus is pled here. 6

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relief.” Opp., ¶ 38. However, 28 U.S.C. § 2201 does not provide for a waiver of sovereign immunity. Burns Ranches, Inc., v. U.S. Department of the Interior, et al., 2011 U.S. Dist. LEXIS 137239 at *5 (D. Ore., November 29, 2011). “The fact that a court may grant declaratory relief against any type of defendant in a case otherwise within the court’s jurisdiction does not imply, let alone expressly state, that the United States has waived its immunity for all declaratory relief claims.” Id., citing Cal Shock Trauma Air Rescue v. State Compensation Ins. Fund, 636 F.3d 538, 543 (9th Cir. 2011). Thus, the Declaratory Judgment Act “in no way modifies the district court’s jurisdiction.” Id. “The operation of the Declaratory Judgment Act is procedural only,” ‘which means it should not be considered a grant of jurisdiction (citation omitted) and cuts sharply

10 against treating it as a waiver of sovereign immunity.’” Burns Ranches, supra, citing Brownell v. 11 Ketcham Wire & Mfg., 211 F.2d 121, 128 (9th Cir. 1954) (“[T]he Declaratory Judgment 12 not a consent of the United States to be sued, and merely grants an additional remedy in cases 13 where jurisdiction already exists in court.”).8 Plaintiff impliedly recognizes this problem because 14 in response, she relies on the Administrative Procedures Act (“APA”). Opp., ¶¶ 38-39. However, 15 as discussed in section III. F1 and F2 of the USA’s opening brief at pp. 13-18, jurisdiction under 16 the APA does not lie for the numerous reasons stated therein. Plaintiff did not address these 17 arguments. The claims against the USA and its agencies should be dismissed on the grounds of 18 immunity as set forth in the moving papers. 19 Plaintiff’s remaining claims against the individual federal actors are also barred: Similarly,

20 as Plaintiff complains of conduct by the individual federal defendants done in their official 21 22 23 24 25 26 27 28 Further, sovereign immunity and subject matter jurisdiction are “distinct” concepts. U.S. v. Park Place Assocs., Ltd., 563 F.3d 907, 923 (9th Cir. 2009). “A waiver of sovereign immunity means the United States is amenable to suit in a court properly possessing jurisdiction; it does not guarantee a forum.” Id., “Conversely, the mere existence of a forum does not waive sovereign immunity.” Id., at 924. “A statute may create subject matter jurisdiction yet not waive sovereign immunity.” Id.; see also Jachetta v. U.S., 653 F.3d 898, 903 (9th Cir. 2011) (citing with approval the explanation in Park Place of “the relationship between sovereign immunity and subject matter jurisdiction.”) “For this reason, even assuming § 2201 granted jurisdiction (which it does not) it would not be accurate to jump there to a conclusion that § 2201 necessarily waives sovereign immunity.” Burns Ranches, 2011 U.S. Dist. LEXIS 137239 at *9-10; see also David Laughing Horse Robinson, v. Salazar, 2012 U.S. Dist. LEXIS 5422 (E.D. Cal., January 18, 20012) (“Section 2201, alone, does not waive sovereign immunity”). 7

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capacities, see e.g., FAC, ¶¶ 38-65, 72-75, 84-97, such claims against them are claims against the Government for sovereign immunity purposes and this Court lacks subject matter jurisdiction over such claims. See Balser v. DOJ, 327 F.3d 903, 909 (9th Cir. 2003) (existence of Bivens claim does not state a viable cause of action against a U.S. trustee acting in official capacity) and authorities cited at moving brief, at p. 7. The federal defendants should be dismissed from suit for the additional reason that the Federal Tort Claims Act (“FTCA”) sets forth the specific limits of where the government has consented to be sued, and Courts have held that this statute does not waive the government’s immunity to suit for damages for constitutional violations. See FDIC v. Meyer, 510 U.S. 478, 485-86 (1994); Pereira v. United States Postal Serv., 964 F2d 873, 876 (9th

10 Cir. 1992). Plaintiff does not address these arguments or authorities. Opp., Sec. VI. As 11 sovereign immunity bars Plaintiff’s purported constitutional claims, each should be dismissed 12 with prejudice. 13 14 2. Claims Against Judges Are Barred By Absolute Immunity.

The USA’s opening brief set forth authority that the judicial defendants are absolutely

15 immune from suit. See section III.D.2. Plaintiff does not address any of these legal authorities or 16 cite any legal authorities. Opp., ¶¶ 40-42. Rather, she conclusorily alleges “these judicial 17 Defendants’ conducts are ‘non-judicial acts,’ - extra-judicial crimes and frauds.” Id., ¶ 41. Such 18 conclusions do not save Plaintiff’s claims. Washington v. Alameda County Social Services, et al., 19 2007 U.S. Dist. LEXIS 37696 (N.D. Cal., May 9, 2007) (despite conclusory allegation that 20 judicial defendants “acted in clear absence of jurisdiction,” complaint challenged judicial acts, 21 such as court orders and manner in which hearings were conducted, thus, dismissal on grounds of 22 immunity was warranted). As discussed in the USA’s opening brief, an act is considered 23 “judicial” when it is a function normally performed by a judge and the parties dealt with the judge 24 in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978). Allegations of conspiracy 25 do not defeat such immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Neither do 26 allegations of bad faith or malice. Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judge alleged to 27 have ordered officers to bring attorney to his courtroom and to use excessive force protected by 28 judicial immunity). Here, the conduct alleged in the FAC meets the standards for “official judicial


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conduct” conduct set forth in Ashelman: (1) the acts complained of were normal judicial functions (e.g., issuance of court orders, case management9); (2) the events occurred in the courtroom; (3) the controversy centered around Plaintiff’s case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judges in their official capacity. Ashelman, 793 F.2d at 1078. Plaintiff disagrees with the actions10, but such disagreement “does not justify depriving that judge of his immunity.” Stump, 435 U.S. at 363-64. Plaintiff’s claims against all of the judges should be dismissed with prejudice. 3. Court Employees Enjoy Absolute Quasi-Judicial Immunity.

The USA’s opening brief set forth the authority that the court employee defendants are

10 entitled to absolute quasi-judicial immunity. See section III.D.3. Plaintiff does not appear to have 11 addressed this issue. See Opp. To the extent that Plaintiff incorporated her arguments into her 12 scant argument regarding the judicial defendants, Opp., ¶¶ 40-42, her claims fail for similar 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See also Samuel v. Michaud, 980 F. Supp. 1381, 1403 (D. Idaho 1996) (“Rulings on motion, witnesses, recusals, hearing dates, stay of proceedings, certification of employees, preparation of orders, and settlement negotiations are all judicial acts within the ambit of judicial immunity”) aff'd, 129 F.3d 127 (9th Cir. 1997). To the extent plaintiff asserts that the actions by the judges were in “complete absence” of jurisdiction, she has alleged no such supporting facts. See FAC. Further, a plain reading compels only the conclusion that the judicial conduct alleged was well within the court’s jurisdiction. See e.g., 28 U.S.C. § 2071 (authorizing courts to prescribe for the conduct of court business); Fed. R. Civ. Proc. 83 (authorizing rules and directives by district courts); Fed. R. Civ. Proc. 41(b) (providing for dismissal for failure to comply with rules or a court order); Fed. R. Civ. Proc. 16(f) (authorizing court to issue sanctions and “any just orders” for a party’s failure to appear at a conference or obey an order); Fed. R. Civ. Proc. 37(b) (authorizing sanctions for failure to abide by court’s discovery order). For example, Plaintiff takes issue with Judge Alsup’s denial of her request to continue the Case Management Conference or appear by phone. FAC, ¶¶ 86-92. However, 28 U.S.C. § 2071 grants the courts wide authority to adopt rules for conducting its business. Further, Local Rule 16-2 provides for the court’s latitude in scheduling case management conferences. Local Rule 16-10 also provides for the requirement of attendance by the parties. As the Ninth Circuit noted in Mullis, 828 F2d 1385, 1394 (9th Cir. 1987), Congress has provided “carefully structured procedures for taking appeals, including interlocutory appeals, and for petitioning for extraordinary writs in Title 28 of the United States Code. Through these procedures, a litigant, such as [Plaintiff], receives full federal court review of allegations or deprivations of federal constitutional rights by federal judicial officers acting under color of federal law.” Like the plaintiff in Mullis, Plaintiff made more than ample use of these procedures. Carradero Decl., Exs. 14-41.
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reasons. Court personnel have absolute quasi-judicial immunity when they perform tasks that are an integral part of the judicial process. Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996); Mullis, 828 F.2d 1385 (9th Cir. 1987) (filing or refusing to file a document protected by judicial immunity); Samuel, 980 F. Supp. at 1403 (dismissing claims against judges and court personnel alleged to have engaged in a conspiracy to predetermine the outcome of the case on the grounds of immunity) aff'd, 129 F.3d 127 (9th Cir. 1997). Here, the actions complained of are an integral part of the judicial process11 in managing court matters and thus, render the court personnel completely immune from liability for their judicial acts. Mullis, supra; see also Ilaw v. U.S., 2012 U.S. Dist. LEXIS 24352 (N.D. Cal., February 27, 2012) (court personnel’s conduct in failing to

10 take action to seal court records and being rude to plaintiff protected by absolute quasi-judicial 11 immunity). Even if the Court were to find that any of the acts taken by the court personnel were 12 mistakes or in excess of jurisdiction, quasi-judicial immunity would not be abrogated, “even if it 13 results in ‘grave procedural errors.’” Mullis, 828 F.2d at 1390 quoting Stump, 435 U.S. at 359. 14 Further, the Ninth Circuit has repeatedly “extended absolute quasi-judicial court 15 clerks and other non-judicial officers for purely administrative acts-acts which taken out of 16 context would appear ministerial, but when viewed in context are actually a part of the judicial 17 function.” Curry v. Castillo (in Re Castillo), 297 F.3d 940, 951-52 (9th Cir. 2002). Accordingly, 18 the claims against “JLM”, Bourgeois and Dwyer should be dismissed with prejudice. 19 20 4. Plaintiff Cannot Plead A Claim Against Phillips.

Plaintiff provides insufficient facts about any conduct by Phillips and simply argues that

21 he is “liable for such operation because of his position...” Opp., ¶ 43. As discussed in the moving 22 brief, in addition to insufficient pleading, this is precisely the theory of liability that the Supreme 23 Court rejected as a matter of law in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Brief, III.D.5. 24 Plaintiff’s seventh and eighth claims against Phillips should be dismissed with prejudice. 25 26 27 28 As one example, Plaintiff complains that Dwyer improperly dismissed her appeal for failure to prosecute. FAC, ¶ 7, 72-74. However, Ninth Circuit Rule 42-1 authorizes the clerk to dismiss cases for failure to prosecute.


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Plaintiff Has Failed To Plead A Claim Against AUSA Carradero.

In the moving brief, the USA asserted that Plaintiff failed to plead any facts about the conduct of AUSA Carradero (see FAC, ¶¶ 84, 97, 130), but even if she had, the AUSA is entitled to absolute immunity. Brief, III.D.5. In response, Plaintiff claims that the AUSA’s filing “excluded service on [her], in concert with the same acts of Defendant judge.” Opp., ¶¶ 44-45.12 Plaintiff admits that she cannot state more facts. Opp., ¶ 45. The fourth cause of action against AUSA Carradero should be dismissed with prejudice. 6. Plaintiff’s Purported Bivens Claim Fails

The USA’s moving brief set forth case after case explaining the requirements for pleading

10 a Bivens claim and that claims against government officials alleged to arise from constitutional 11 violations cannot be founded upon conclusory, vague, or general allegations. See Brief, III.D.6. at 12 p. 9-12. In response, Plaintiff contends that she has provided 33 pages of facts sufficient to 13 establish a claim. Opp., ¶ 48. A basic review of Plaintiff’s FAC reveals: (1) the purported facts 14 are insufficient to state a Bivens claim; and (2) Plaintiff’s conclusory assertions and labels fail to 15 cure this insufficiency. 16 Rule 8 of the Federal Rules of Civil Procedure provides that to state a claim, a pleading

17 must contain “a short and plain statement of the claim showing that the pleader is entitled to 18 relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). The Supreme Court’s recent rulings in Bell 19 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 20 1949-50 (2009) require pleading that goes beyond the “labels and conclusions” Plaintiff offers in 21 her FAC. In these cases, the Supreme Court has implemented a new “plausibility” standard which 22 requires complaints to include “enough facts to state a claim to relief that is plausible on its face.” 23 24 25 26 27 28 As an initial matter, Plaintiff was served with documents filed by the AUSA and by the Court. See Docket showing certificates of service. More substantively, that Plaintiff did not receive email notice cannot be the basis for any claim. General Order 45, Local Rules, and Pacer sets forth the terms and conditions of e-filing. Pro se litigants need to obtain permission to e-file, which Plaintiff did not do until January of 2012. The AUSA, like any user of the e-filing system, does not control access to Pacer and is not responsible for any technical difficulties that any user of the system may have.


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Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1952. Both are particulary instructive in light of the allegations here. In Twombly, the plaintiffs attempted to allege a conspiracy. 550 U.S. at 555. The Supreme Court concluded that allegations of an “unlawful agreement” were legal conclusions not entitled to an assumption of the truth. Id. The Supreme Court next addressed the “nub” of the complaint - the factual allegation of parallel behavior - to determine if it gave rise to a “plausible suggestions of conspiracy.” Id., at 565-66. The court held that the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement or conspiracy. Id., at 570. In Iqbal, plaintiff attempted to allege a Bivens claim that his constitutional rights had been violated on account of his race and national origin. Iqbal, 129 S.Ct. at 1942. The Supreme Court

10 rejected Plaintiff’s conclusion that the actions taken were race based, holding that the lack of 11 factual allegations to show a discriminatory state of mind did not make it “plausible” to find such 12 a discriminatory state of mind. Id. at 1952. The Supreme Court concluded: “He would need to 13 allege more by way of factual content to ‘nudge’ his claim of purposeful discrimination ‘across 14 the line from conceivable to plausible.’” Id. at 1952 (citing Twombly). 15 Similarly here, Plaintiff’s complaint is void of allegations to establish the requisite

16 discriminatory or conspiratorial state of mind for a Bivens claim. See FAC, ¶ 83 ( “The only 17 reason for this denial of my right can only be because of my race, that I am a person of ethnic 18 Chinese, fighting against the racial persecution on me by this system.”); See FAC generally 19 (conclusory allegations of “conspiracy” and “fraud” without providing any sufficient facts to 20 establish any part of the elements for such a claim). Iqbal, 129 S.Ct., at 1951 (“It is the 21 conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that 22 disentitles them to the presumption of truth”). As such, the Court should dismiss Plaintiff’s 23 purported Bivens claims for failure to state a claim.13 24 25 26 27 28 As discussed in the moving brief, even if the Court were to find that the federal defendants were not entitled to absolute immunity, they are entitled to qualified immunity under the two part and three part tests set forth by the Ninth Circuit and this court must protect the substance of the qualified immunity defense. Brief, p . III.D.6.b at pp. 11-12. Plaintiff does not appear to have addressed these arguments. 12


Res Judicata/Collateral Estoppel Bar Plaintiff’s Claims Against Armstrong.

Plaintiff contends that res judicata does not apply where “fraud upon the court occurs.”

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Opp., ¶ 56. Plaintiff cites no authority. Nor is her allegation plausible when she appealed that action. Carradero Decl., Ex. 39, 40. That decision became final and binding when Plaintiff failed to pursue her appeal. Id.; Fed. R. App., Proc. 40. Plaintiff’s claims against Judge Armstrong should be dismissed with prejudice.14 F. Plaintiff Does Not Meet Article III Requirements 1. Plaintiff Lacks Standing And No Live Ripe Controversy Exists.

The USA’s moving brief set forth why Article III requirements are not met here. Brief, III.F at pp. 13-17. Plaintiff’s response in this regard is not clear. Plaintiff only rebuttal appears to claim that jurisdiction is present because the preamble to a claimed “Attorney’s General’s

10 Guidelines” document allegedly requires the FBI to investigate criminal violations of federal law. 11 Opp., ¶¶ 51-52. Aside from failing to provide the court with the document, cite where it is 12 located, the year promulgated, purpose, scope or effect, nowhere does Plaintiff cite to any rule, 13 law or regulation - in that alleged document or elsewhere - that requires the FBI to conduct an 14 investigation into every allegation of a federal crime or confers any right on any person to invoke 15 the scarce resources of the government to investigate “criminal” allegations. As such, this 16 document does not provide Plaintiff with the requisite standing or this Court with the requisite 17 jurisdiction. North Carolina v. Rice, 404 U.S. 244, 246 (1971) (“federal courts are without power 18 to decide questions that cannot affect the rights of litigants in the case before them.”). 19 20 21 2. This Court Lacks Subject Matter Jurisdiction For Additional Reasons a.

Plaintiff Has Failed To Plead That She Has Exhausted Administrative Remedies According to her civil case cover sheet, Plaintiff seeks $3,000,000 for the alleged acts by

22 the USA, the government’s agencies, and various federal actors in their official capacity. Plaintiff 23 claims that the Complaint is not brought pursuant to the FTCA. Opp., ¶ 54. However, as 24 previously discussed, the United States, as sovereign, is immune from suit save as it consents to 25 be sued. U.S. v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA sets forth the limited manner in 26 which the government consents to be sued. 28 U.S.C 2675(a); see also Iwal, supra, (allegations 27 28 As discussed in the USA’s moving papers, the DOJ and FBI have been named in Plaintiff’s prior actions for the same claims and issues before. Brief, p. 13, fn. 5. Plaintiff does not deny this. 13

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based on purported “negligence,” “”harassment,” or “retaliation” of federal court personnel governed by FTCA). Accordingly, as Plaintiff has not complied with the FTCA, the FAC should be dismissed. Mandamus Jurisdiction and Review Under the Administrative Procedures Act Are Not Available Here As far as Defendant can ascertain from Plaintiff’s FAC, the claimed refusal to investigate her “human rights case” is the predicate for her first, second and third causes of action. FAC, ¶¶ 119-129. The USA’s moving brief set forth the similar standards for the extraordinary relief of mandamus and relief under the APA. Brief, III.F.2.b. Plaintiff does not appear to have addressed these arguments. See Opp., For the reasons stated in the moving brief, jurisdiction does not lie. This Court Lacks Jurisdiction Over Plaintiff’s Tenth Cause of Action Challenging the Immigration and Nationality Act. The USA’s moving brief set forth the authorities that preclude Plaintiff from challenging c. b.

12 8 U.S.C. § 1182 setting forth the inadmissibility of aliens who have committed certain criminal 13 and this Court’s inability to hear any such claim. Brief, III.F.2.c. Plaintiff’s response to these 14 arguments and authorities is not decipherable. Opp., ¶ 53. She does not address the authorities 15 cited by the USA and does not cite any authorities. Plaintiff’s tenth cause of action should be 16 dismissed with prejudice for the reasons stated in the USA’s moving brief. 17 18 G. Plaintiff Cannot Revive Her Claims Via Rule 60.

Plaintiff’s FAC alleges three bases for relief under Rule 60: (1) the order in Case No. 07-

19 2776 PJH dismissing her action for failure to effect service was allegedly erroneous and “procured 20 by fraud”15; (2) Bourgeois refused to file Plaintiff’s independent action on May 11, 2010 “on a 21 fraudulent” basis; (3) Ninth Circuit Clerk Dwyer dismissed Plaintiff’s appeal “on a fraudulent 22 ground regarding the payment of the appeal.” FAC, ¶¶ 5-7. The USA’s moving brief set forth 23 the standards for motions and actions under Rule 60 and why Plaintiff’s FAC fell way short. 24 Brief, III.G at pp. 18-19. Plaintiff’s only rebuttal is that her complaint should not be dismissed 25 because the Court “must” accept as true the allegation that Bourgeois engaged in “fraud on the 26 court” for rejecting her filing and that such conduct was not permitted by Rule 5 regarding the 27 28 Plaintiff already raised this issue with the Court via motions for investigation of the docket and a motion for relief, both of which were denied. Carradero Decl., Ex. 30 (Docket - see entries 55 and 81 seeking investigation of docket and Rule 60 relief from order re service; Ex. 36 (Order on plaintiff’s motions). 14

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service and filing of pleadings. Opp., ¶ 55. This contention must be rejected. As discussed above, Iqbal and Twombly require proper factual pleading to meet the “plausibility” standard and rejects the notion of accepting the truth of legal conclusions. Plaintiff labels her allegations “fraud” but fails to provide any factual support demonstrating even one element of “fraud.” Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003). Her action is an abuse of Rule 60 and should be dismissed. H. Plaintiff’s Complaint Is Incoherent, Nonsensical, And Delusional.

As discussed in the USA’s moving brief at Section III.H. at p. 20, under Rule 12(b)(6), “a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or

10 conclusory legal allegations cast in the form of factual allegations.” Bureerong v. Uvawas, 922 F. 11 Supp. 1450, 1462 (C. D. Cal. 1996). Plaintiff makes no attempt to distinguish her complaint from 12 those this Court has previously dismissed. One no look further than any one allegation or any one 13 “claim for relief” to demonstrate the nonsensical and delusional nature of Plaintiff’s complaint 14 requiring dismissal.16 The FAC should be dismissed with prejudice. Hishon v. King & Spalding, 15 467 U.S. 69, 73 (1984) (complaint may be dismissed for failure to state a claim if it appears 16 beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would 17 entitle him to relief). 18 II. 19 20 21 DATED: March 22, 2012 22 23 24 25 26 27 28 See FAC, ¶ 75 (purported “death threat on internet posting”), ¶ 124 (“The silence of the government is an admission that this person is actually a government insider, and he was speaking for the government), ¶ 126 (“Apparently, this perpetrator spoke for the government, and got protection from the government, these are evidences that his threats are a government action, or at least a government backed up action. Either way, the US government is responsible for these death threats and threats of forced disappearance against me”). 15

CONCLUSION The FAC should be dismissed with prejudice. Respectfully submitted, MELINDA HAAG United States Attorney ________/s/________________ Victoria R. Carradero Attorneys for United States of America

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