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FILED IN SCLERKS
IN THE UNITED STATES DISTRICT COURT
JUL 11 2008
FOR THE NORTHERN DISTRICT OF GEORGIA,
, 1 ER
JAMES B . STEGEMAN,
JANET D. MCDUNALD,
SUPERIOR COURT, et, al .,
PLAINTIFFS' BRIEF IN RESPONSE TO DEFENDANTS GEORGIA
POWER, BRIAN P. WATT AND SCOTT A. FARROW'S
MOTION TO DISMISS
COMES NOW,- Plaintiffs James B . Stegeman and Janet D . McDonald and
file Plaintiffs' Brief In Response To Defendants Georgia Power, Brian P . Watt and
Scott A. Farrow's' Motion To Dismiss .
Plaintiffs filed this action, not as an appeal as the Defendants attempt to have
this Court believe, but as a separate action resulting from "extrinsic fraud", and
other "illegal acts" Plaintiffs are not claiming a legal error by the state court, they
are claiming "fraud upon the court" by the opposing parties .
1 Referred to hereinafter as "GA Power Defendants" or "these Defendants"
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These defendants claim that Plaintiffs have failed to state a valid cause of
action. Although Plaintiffs believe they have properly plead, should this Court
decide that defendants are correct, Plaintiffs MOVE this Honorable Court for a
chance to amend their pleading in order to plead the causes of action correctly
rather than dismiss this case .
Matters Irrelevant To This Case
In Defendant's Memorandum of Law In Support Of Motion To Dismiss,2
they attempt to cloud the issues with matters wholly irrelevant to this case . They
make immaterial, irrelevant statements to discredit, bring bias toward and
prejudice against the Plaintiffs and thereby manipulate the Court and it's processes .
These defendants begin their "Memorandum of Law . . ." with "No possible
construction of the rambl ing allegation s. . ."; "With this action , . . . perpetuate a
disturbing trend . . . pro se lit igants, . . individual unfortunate enough . . ."; "Indeed
Plaintiffs themselves are no strangers to this very tactic" ; " . . .should not allow
Plaintiffs' misuse of the judicial system . . ." (MTD pg .2) These Defendants make
several unsubstantiated, false statements with the intent to mislead this Court . (See
"Background" of MTD, pgs . 2-5 .) NOTE : incorrectly references Plaintiffs .
These defendants would have Courts of Georgia and the United States
2 Motion to Dismiss referred to hereinafter as "MTD"
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violate the Rights of the disabled, the Rights of pro se litigants, as well as all the
Rights of any other citizen with whom they disagree . Denying disabled, pro sea
litigants meaningful access to the Courts falls within violations of Constitutionally
guaranteed Rights see Tennessee v. Lane 541 U.S . 513 (2004); U.S. v. Georgia,
" . . .interference with access to the judicial process, and procedural due process
violations. . ."
These defendants reference this Court's denial of Plaintiff Stegeman's
Motion To Proceed On Appeal In Forma Paoeris,4 (1VITU-pg.2-*fnl) which is
meant to prejudice this Court and has no relevance to this case . These defendants
should take note that the 11 '' Circuit Appeal has not been dismissed or denied, but
is c urrently pending,.
ARGUMENT AND CITATION OF AUTHORITY
The Su perior Court Action
Plaintiffs were forced to file the Superior Court action because of Matt
Goff's allegations to the State Patrol Troopers . Plaintiffs discussed the matter with
3 Plaintiffs are pro se litigants, Plaintiff Stegeman is a disabled adult as recognized
by The Social Security Act and The Health and Welfare Act and U .S.C. Title 42
§ 12101 thereby a member of a protected class .
4 §1915 IFP cases and fee-paid cases are viewed differently by the Court in that
IFP cases can be dismissed much more easily than a fee paid case and are "held to
different standards and may be dismissed sua sponte" Vanderberg v. Donaldson,
259 F.3d at 1323 (11'' Cir. 2001 ; Mitchell v. Farcass, 112 F.3d 1483 (11b Cir.
1997); Farese v. Scherer, 3 42 F.3 d 1223 (11~' Cir. 2003)
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law enforcement personnel, who assured them that should anything happen to Matt
Goff,S Plaintiffs would be the major suspect. Plaintiffs have also discussed Matt
Goffls allegation with Duluth Deputy Chief of Police - Colonel Brian Carney6 who
agreed that Plaintiffs would be the major suspects, and that should there be no
other suspects, Plaintiffs would be prosecuted.
B. The Easement Documents
The 1937 easement document has the name as then landowner as Dr . R. F .
Wells; the 1941 document has the name as R . F. Wells; There was neither a Dr. R F. Wells (GA Power's Verified Answers pg. 31, ¶6 "Dr. R. F. Wells"), nor R. F.
Wells (GA Power's Verified Answers pg. 33 ¶15 "Mr . R F. Wells") in Stone
Mountain at any time and neither document has proper information on it. (Comp.
Pg. 8). George Ril ey Wells was the one who had owned land in Stone Mountain,
but not as far down as Sheppard Road . (Response to Superior Court and Judge
Becker's MTD, pgs . 11-12, and attached thereto "Exhibit C" )
Plaintiffs' had gone to the Wells-Brown House hoping to obtain an original
signature of R. F. Wells or Dr . R. F . Wells so that Colonel Bra in Carney would
5 No Police Report or evidence has been submitted to support Goffs claim, GA
Power claimed the event took place in 2004 for statute of limitations(MTD-Exhibit
C, pg.44 169) .
6 Colonel Carney is also President of the American Board of Forensic Document
Examiners, who Plaintiffs had contacted originally about having the "easement
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have something to go by when examining the easement documents . Colonel
Carney had advised on the proper procedure of photographing the signature in case
there was no way to get a copy of it . Plaintiffs had already filled out the agreement
to have the procedure of examination performed . Plaintiffs have attached as
"Exhibit 1 " hereto emails, agreement, and credentials concerning Colonel Carney.
Due to Defendants' fraudulent easement document Plaintiffs filed Motion to
Strike Defendants' Verified Answers and Counterclaim; attached hereto is a true
and correct copy of the Motion as "Exhibit 2".
Defendants, to date have refused
to address the document . Five months after being served with Summons and
complaint, GA Power Amended their counter-suit to include Motion For
Reformation of the easement document,' which legally was admission to Plaintiffs'
allegations in their complaint; Defendants had no easement concerning Plaintiffs'
property . The Verified Answers and counterclaims were never and amended to the
Verified Answers .
Georgia laws on Amending pleadings allows the amendment of pleadings to
conform to the evidence, not evidence to be amended to conform to the pleadings ;
' MTD exhibit C is GA Power's counterclaim pg.3l¶¶6,7,8,9,i0; pg32¶14;
pg.33¶18; pg34¶22 ; pg.35¶¶24,25 GA Power stated 10 times they have a valid
easement; the rest of the counterclaim asks for the Court to grant different kinds of.
8 which swore that the matter had been thoroughly investigated and were true
including the easement document which was attached as their proof
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not the answers to be amended to include a reformation9 of fraudulent evidence ;
Plaintiffs did object to the Amendment , see the following:
(a) Amendments . A party may amend his pleading . . .before the
entry of a pretrial order . . .A party may plead or move in response
to an amended pleading. . . (b) Amendments to conform to the
evidence. When issues not raised by the pleadings are tried by
express or implied co nsent of the parties, . . .Such amendment
. . .may be necessary to cause them to conform to the ev idence . . .
C. Fictio n al Discovery Dispu te
These defendants make false representation to this Court MTD pg .4: "As
Georgia Power undertook discovery, . . refused to cooperate, claiming that they . . .
proven their case (Complaint ¶¶43,44,125,127)" . " . . .any discovery by Georgia
Power would be unnecessary . (Id. at x¶33,34,65). The statements are lies . These
Defendants further state : " . . .noticed depositions, but Plaintiffs refused to appear .
(Id. at ¶¶5$-60,76 )"; " . . .merits of the case decided before any significant discovery
had occurred .10
(See generally, id.
at Exhibit 12 ; ¶¶31, 43, 44) .51-
". . .inundated . . .with motions . . ." Obviously, as was done in Superior Court,
9 Which is prohibited by Ga . Law in this circumstance as evidenced by the Ga .
Statutes previously provided in Plaintiffs' complaint and as an Exhibit to Plaintiffs'
Response to Superior Court and Judge Becker's MTD .
10 There was only one (1) ultimate issue in the case, whether or not GA Power had
a legal easement agreement that pertained to Plaintiffs property . According to
rules of all courts, the main objective is to have the case complete as efficiently as
possible . Once the issue is settled, there is nothing left to discover, it was proven
GA Power did not have a legal easement pertaining to Plaintiffs' property!
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defendants take things out of context as to what is said to manipulate the Court,
and looking at the Docket Report clearly shows that Georgia Power over-burdened
the Court with filings, see complaint Exhibit 12 .
The Factual Events :
Plaintiffs properly answered GA Power discovery requests, and stated to
contact Plaintiffs to make arrangements for inspecting, viewing and copying of
photographs, video, etc . Rather than contact Plaintiffs, defendants sent a discovery
dispute letter dated February 19'h attached hereto is the original letter "Exhibit
3';" on the l~` page, there are four items, Plaintiffs called Watt, and complied
with the demands of the Feb. 19th letter. Defendants then claimed that the letter
made requests for copy of video tape, which was not in the Feb . 19`h letter. 12
The original letter from Defendant Watt dated February 27 attached hereto
as "Exhibit 4" pg.2 shows that there had been agreement that there would be no
depositions set for March .
11 Plaintiffs have attached "original" letters or other documents unless the
"original" letter has already been provided as an Exhibit in Plaintiffs' complaint,
which if the original was used in the Complaint, Plaintiffs have attached a true and
correct copy of the letter and shall so state .
12 Later, in Defendants' Motion for Continuance the preposterous claim was made
that Plaintiffs refused to allow inspection of the videotape (plaintiffs had said to
contact them for inspection and copying, defendants refused to do so) and that the
videotape gave rise to the lawsuit (a false representation which defendants refused
to address when challenged) .
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Plaintiffs filed Motion to Strike (3/12/2008)3 and filed for a protective order
Motion to Stay Discovery (3/24/2008) showing that Defendants had orchestrated a
fictional discovery dispute ; these defendants filed Motion For Continuance
(03/28/2008)' claiming to need to investigate and depose before responding" 2
and Motions to Compel (3/31/2008) and (4/15/2008) ; 16 Plaintiffs' responded to
both Motions and showed that Court that :
1) There was no Discovery Dispute, the items in the letter had been
complied with ;
2) Discovery requests were in violation of O .C.G.A. §§9-11-26
through 9-11-37, and U.S.C.R. . Rules 5 .3, and 6 .4;
3) that the same 6.4 letter was used for both Motions to Compel ;
4) and that the Watt had perjured himself in both Certifications
Plaintiffs have attached as "Exhibit 5" true and correct copies of Plaintiffs'
Responsive . . .Motion To Dismiss . . .and. . .Counsel's Certification . . ., (Exhibit A
13 plaintiffs mailed the Motion U .S .P.S. Priority, Certified Mail, the Court received
the Motion on March 8, 2008 but held without filing until March 12th and didn't
mail back Plaintiffs' copy although there was postage pre-paid, self-addressed
envelope to do so ; no explanation was given .
14 Plaintiffs Objected to Continuance ; Motion to Strike, Motion to Stay were not
ruled on until the Order dismissing Plaintiffs' complaint, Motion for Continuance
has never been ruled on.
's Plaintiffs responded to Motion for Continuance citing bad-faith attempt to delay
and that depositions will not legitimize a falsified fraudulent document .
16 Without ruling on any other Motions Judge Becker jumped to Defendant's
Motion to Compel filed 03/31/2008 and their second Motion to Compel filed
04/15/2008, without a hearing scheduled and denying Plaintiffs their Rights of due
process, ruled on both Motions in the same Order, in favor of Defendants on May
05/28/2008, then didn't notify Plaintiffs of the decision .
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attached to that is) Plaintiffs' Consolidated . . . Objections . . .Motion to Compel
. . . AND
. . .Certification of Compliance . . . . Defendants d iscovery requests were in
violation of Georgia statutes which require a definite date and time for response .
Plaintiffs further showed that defendants and their attorneys had perjured
themselves in every Verification, Affidavit, and Certification filed with the court
and were doing so to manipulate the court and the Court's process which in turn
violated Plaintiffs' due process rights and asked to have the offensive documents
"It is the responsibility of the trial court to ensure that the system is
not manipulated by any party. . ." Carson v. State, Ga. App . (SE2d)
(Case No. A0314Q3, 2003) ;
"A trial court also is authorized "[t]o preserve and enforce
order . . .to prevent . . . and hindrance to its proceedings ." Robinson v.
Becker, Ga. App. (SE2d) (Case No . A03A2524, 2004).
See also judicial gEkMeh
"is directed against those who would attempt to manipulate the
court system through the calculated assertion of divergent sworn
positions . . ." Johnson Service Co. v. Transamerica Insurance
Co., 485 F.2d 164, 174 (5' Cir . 1973); Chrysler Credit Corp. v.
Rebhan, 842 F.2d 1257, 1261 (11d' Cir. 1988);
"The doctrine is designed to prevent parties from making a
mockery of justice by inconsistent pleadings ." American Nat'I
Bank of Jacksonville v. FDIC, 710 F.2d 1528, 1536 (10' Cir .
The case was stayed, there could be no ruling on Motion to Compel without
1 ' The Motions to Strike the offensive, perjured filings was ignored by the Court .
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first denying the Stay and granting the continuance . l$
Hearing Not On Motion Calendar or Schedul ed
These defendants attempt to make Plaintiffs at fault for not appearing at a
hearing that was neither on the Motion Calendar , nor shown in "Scheduled Events"
on the Docket. Plaintiffs Petitioned the Court For a Docket Correction a true and
correct copy is attached as "exhibit 6" on pg.3 Plaintiffs complain that neither the
Docket Report nor the Scheduled Events showed the hearing . 19 After filing the
Petition, several entries were corrected, there still was no scheduled events and the
Motion calendar still showed no hearing . . See the following :
Home Owners Warranty Corp. v. Pinewood Builders, 188 Ga .
App. 324, 326 (373 S .E.2d 34) (1988) . "That concurrence states
that the rule requires that the parties and counsel in all cases on the
calendar be present . . . the Court of Appeals in Fulton v. State of
Ga., 183 Ga. App. 570 (359 S .E.2d 726) (1987), that only the first
five *fn2 cases on the publi shed calendar were required to be
present. . .we believe to state the better interpretation of USC R
. . . 7,
18 To Plaintiffs' knowledge, to date there still has been no ruling on the Motion for
Continuance . Of course, there is no guarantee that Plaintiffs would have been
informed as shown by the Superior Court's actions in that case .
19 U.S.C.R. Rule 2. 4 " . . .the person who is charged with the responsibility of
setting and scheduling all hearings and trials . . .a particular judge. Each calendar
clerk carries out those duties under the supervision of the assigned judge, . . ." See
also Internal Operating Procedures Degalb County Superior Court Stone
8 .C . Duties of Court Clerk and Calendar Clerk
Mountain J udicial Circuit
" . . .The scheduling of any hearing . . .shall be the responsibility of the assigned
judge's calendar clerk, acting under the direction of the assigned judge ."
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The case of Brown v. C & S Nab Bank, 245 Ga. 515 (265 S .E.2d
791) (1980), provides " . . .this Court held that publishing a trial
calendar with the case name on it but without the attorney's name
on it did not meet the trial court's duty . . . Id. at 518 ."
"This Court has held that notice by publication in the Fulton
County Daily Report is . . . Spyropoulos v. John Linard Estate, 243
Ga. 518 (255 S .E.2d 40) (1979).. ."
Plaintiffs have already addressed this issue, CompL ¶130, Exhibit 9 .
Plaintiffs cannot be at fault for missing a hearing that was neither on the Motion
Calendar, nor showing as "Scheduled Events" on the Docket Report
I. GEORGIA POWER DEFENDANTS' MOTION TO DISMISS
"Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed ." Tannenbaun v. United
States , 148 F .3d 1262, 1 263 (11 'h Cir. 1998) (per curiam). See also the following :
"(A) motion to dismiss a complaint, including . . . a civil rights
complaint, for failure to state a claim upon which relief can be
granted is subject to a very strict standard .' Gray a Cramer, 465
F .2d 179, 181 (3d Cir. 1973); [Storm Systems, Inc. v. Kidd, 157
Ga. App. 527, 528 (3) (278 S .E.2d 109) ; Wright & Miller Fed.
Practice & Procedure: Civil §1357 .] A pro se complaint is not
held to stringent standards of formal pleadings, Haines v. Kerner,
404 U.S. 519, 92 S .Ct. 594, 30 L . Ed.2d 652 (1972) [Vinnedge v.
Gibbs, 550 F.2d 926 (1) (0 Cir . 1977)], and the complaint should
not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief .' Conley v. Gibson,
335 U.S . 41, 45-46, 78 S . Ct . 99, 2L . Ed.2d 80 (1957) . See also J .
Moore, 2A Moore's Federal Practice, para. 12.08 at 2265-86
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(1972)." Hugh es v. Roth, 371 F. Supp . 740, 741 (D .C. Pa. 1974).
These defendants have attached to their MTD documents purportedly in
support of their MTD and state "While the Court construes . . ., the Court is
permitted to take judicial notice of documents . . ., as well as pleadings and orders
issued in other legal proceedings . . ." (MTD pg. 3 fn2) Just as these defendants did
in Superior Court, by their actions they ask for Summary Judgment, but by their
words attempt to prevent Summary Judgment : "In examining the merits of the
claims, the court must . . . `look only to the facts alleged in the complaint and not
beyond."' (MTD pg. 5) .
"[w]henevex a judge considers matters outside the pleadings in a
12(b)(6) motion, that motion is thereby converted into a Rule 56
Summary Judgment motion." Trustmark Ins. Co. v. ESLU, Inc.,
299 F.3d 1265, 1267 (11th Cir. 2002)
Of course, proceeding as pro se, Plaintiffs are unsure whether or not this
case will be converted and requests this Court to make the determination whether
or not such conversion will take place and inform the parties if conversion is taking
place so that these Plaintiffs can take the appropriate steps for Summary Judgment .
IL PLAINTIFFS' §1983 CLAIM
Plaintiffs have shown that GA Power has never had an easement concerning
Plaintiffs' property, yet continue to claim they do . (MTD pg. 3 : " . . .Georgia
Power possesses a valid easement . . .")
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A. Under Color Of State Law
It has been held that where as here, the allegations are that these defendants
conspired with Judge Becker, her law clerk and calendar clerk . Judge Becker and
her clerks performed official acts, the acts were the product of a corrupt conspiracy
with these defendants, the acts were performed without consequence were illegal
acts designed to have Plaintiffs' case dismissed for a fictional discovery dispute .;
which is exactly what happened .
Although these defendants appear to claim that Plaintiffs failed to allege or
link the illegal acts that plagued the Superior Court proceedings, Plaintiffs believe
they showed the link . (Compl. pgs. 8-16) Plaintiffs have attached a true and
correct copy Plaintiffs' Statements For The Record . . . as "Exhibit 7"20. Judge
Becker's having ignored the illegal acts resulted in Defendants' manipulation of
the Court and it's process without interference, which resulted in Plaintiffs'
complaint being dismissed . Clearly this shows corruption, conspiracy, and
intentional gross violations of Plaintiffs' right to due process of law and ultimately
resulted in Dismissal of Plaintiffs' complaint .
Private parties who corruptly conspire with a judge in connection with such
conduct are thus acting under color of state law within the meaning of § 1983 .
20 Plaintiffs attempted to have Judge Becker address the illegal acts numerous
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" . . . `under color of state law for §1983 purposes does not requite
that the defendant be an officer of the state . It is enough that he is a
willful participant in joint action with the State or its agents .
Private persons, jointly engaged with State officials in the
challenged action, are acting "under color" of law for purposes of
§1983 actions." Adickes v. S. H. Kress & Co., 398 U/S/ 144, 152
(1 970); United States v. Price, 383 U .S. 787, 794 (1966)
Sparks v . Sparks, el., al., 101 S . Ct. 183, 449 U.S. 24 (U .S . 1980)
"Title U.S .C. §242, the criminal analog of §1983, also contains a
color-of-state-law requirement and we have interpreted the colorof-state-law requirement in these sections coextensively . Adickes
v. S. H. Kress & Co., supra, at 152, n . 7. A state judge can be
found criminally liable under §242 . . . See Imbler v. Pachtman, 242
U.S. 409, 429 (1976); O'Shea v. Littleton, 414 U.S. 488, 503
(1974) . In either case, the judge has acted under color of law ."
These defendants' MTD pgs. 11-12 show seven of the instances referenced
by Plaintiffs complaint starting with "Superior Court failed . . ." see the following:
O.C.G.A. § 44-2-77
While the cause is pending before the examiner of titles or at any
time before final decree, the judge, or the examiner with the approval
of the judge, may require the land to be surveyed by some competent
surveyor and may order durable bounds to be set and a plat thereof to
be filed among the papers of the suit . Before such survey is made, all
adjoining landowners shall be given at least five days' notice . The
petitioner or any adjoining owner dissatisfied with the survey may file
a protest with the court within ten days from the time the plat is filed ;
and thereupon an issue shall be made up and tried as in case of protest
to the return of land processioners .
"Superior Court. . . failing to act . . . fraudulent documents . . ."
O.C.G.A. § 44-2-43
Any person who: (1) fraudulently obtains or attempts to obtain a
decree of registration of title to any land or interest therein; (2)
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knowingly offers in evidence any forged or fraudulent document
in the course of any proceedings with regard to registered lands or any
interest therein; (3) makes or utters any forged instrument of
transfer or instrument of mortgage or any other paper, writing, or
document used in connection with any of the proceedings required
for the registration of lands or the notation of entries upon the
register of titles; (4) steals or fraudulently conceals any owner's
certificate, creditor's certificate, or other certificate of title provided
for under this article ; (5) fraudulently alters, changes, or mutilates
any writing, instrument, document , record, registration, or register
provided for under this article ; (6) makes any false oath or affidavit
with respect to any matter or thing provided for in this article ; or (7)
makes or knowingly uses any counterfeit of any certificate provided
for by this article s hall be guilty of a felony and shall be punished by
imprisonment for not less than one nor more than ten years.
Title 44, Chapter 2 , Section 44 (44-2-44)
Any clerk, deputy clerk, special clerk, or other person performing the
duties of the office of clerk who : (1) fraudulently enters a decree of
registration without authority of the court ; (2) fraudulently registers
any title ; (3) fraudulently makes any notation or entry upon the
title register; (4) fraudulently issues any certificate of title, creditor's
certificate, or other instrument provided for by this article ; or (5)
knowingly, intentionally, and fraudulently does any act of omission
or commission under color of his office in relation to the matters
provided for by this article s hall b e guilty of a felony and shall be
removed from office and be permanently disqualified from holding
any public office and shall be punished by imprisonment for not
less than one nor more than ten years.
B. Deprivation of A Constitutionally Protected Right
These defendants state that Plaintiffs have failed to "articulate the
constitutionally-protected right. . . "(MTD pg. 13) .
Pavesich v. New England Life Ins Co., 122 Ga. 190, 197 (50 S .E.
68) (1905) held :
". . . that Georgia citizens have a "liberty of privacy" guaranteed by
the Georgia constitutional provision which declares that no person
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shall be deprived of liberty except by due process of law"
These defendants also reference Plaintiffs' claims about the Fourth and Fifth
Amendments (MTD pg. 13). The Supreme Court has explained, "[c]ertain wrongs
effect more than a single right and accordingly, can implicate more than one of the
Constitution's commands." Solodal v. Cook County, 506 U.S . 56, 70 (1992) ;
Accord James Daniel Good Real Property, 510 U.S. at 50-52.
The Supreme Court has held that a seizure of property occurs whenever
"there is some meaningful interference with an individual's possessory interests in
that property" United States v. Jacobsen, 466 U.S. 109, 113 (1984).
In James Daniel Good Real Property and Soldal, "the seizure of property
implicates two explicit textual sources of constitutional protection, the Fourth
Amendment and the Fifth ."
James Daniel Good Real Prop., 510 U.S. at 50
(internal quotation marks omitted); Soldal, 506 U.S. at 70 .
The petition and amendments thereto shall be signed and sworn to
by each petitioner, or, in the case of a corporation, by some officer
thereof, . . . . It shall contain a full description of the land, its
valuation, and its last assessment for county taxation ; shall show
when, how, and from whom it was acquired, a description of the
title by which he claims the land, . . .all known liens, interests, and
claims, adverse or otherwise, vested or contingent. Full names and
addresses, if known, of all persons . . .including adjoining owners
and occupants, . . . The description of the land given in the petition
shall be in terms which will identify the same fully and . . . describe
the same as permanently . . .If the land is in a portion of the state in
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which land is divided into land districts and lot numbers by state
survey, the petition shall state the number of the land district and
the lot number or numbers in which the tract is located . Before
passing a decree upon any petition for registration, the judge, on his
own motion or upon the recommendation of the examiner, may
require a fuller and more adequate description or one tending more
permanently to identify the tract in question to be included in the
petition by amendment ; and if, in the discretion of the court, it shall
be necessary, the judge may for that purpose require a survey of the
premises to be made and the boundaries marked by permanent
monuments . The acreage . . . shall be stated with approximate
accuracy; and where reasonably practicable the court may require
the metes and bounds to be stated .
(a)(1) Upon the petition being filed in the office of the clerk of the
superior court in the county where the land is located, the clerk
shall issue a process directed to the sheriffs . . . requiring all of the
defendants named . . . and all other persons "whom it may concern"
to show cause before the court on a named day not less than 40 nor
more than 50 days from the date thereof why the prayers of the
petition should not be granted and why the court should not proceed
to judgment in such cause. The clerk shall make the necessary
copies of the petition and process for service . . . .
While the cause is pending before the examiner of titles or at any
time before final decree, the judge, or the examiner with the
approval of the judge, may require the land to be surveyed by some
competent surveyor and may order durable bounds to be set and a
plat thereof to be filed among the papers of the suit. Before such
survey is made, all adjoining landowners shall be given at least five
days' notice . The petitioner or any adjoining owner dissatisfied with
the survey may file a protest with the court within ten days from the
time the plat is filed ; and thereupon an issue shall be made up and
tried as in case of protest to the return of land processioners .
C. Constitutionally-Inadequate Process
The due process clause of the Fourteenth Amendment guarantees "an
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impartial and disinterested tribunal" . Marshall v. Jerrico, Inc., 466 U.S. 238, 242
(1980); "an absence of actual bias" In Re Murchison, 349 U.S . 133, 136 (1955) .
"Redress for such a violation is available under 42 U .S.C. §1983 when the
constitutional right is violated under color of state law. A private attorney who
conspires with a state judge is within §1983's purview ."
Casa Marie, Inc. v.
Superior Court, 988 F. 2d 252,258-89 (V Cir . 1993).
Ga. Statues are clear on property, the Court's responsibilities concerning real
property, and the methods by which it is to be "taken", punishment for falsifying
documents pertaining to real property, the proper challenges and remedies in
property disputes . The facts are clear, Plaintiffs' property was prior to filing suit in
Superior Court, the Court and attorneys refused to abide by Ga . Statutes which
shows that there was a conspiracy, an agreement was made to have Plaintiffs'
complaint dismissed, the plan was carried out through a fictional discovery dispute,
Plaintiffs' case was dismissed without a hearing having been scheduled. Looking
at the Ga. Statutes concerning what would have had to take place before GA Power
could have attempted to claim part of Plaintiffs' property together with the fact that
R. F . Wells never existed, proves there clearly was a conspiracy .
III. §1985(3) CONSPIRACY
Because Plaintiffs alleged that the Defendants "conspired to commit a
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Fourth Amendment seizure they have stated a claim for a conspiracy to violate
their constitut ional rights" . See e g., Mendocino Envt'l Or. V. Mendocino
County, 192 F.3d 1283, 1301 (9" Cir . 1999).
Further, defendants complain that "requires a showing of some `racial, or
perhaps otherwise class-based, . . ."21 The statement is facially perjury, see
Plaintiffs Verified Complaint pgs . 2,6. Plaintiff Stegeman is 100% Federally
disabled recognized by the State of Georgia as well as The United States under
U.S .C . 42 §12IOL Clearly, Plaintiff Stegeman, a disabled adult and he has been
denied meaningful access and meaningful opportunity to be heard, see the
Tennessee v. Lane, 541 U.S . 513 (2004)
JUSTICE STEVENS delivered the opinion of the Court .
"Title II of the Americans with Disabilities Act of 1990 (ADA or
Act), 104 Stat. 337, 42 U . S. C. §§12131-12165, provides that "no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs or activities of a public entity, or
be subjected to discrimination by any such entity ."'
"The Due Process Clause also requires the States to afford certain
civil litigants a "meaningfu l opportunity to be heard" . . .' Boddie v.
Connecticut, 401 U . S . 371, 379 (1971); M. L. B. v. S. L. J., 519 U.
S. 102 (1996) .
Pg.20: "The unequal treatment of disabled persons in the
administration of judicial services has a long history, and has
21 Plaintiffs also point out that the Supreme Court has recognized the "class of one"
claim, first expressly recognized by the Supreme Court in Village of Willowbrook
v. Olech, 528 U .S . 562 (2000) (per curiam) .
Page 20 of 26
persisted despite several legislative efforts to remedy the problem
of disability discrimination ."
Pg.21 *fn 20 "Because this case implicates the right of access to
the courts, we need not consider whether Title H's duty to
accommodate exceeds what the Constitution requires in the class of
cases that implicate only Cleburne's prohibition on irrational
discrimination. See Garrett, 531 U. S ., at 372 ."
See also :
U.S v. Georgia 04-1203 (2006), Goodman v. Georgia 04-1236
(2006) Justice Stevens with Justice Ginsberg concurring :
" . . .interference with access to the judicial process, and procedural
due process violations . . ."
Plaintiffs have been unable to find caselaw with exact or similar
circumstances where a disabled adult, has been refused assistance of Georgia's
legal-aid program to protect their Rights and property, has gone before the
Superior Court as pro se Plaintiff attempting to protect their Rights and property,
and where the defendants and Judge conspired to violate those rights in order to
allow the already performed illegal acts of falsifying and taking or seizure of real
YOUNGER ABSTENTION DOCTRINE
"In congressional contemplation, the pendency of state civil
proceedings was to be wholly irrelevant . The very purpose of
§1983 was to interpose the federal courts between the States and
the people, as guardian of the people's federal rights (quoting
Mitchum v. Foster, 407 U.S. 225, 407 U .S. 242 (1972)" see Justice
Brennan dissenting, Pennzoil v. Texaco, Inc. 481 U .S. 1 (1987),
page 481 at 19.
Page 21 of 26
As was the case in Miofsky v. Superior Court of California, 703 F.2d 332,
(9th Cir . 1983), Plaintiffs seek the enforcement of that which The United States
Constitution guarantees them and that which GA Power, Superior Court Judge
Becker along with her Law Clerk and Calendar Clerk, acting under color of state
law threaten to deny them .
There are no grounds for exempting from the broad reach of §1983 actions
taken by persons acting under color of state law in judicial proceedings, whether
they are judges or others acting on behalf of the court, see the following :
" . . .we know of no ground for exempting from the broad reach of
Sec . 1983 actions taken by persons acting under color of state law
in judicial proceedings, whether those persons are judges or others
appointed by judges to act on behalf of the court ." Miofsky v.
Superior Court of California, 703 F.2d 332, (9h Cu . 1983) :
"However, civil rights actions under Sec . 1983 are among the
exceptions . . . that have been "expressly authorized by Act of
Congress," id . See Mitchum v Foster, 407 U.S . 225, 92 S .Ct.
21511 32 L.Ed.2d 705 (1972)."
"Thus, as Mitchum makes clear, Congress has not rendered federal
courts impotent in the face of an infringement of constitutional
rights by the judicial arm of state government. As the Court said in
Mitchum, "[t]he very purpose of Sec . 1983 was to interpose the
federal courts between the States and the people, as guardians of
the people's federal rights--to protect the people from
unconstitutional action under color of state law, 'whether that action
be executive, legislative, or judicial .' " 407 U .S . at 242, 92 S .Ct. at
2162 (quoting Ex pane Virginia, 100 U.S. 339, 346, 25 L .Ed. 676
(1879) (emphasis added)) ."'
"In light of Mitchum, we conclude that district courts have subject
matter jurisdiction over suits brought under Sec . 1983 even when
the state action allegedly violating plaintiffs federally protected
Page 22 of 26
rights takes the form of state court proceedings . 3 Accordingly, we
hold that the district court erred in dismissing Miofsky's claim . . ."
GA Power has the right to properly condemn real property . In this case the
private property belonging to Plaintiffs was seized and taken by fraudulent means,
without just compensation . Five months after being served with Summons and
complaint, GA Power Amended to add Motion For Reformation of the falsified
easement document without having ever addressed the fact that the document was
a fraud and did not ever pertain to Plaintiffs' property .
V . ROOKER-FELDMAN
Plaintiffs in the case at bar are claiming "extrinsic fraud" and other "illegal
acts" which prevented them from presenting their claim in court, Rooker-Feldman
does not apply . Plaintiffs are not claiming a legal error by the court, they are
claiming fraud upon the court by the opposing parties .
"Extrinsic fraud is conduct which prevents a party from presenting
his claim in court ." Wood v. McEwen, 644 F.2d 797, 801 (9 h Cir.
See also :
Kougasian v. TMSL, Inc ., No . 02-56781 (9th Cir. 2003) at 2549 :
"Similarly, if the `inextricably intertwined' test means that a federal
plaintiff cannot raise issues that are 'inextricably-intertwined' with
issues raised in simultaneous ongoing state court litigation, RookerFeldman would prevent the parallel state and federal litigation that
is one of the hallmarks of our federal system . See : e.g., Atlantic
Coast Line RR. Co. v. Brotherhood of Locomotive Eng'rs, 398
U.S. 281, 295 (1970) ; Green v, City of Tucson, 255 F.3d 1086,
1097-98 (90' Cu . 2001) (en banc) ; Noel 341 F.3d at 1159.
Page 23 of 26
Much like the claim made by Trust in Weis Builders, Inc. v. Kay S. Brown
Living Trust, 263 F. Supp. 2d 1197, 1202, 1204 (D. Colo . 2002) which appealed
that the Booker-Feldman doctrine did not apply so as to deprive the district court
of subject matter jurisdiction, and that dismissal should be denied, The appellate
Court went on to explain :
". . .Rooker-Feldman does not apply because these state court
orders are separable from and collateral to the federal complaint,
and the federal court is not being asked to sit in appellate review of
either state court ruling . Weis, 236 F. Supp . 2d at 1200-02 ."
"There are however, significant limitations on the scope of the
doctrine . `If the purpose of federal action is separable from and
collateral to a state court judgment, then the claim is not
`inextricably intertwined' merely because the action necessitates
some consideration of the merits of the state court judgment ."
Kiowa, 150 F .3d at 1170 (quotation omitted) . We have cautioned
that "Supreme Court jurisprudence . . . compel[s] a narrow reading
of the `inextricably intertwined' test ." Id at 1169."
"The court in the TBL Action did not order . . .until after Weis had
filed his complaint in federal court . See Weis, 236 F. Supp . 2d at
1200 (noting that Weis could not be seeking review of the
order . . .the federal action was filed before the state court ruled) ."
" . . .the state court did not actually decide the issue presented . . ."
The Plaintiffs in this case do not seek to set aside judgment of Superior
Court based on legal errors by the court; they seek to set aside the judgment based
on extrinsic fraud by the defendants that produced the judgment . Plaintiffs also do
not seek damages based on legal error by the court ; they seek damages based on
the wrongful, i llegal acts of the defendants .
Page 24 of 26
VI. STATE LAW C LAIMS
A. Malicious Abuse of Process
Plaintiffs have shown that what the Defendants attempted to do and have
done concerning real property could not be done either through "Reformation" or
"Declaratory Judgment" ; but could only be done using proper process of O.C.G.A.
§§ 44-2-1 through 44-2-77 . In fact, without following the procedure, the Superior
Court lacked jurisdiction over Plaintiffs' private property . Defendants could not
use the proper procedure due to the "punishments" involved for falsifying real
property documents and or fraudulent land documents .
Clearly perjured statements in Verifications, Affidavits and Certifications22
is willful intent to obstruct justice of the illegal acts shows throughout the
Jowers v. State, 225 Ga. App. 809 (2) (484 SE2d 803) (1997), the
language therein unambiguously prohibits an individual from
making or using any false writing or document, without regard to
the identity of the individual who initially made or subsequently
used the false document . . Because there is no limitation placed on
the prohibited conduct of "making or using" false documents in
OCGA 16-10-20, the statutory language does not support the Court
of Appeals' holding that prosecution for use of a false document is
limited to those situations in which an accused uses false
documents prepared by another . State v. Johnson, supra at 837 .
22 All sworn
Page 25 of 26
C. Intentional Infliction of Emotional Distress
Plaintiffs believe that the above paragraphs show that :
1) These Defendants' actions were illegal and intentional 2) that
society would find their acts extreme and outrageous ; 4) the acts
caused distress 5) the distress was severe especially to a disabled
These Pro Se Plaintiffs believe that they properly plead their complaint,
have properly addressed MTD and MOVE this Honorable Court to DENY
Defendants' MTD. Further, should this Court decide that Plaintiffs failed to
properly plead, Plaintiffs MOVE this Court to be lenient and allow them to Amend
their complaint .
Respectfully submitted this 9`hday of July, 2008,
Mountain, GA 30083
(770) 879- 8737
~ET D. MCDON4D, Pro Se
82 1 Sheppard Rd
Stone Mountain, GA 30083
(770) 879-873 7
Page 26 of 26
CERTIFI CATE OF COMPLIANCE
In compliance with LR 7 .ID, N.D. Ga., I certify that the foregoing Motion
has been prepared in conformity with LR 5 .1, N.D. GA. This Motion was prepared
with Times New Roman (14 point) type, with a top margin of one and one-half
(1 .5") inches and a left margin of one (I") inch, is proportionately spaced .
This 9h day of July, 2008
JAMES B. STE MAN, Pro Se
JANET D . MC NALD, Pro Se
821 Sheppard Rd
Stone Mountain, GA 30083