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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: victoria.carradero@usdoj.gov 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 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND 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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TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv NOTICE OF MOTION AND MOTION TO DISMISS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES TO BE DECIDED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

8 I. 9 II. 10 III. LEGAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 11 A. 12 Failed To Effect Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 13 B. 14 And Cannot State A Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 15 C. 16 To Federal Actors... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 17 D. 18 Plaintiff’s Frivolous Suit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 19 1. 20 2. 21 Absolute Immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 22 3. 23 4. 24 5. 25 AUSA Carradero.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 26 6. 27 a. 28 b. Even If The Bivens Defendants Are Limited The FAC Lacks The Requisite Particularity. . . . . . . . . . . 10 Plaintiff’s Purported Bivens Claim Fails. . . . . . . . . . . . . . . . . . . . 10 Plaintiff Has Failed To Plead A Claim Against Plaintiff Has Failed To Plead A Claim Against Phillips... . . . . . . . 9 Court Employees Enjoy Quasi-Judicial Immunity.. . . . . . . . . . . . . 8 Claims Against Judges Are Barred By Sovereign Immunity Bars Plaintiff’s Action. . . . . . . . . . . . . . . . . . 6 The Federal Defendants Are Immune From Sections 1981 And 1983 Are Inapplicable Plaintiff Does Not Have “Constitutional” Rights No Personal Jurisdiction Exists Because Plaintiff SUMMARY OF FACTS AND PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . 3 INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. G. H. c. b. 2. F. E.

To Qualified Immunity, Plaintiff Must At Least Allege Sufficient Facts to Enable the Court to “Protect the Substance of the Qualified Immunity Defense.”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Res Judicata/Collateral Estoppel Bar Plaintiff’s Claims Against Armstrong.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Plaintiff Does Not Meet Article III Requirements. . . . . . . . . . . . . . . . . . . 13 1. Plaintiff Lacks Standing And No Live Ripe Controversy Exists.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 This Court Lacks Subject Matter Jurisdiction For Additional Reasons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 a. Plaintiff Has Failed To Plead That She Has Exhausted Administrative Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . 15 Mandamus Jurisdiction and Review Under the Administrative Procedures Act Are Not Available Here .. . . . . . . . . . . . . 15 This Court Lacks Jurisdiction Over Plaintiff’s Tenth Cause of Action Challenging the Immigration and Nationality Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Plaintiff Cannot Revive Her Claims Via Rule 60... . . . . . . . . . . . . . . . . . 18 Plaintiff’s Complaint Is Incoherent, Nonsensical, And Delusional.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES FEDERAL CASES Adams v. Vidiera, 2001 WL 277966 (N.D. Cal. Mar. 16, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 20 Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 10109 (9th Cir. 2000). . . . . . . . . . . . . . . . . 19 Appling v. State Farm Mutual Automobile Insurance Co., 340 F.3d 769 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Balser v. Department of Justice, 327 F.3d 903 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Brown v. Li, 308 F.3d 939 (9th Cir. 2002), cert. denied, 538 U.S. 908 (2003). . . . . . . . . . . . . . . 11 Bureerong v. Uvawas, 922 F. Supp. 1450 (C. D. Cal. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Butz v. Economou, 438 U.S. 478 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Capistrano v. Dep. of State, 267 Fed. Appx. 593, 2008 WL 466181 (9th Cir. 2008). . . . . . . . . . 17 Casey v. Alberton's Inc., 362 F .3d 1254 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 In re Castillo, 297 F.3d 940 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Clementson v. Brock, 806 F.2d 1402 (9th Circ. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Crawford-El v. Britton, 523 U.S. 574 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Cuban American Bar Associate, et. al., v. Christopher, et al. 43 F.3d 1412 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874 (9th Cir. 2000). . . . . . . . . . . . . . . . 18 Dees v. CSY, Hayward, et al., 33 F. Supp. 2d 1190 (N.D. Cal. 1998).. . . . . . . . . . . . . . . . . . . . . 17 El-Hadad v. U.S., 377 F. Supp. 2d 42 (D.D.C. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 FDIC v. Meyer, 510 U.S. 471 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Fry v. Melaragno, 939 F.2d 832 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir. 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Heckler v. Ringer, 466 U.S. 602 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Hishon v. King & Spalding, 467 U.S. 69 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Ibrahim v. Chertoff, 538 F.3d 1250 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10 Ibrahim v. Department of Homeland Security, et al., 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. July 27, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Marley v. U.S., 567 F.3d 1030 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Martinez v. California, 444 U.S. 277 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Migra v. Warren City School Distr., Board Of Education, 465 U.S. 75 (1984). . . . . . . . . . . . . . 12 Mireles v. Waco, 502 U.S. 9 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Morse v. North Coast Opportunities, Inc., 118 F.3d 1338 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . 6 North Carolina v. Rice, 404 U.S. 244 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987). . . . . . . . . . . 8, 9 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Olsen v. Idaho State Board of Medicine, 363 F.3d 916 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 6 Pellegrino v. U.S., 73 F.3d 934 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Pereira v. United States Postal Serv., 964 F.2d 873 (9th Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . 7 Pittson Coal Group v. Sebben, 488 U.S. 105 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rhoades v. Avon Products, Inc., 504 F.3d 1151 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 14 Robi v. Five Platters, Inc., 838 F.2d 318 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 Romero v. Kitsap County, 931 F.2d 624 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Samuel v. Michaud, 980 F. Supp. 1381 (D. Idaho 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Sidhu v. Flecto Co., 279 F.3d 896 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Simon v. E. Kentucky, 426 U.S. 26 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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Sorrels v. McKee, 290 F.3d 965 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Spychala v. Gomez, 1994 WL 679889 (N.D. Cal. Dec. 1, 1994).. . . . . . . . . . . . . . . . . . . . . . . . . 20 Stoddard Estate v. Pinkerton Sec. Serv., 1997 WL 732549 (N.D. Cal. Nov. 12, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Stump v. Sparkman, 435 U.S. 349 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tahoe-Sierra Preservation Council v. Tahoe Reg. Planning, 322 F.3d 1064 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Texas v. USA, 106 F.3d 661.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 U.S. v. Sherwood, 312 U.S. 584 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U.S. ex rel. Knauff. v. Shaughnessy, 338 U.S. 537 (1950).. . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 U.S. v. Mitchell, 445 U.S. 535 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U.S. v. Wilson, 631 F.2d 118 (9th Cir.1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 U.S. v. Beggerly, 524 U.S. 38 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Vieux v. East Bay Regional Park Distr., 906 F.2d 1330 (9th Cir. 1990).. . . . . . . . . . . . . . . . . . . 19 Wei v. Hawaii, 763 F.2d 370 (9th Cir. 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Wong v. Leavitt, 2008 U.S. Dist. LEXIS 49816 (E.D.Cal. June 27, 2008). . . . . . . . . . . . . . . . . . 17 Wong v. U.S., 373 F.3d 952 (9th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Xiao v. Gonzalez, 2007 U.S. Dist. LEXIS 69789 (N.D.Cal. September 10, 2007). . . . . . . . . . . . 15 FEDERAL STATUTES 8 U.S.C. 1182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 5 U.S.C. 701.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5 U.S.C. 702 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5 U.S.C. 704.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 28 U.S.C. § 2201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28 U.S.C. 2401(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. 1983.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fed. R. Civ. Proc. 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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Fed. R. Civ. Proc. 60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8. 13, 18, 19 Fed. R. Evid. 201(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on April 6, 2012, at 9:00 a.m. or as soon thereafter as the matter may be heard, before the Honorable Jeffrey S. White, the United States of America, by this special and limited appearance for the sole purpose of filing this motion and without waiving any jurisdictional objections or other defenses, will move this Court to dismiss the First Amended Complaint (“FAC”) against all federal defendants with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1), (2) and (4)-(6) for lack of personal and subject matter jurisdiction, failure to effect service, and failure to state a claim upon which relief can be granted. The hearing will be located on the above specified date and time in Courtroom 11, on the 19th floor of the Federal Building located at 450 Golden Gate Ave., San Francisco, California 94102. This motion is based on this notice, the ensuing points and authorities, the previously filed Motion to Declare Plaintiff a Vexatious Litigant and supporting papers (see Docket Nos. 69, 70, 72), and any such other evidence or argument that the Court may hear. ISSUES TO BE DECIDED The following issues are to be decided: (1) whether Plaintiff has failed to effect service on the federal defendants; (2) whether Plaintiff, a non-resident alien, can state a claim based on the U.S. Constitution; (3) whether the federal defendants are immune from suit; (4) whether this action is barred by the doctrines of res judicata and collateral estoppel; (5) whether this Court has subject matter jurisdiction over this action; (6) whether Plaintiff can revive her prior lawsuit via Fed. R. Civ. Proc. 60; (7) whether Plaintiff should be permitted leave to amend. RELIEF SOUGHT The USA requests that, in conjunction with an order declaring Plaintiff a vexatious litigant, the Court dismiss all claims against the federal defendants with prejudice. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION AND SUMMARY OF ARGUMENT In 1991, while a graduate student at the University of Toronto, Plaintiff Wanxia Liao, a Canadian citizen, had an academic dispute with one professor Cahill. This event has spawned at least two state court actions, three federal court actions, and numerous appeals (including to the United States Supreme Court), all of which have been resolved against Plaintiff. The history 1

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giving rise to these actions1 is well chronicled in this Court’s multiple orders in Liao v. Cahill, et al., Case No. C 03-2906-SBA, Liao v. Quidachay, et al., Case No. C 05-1888-CW, and Liao v. Ashcroft, et al., Case No. C 08-2776-PJH. This particular action is Plaintiff’s fourth lawsuit in this Court alleging the same elaborate conspiracy to cover up a claimed violation of her self labeled “constitutional” rights. The alleged conspirators include the USA, the Department of Justice, the Department of State, four of this Court’s judges, two court clerk employees, the clerk of the Ninth Circuit, numerous federal government employees and national media organizations. Although Plaintiff has not effected proper service on any federal defendant, the USA moves to dismiss Plaintiff’s FAC for the following reasons: (1) eight months have passed since Plaintiff filed her lawsuit and she refuses to effect service on the federal defendants despite repeated warnings from this Court; (2) the FAC fails to state a claim because, as a non-resident alien and citizen of Canada, she does not have standing to assert rights under this country’s laws; (3) the federal defendants enjoy sovereign, absolute and quasi immunity from suit; (4) Plaintiff’s claims against Judge Armstrong are barred by the doctrines of res judicata and collateral estoppel as the very same claims were adjudicated and dismissed by this Court in 2009; (5) this Court lacks jurisdiction because Plaintiff cannot meet Article III standing. Further, Plaintiff has failed to plead that she exhausted administrative remedies, mandamus jurisdiction and jurisdiction pursuant to the Administrative Procedures Act (“APA”) do not lie here, and this Court lacks jurisdiction over visa entry decisions; (6) Plaintiff cannot revive her prior lawsuit via Rule 60 where she abandoned her appeal of the dismissal of that action, substantially delayed in bringing this purported “independent action,” and has failed to demonstrate the requisite “fraud”; (7) Plaintiff’s complaint is frivolous and delusional and no amendment can cure these fatal flaws. The claims against all federal defendants should be dismissed with prejudice.

The USA summarized the numerous proceedings its previously filed motion to declare Plaintiff a vexatious litigant. Docket Nos. 69, 70, 72. For judicial economy, that summary will not be restated here. The USA requests that the Court take judicial notice of these court records, available on the San Francisco Superior Court website, Pacer and Lexis. Request for Judicial Notice, Carradero Decl., Exs. 1-43. See Fed. R. Evid. 201(d); see also U.S. v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”). 2

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II.

SUMMARY OF FACTS AND PROCEDURAL HISTORY On May 23, 2011, Plaintiff filed the fourth and instant action in this Court. She is

purporting to sue various federal defendants (the USA, the Department of Justice, Attorney General Eric Holder, FBI agent Stephanie Douglas, former U.S. Attorney Joseph Russioniello (identified as “U.S. Attorney for California”), the Honorable Saundra Brown Armstrong, the Honorable Phyllis Hamilton, district court staff “JLM” (identified as “clerk to Judge Armstrong”; known as Jessie Mosley), “Financial Technician” Quelita Bourgeois, and Clerk of the Ninth Circuit, Molly Dwyer), media defendants CNN, Washington Post, Wall Street Journal and Topix.com, and Assistant State Attorney General Kay Yu. Carradero Decl., Exs., 41, 42 (Docket and Complaint). Plaintiff alleges the very same accusations as in her prior cases (a conspiracy between various governments, government employees, lawyers, and the media to violate her “constitutional” rights in dismissing her prior lawsuits and failing to investigate her claimed “human rights cases”) and the same claims for purported “constitutional violations” and “fraud.” Exs. 42 (Complaint). Plaintiff seeks to use the instant action to challenge orders in Case No. 082776 PJH, orders which Plaintiff appealed and subsequently abandoned. Id., (Complaint ¶¶ 1, 58, 35-91); Ex. 40 (order dismissing appeal for failure to prosecute). On November 19, 2011, Plaintiff filed the FAC adding the Honorable William Alsup and the undersigned as defendants based on allegations that the newly named defendants “started to conspire to sabotage [her] case through ways of fraud” because the Court issued an order requiring Plaintiff to personally appear for the Case Management Conference, and because of her displeasure with the rules of e-filing. Id., Ex. 43 (FAC, ¶¶ 84-97). Plaintiff also added the U.S. Department of State and Voice of America as defendants claiming that each “joined the media conspiracy” and refused to post her comments on their websites in violation of her purported right to free speech. Id. (¶¶ 8, 109-118, 136). Plaintiff’s FAC changes the claims and shifts the defendants against whom such claims are brought. For example, Holder, Russioniello and Douglas were said to be Bivens defendants2 in the original complaint for plaintiff’s fourth claim

As is evident from the FAC, it is unclear what claims Plaintiff is trying to allege against which defendants and in which capacities. See e.g., Macon Phillips, “White House Director of New Media,” FAC, ¶¶ 15 (sued in official capacity), 137 (sued in individual capacity); former 3

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for relief, but in the amended complaint are defendants as to plaintiff’s first claim for mandamus relief. Cf Exs. 42 and 43. Plaintiff also appears to attempt to allege a new cause of action purporting to challenge the constitutionality of the Immigration and Nationality Act based upon a claimed inability to enter the United States because she is a foreign national with a criminal record. Id., Ex. 43 (FAC, ¶¶ 11, 139-40). III. LEGAL ARGUMENT A. No Personal Jurisdiction Exists Because Plaintiff Failed To Effect Service.

Plaintiff cannot claim to be unfamiliar with the rules of service. This is her fourth lawsuit brought in a Court that has previously admonished her about defective service and the requirement to personally serve defendants. Docket No. 70, Carradero Decl., Exs. 21-23, 33, 34; see also Docket No. 56 (this Court’s order of December 23, 2011 re service). Despite knowledge of these rules, Plaintiff refuses to comply with them. Carradero Decl.,

13 ¶ 2; Docket No. 20, 63 (no personal service on any individual federal defendant, no service on the 14 U.S. Attorney’s Office, no proper service on any federal agency). More than eight months have 15 passed since Plaintiff filed her lawsuit and more than three months have passed since she filed the 16 FAC. As Plaintiff is long past the 120 day limit set forth in Rule 4, and no good cause possibly 17 exists for such delay, the Court lacks personal jurisdiction over the federal defendants and her 18 claims should be dismissed pursuant to Rule 12(b)(2), (4) and (5). Wei v. Hawaii, 763 F.2d 370, 19 372 (9th Cir. 1985) (upholding dismissal of complaint for failure to serve within 120 day period). 20 21 B. Plaintiff Does Not Have “Constitutional” Rights And Cannot State A Claim.

Courts have long held that the Constitution “does not apply extraterritorially to protect

22 non-resident aliens outside our country.” Ibrahim v. Dep’t of Homeland Security, et al., 2009 U.S. 23 Dist. LEXIS 64619 at *22-23 (N.D. Cal. July 27, 2009). As this Court recently opined, aliens 24 within the United States are entitled to the protection of certain constitutional rights. Id., at 22. 25 However, “[I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has 26 27 28 U.S. Attorney Joseph Russioniello, FAC, ¶¶ 4 (sued in personal capacity), 15 (sued in official capacity). The USA has done its best to reasonably construe Plaintiff’s FAC but does not waive any additional arguments that may be available should Plaintiff provide clarification. As one example, Plaintiffs claims may be barred by the statute of limitations. However, at this time, it remains unclear as Plaintiff has failed to satisfy Rule 8 pleading requirements. 4

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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) (holding the right to a writ of habeas corpus did not extend to enemy aliens captured and imprisoned abroad). Thus, aliens, who are not within the territorial jurisdiction of the United States are not entitled to such protection. Ibrahim, supra, at * 23 (granting federal defendants’ motion to dismiss constitutional claims brought by plaintiff residing in Malaysia) citing U.S. v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (holding Fourth Amendment did not apply to the search and seizure by United States agents of property owned by a Mexican citizen and located in his Mexican residence); see also Cuban American Bar Assoc., et. al., v. Christopher, et al., 43

10 F3d 1412 (11th Cir. 1995) (holding aliens outside of U.S. cannot claim rights to enter or be paroled 11 into U.S. based on the constitution). 12 Here, each of Plaintiff’s ten claims are predicated on a purported violation of

13 “constitutional” rights under the first, fifth and fourteenth amendments. Fatal to these claims, 14 however, is that Plaintiff, an alien residing in Canada (FAC, ¶¶ 12, 15, 86, 91), does not have 15 constitutional rights. Ibrahim, supra. Accordingly, each of Plaintiff’s claims fail to state a claim 16 and should be dismissed with prejudice. 17 18 C. Sections 1981 And 1983 Are Inapplicable To Federal Actors.

Plaintiff’s fourth, fifth, seventh, and eighth causes of action attempt to allege claims under

19 42 USC §§ 1983 and 1985 against the judges and court personnel, the AUSA, the USA, the 20 Department of State, and the White House Media Director. FAC ¶¶ 130-131, 136, 137. 21 In an action under 42 USC § 1983, the first inquiry is whether plaintiff has been deprived

22 of a right secured by the Constitution and laws of the United States. Martinez v. California, 444 23 U.S. 277, 284 (1980). The answer to that question should dispose of the FAC. As set forth 24 above, Plaintiff, as a citizen and resident of Canada, does not have rights secured by the 25 Constitution or other laws of the United States. Accordingly, her statutory civil rights claims are 26 fatally flawed and should be dismissed with prejudice. Ibrahim, supra. 27 Further, on its own terms, section 1983 claims only apply to persons acting under color of

28 state law. 42 U.S.C. § 1983 (“under color of any statute . . . of any State . . .”). The Ninth Circuit

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has repeatedly affirmed that section 1983 is limited to acts taken under color of state law and that federal defendants acting pursuant to federal law cannot be held liable for a claim pursuant to section 1983. “Lest there be any continuing confusion, we take this opportunity to remind the Bar that by its very terms, Section 1983 precludes liability in federal government actors.” Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997); see also Ibrahim v. Chertoff, 538 F3d 1250, 1257 (9th Cir. 2008). Claims brought pursuant to section 1985 also require that the alleged civil rights violation be taken under color of state law. The viability of any Section 1985 claim is premised upon a cognizable Section 1983 claim based on the same allegations. Olsen v. Idaho State Board of Medicine, 363 F.3d 916, 930 (9th Cir. 2004). Here, Plaintiff has not alleged and cannot allege any action taken by federal defendants

11 pursuant to state law. Rather, Plaintiff’s allegations take issue with the acts taken by individual 12 federal defendants in the performance of official duties under federal law.3 Accordingly, 13 Plaintiff’s fourth, fifth, seventh, and eighth causes of action should be dismissed with prejudice. 14 15 16 D. The Federal Defendants Are Immune From Plaintiff’s Frivolous Suit 1. Sovereign Immunity Bars Plaintiff’s Action

Under the doctrine of sovereign immunity, “[t]he United States, as sovereign, is immune

17 from suit save as it consents to be sued...., and the terms of its consent to be sued in any court 18 define that court’s jurisdiction to entertain the suit.” U.S. v. Mitchell, 445 U.S. 535, 538 (1980) 19 (quoting U.S. v. Sherwood, 312 US. 584, 586 (1941). “Absent a waiver, sovereign immunity 20 shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 21 (1994). A federal court lacks subject matter jurisdiction over an unconsented suit against the 22 United States. Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003). An action brought 23 against a federal agency, such as the Department of Justice and Department of State, is effectively 24 25 26 27 28 Plaintiff takes issues with rulings that were made by judges in adjudicating Plaintiff’s complaints. FAC ¶¶ 38-43, 44-49, 61-65, 84-97. She also takes issue with actions that were taken by court personnel in processing Plaintiff’s court actions (e.g., Mosley’s docket entries, FAC ¶¶ 41, 53, 56, 71; Bourgeois rejecting Plaintiff’s district court filing, FAC ¶ 75; Dwyer dismissing Plaintiff’s appeal for failure to prosecute - FAC ¶¶ 72, 74). She alleges no specific facts as to Carradero or Phillips. FAC ¶¶ 96-97, 122, 137. She also does not plead any facts that suggest the alleged actions were not taken during the course of official duties.
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one brought against the United States, and as agencies of the United States, they are entitled to the same sovereign immunity as the United States. Accordingly, Plaintiff’s second, third, seventh and tenth causes of action against these federal defendant agencies and the USA should be dismissed with prejudice. “[S]overeign immunity cannot be avoided by naming officers and employees of the United States as defendants.” Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). “In sovereign immunity analysis, any lawsuit against an agency of the United States or against an officer of the United States in his or her official capacity is considered an action against the United States.” Balser, 327 F.3d at 907. Here, Plaintiff complains of conduct by the individual federal defendants

10 done in their official capacities. See e.g., FAC, ¶¶ 38-65, 72-75, 84-97. As such, the claims 11 against them are claims against the Government for sovereign immunity purposes and this Court 12 lacks subject matter jurisdiction over such claims. Balser, 327 F3d at 909 (existence of Bivens 13 claim does not state a viable cause of action against a U.S. trustee acting in official capacity). 14 The federal defendants should be dismissed from suit for the additional reason that

15 Plaintiff attempts to allege purported “constitutional” claims. However, the Federal Tort Claims 16 Act sets forth the specific limits of where the government has consented to be sued, and Courts 17 have held that this statute does not waive the government’s immunity to suit for damages for 18 constitutional violations. See Meyer, 510 U.S. at 478, 485-86 (“..the United States simply has not 19 rendered itself liable under § 1346(b) for constitutional tort claims.”); Pereira v. United States 20 Postal Serv., 964 F2d 873, 876 (9th Cir. 1992) (“[constitutional torts are, by definition, founded on 21 federal, not state law. Therefore, federal district courts have no jurisdiction over the United States 22 where claims allege constitutional torts.”). Accordingly, sovereign immunity bars Plaintiff’s 23 purported constitutional claims. 24 25 2. Claims Against Judges Are Barred By Absolute Immunity.

“[J]udicial immunity is an immunity from suit, not just from ultimate assessment of

26 damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991); see also Stump v. Sparkman, 435 U.S. 349 27 356-57 (1978) An act is considered “judicial” when it is a function normally performed by a 28 judge and the parties dealt with the judge in his judicial capacity. Stump, 435 U.S. at 362.

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Allegations of conspiracy do not defeat such immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.’” Id., quoting Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496 (1985). A judge lacks immunity only when he or she acts “in the clear absence of all jurisdiction...or performs an act that is not ‘judicial’ in nature.” Id., (internal citation omitted). To determine if an individual acted in an official judicial capacity, a court must analyze whether: “(1) the precise act is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation

10 with the judge in his or her official capacity.” Id., (citation omitted). Here, Plaintiff challenges 11 orders issued by judges in adjudicating the matters pending before them, satisfying each of the 12 four factors above. Accordingly, Plaintiff’s claims against judges Alsup, Armstrong and 13 Hamilton should be dismissed with prejudice.4 14 15 3. Court Employees Enjoy Quasi-Judicial Immunity.

Similarly, court personnel have absolute quasi-judicial immunity when they perform tasks

16 that are an integral part of the judicial process. Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 17 1996); Samuel v. Michaud, 980 F. Supp. 1381, 1403 (D. Idaho 1996) aff'd, 129 F.3d 127 (9th Cir. 18 1997). 19 The Ninth Circuit has repeatedly “extended absolute judicial immunity . . . to court clerks

20 and other nonjudicial officers for purely administrative acts-acts which taken out of context would 21 appear ministerial, but when viewed in context are actually a part of the judicial function.” In re 22 Castillo, 297 F.3d 940, 952 (9th Cir. 2002). In Moore, for example, the Ninth Circuit noted that, 23 “[e]ven if, as [plaintiff] alleges, [the clerk of the court] deceived [plaintiff] regarding the status of 24 the bond and improperly conducted hearings to assess costs, all in coordination with Judge 25 Brewster, such acts would fall within [the clerk’s] quasi-judicial duties and are thus protected by 26 absolute immunity.” 96 F.3d at 1244. Similarly, in Mullis v. United States Bankruptcy Court, the 27 28 The same analysis bars the reinstatement of Plaintiff’s prior suit against the Honorable Claudia Wilken (see discussion re Rule 60 supra).
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Ninth Circuit held that, where, as here, a clerk files or refuses to file a document with the court, he is entitled to quasi-judicial immunity for his actions. 828 F.2d 1385, 1390 (9th Cir. 1987). Here, Plaintiff complains about the quasi-judicial conduct of district court personnel “JLM” in managing the court’s online docket (FAC ¶¶ 41-56, 71), Bourgeois in returning a filing to plaintiff for non-conformance (FAC ¶¶ 75-80), and Clerk of the Ninth Circuit Dwyer in dismissing Plaintiff’s appeal for failure to prosecute. (FAC ¶¶ 73-74). Such actions - an integral part of the judicial process in managing court matters - render them completely immune from liability for their judicial acts. Mullis, supra. Accordingly, the claims against “JLM”, Bourgeois and Dwyer should be dismissed with prejudice. 4. Plaintiff Has Failed To Plead A Claim Against Phillips.

In addition to the immunity and subject matter defects, Plaintiff’s claims against Phillips

12 fail as a matter of basic pleading. Plaintiff appears to allege that Phillips’ title and job as White 13 House Media Director place him “in charge of the White House channel” and further conclusorily 14 alleges that he “participated in the operation of political censorship on [her].” FAC, ¶ 137. 15 However, nowhere in the FAC does Plaintiff specify what conduct Phillips allegedly engaged in 16 in his official or personal capacity that makes him liable to Plaintiff. To the extent Plaintiff 17 attempts to claim that he is liable for some conduct by someone in the White House because he is 18 a supervisor, such a claim fails under Iqbal, where the Supreme Court specifically rejected the 19 argument of “supervisor liability.” Iqbal, 129 S. Ct. at 1949. Accordingly, Plaintiff fails to meet 20 the most basic pleading requirements for any claim against Phillips and her seventh and eight 21 claims against him should be dismissed with prejudice. 22 23 5. Plaintiff Has Failed To Plead A Claim Against AUSA Carradero.

Plaintiff fails to plead any facts about the conduct of AUSA Carradero (see FAC, ¶¶ 84,

24 97, 130), but even if she had, the AUSA is entitled to absolute immunity. Absolute immunity 25 protects government attorneys in administrative and civil proceedings. Butz v. Economou, 438 26 U.S. 478, 516-17 (1978); Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991). Accordingly, the 27 fourth cause of action against AUSA Carradero should be dismissed with prejudice. 28 6. Plaintiff’s Purported Bivens Claim Fails

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a.

The FAC Lacks The Requisite Particularity

Bivens claims must be pled with particularity. Damages claims against government officials alleged to arise from constitutional violations cannot be founded upon conclusory, vague, or general allegations. See, e.g., Pellegrino v. U.S., 73 F.3d 934, 936 (9th Cir. 1996) (requiring “[d]irect personal responsibility”). In addition, the complaint must identify what role, if any, each individual defendant had in causing the alleged constitutional violations. Wong v. U.S., 373 F.3d 952, 966-67 (9th Cir. 2004) (affirming dismissal of complaint with sparse factual allegations). To establish an individual’s liability for a constitutional violation, plaintiff must allege either direct, personal participation in the violation or by “setting in motion a series of acts by others which the

10 actor knows or reasonably should know would cause others to inflict the constitutional injury.” 11 Wong, 373 F.3d at 966 (citations omitted). Bivens actions do not lie against federal agencies or 12 federal agents sued in their official capacities. Ibrahim, 538 F3d at 1257 (dismissing Bivens claim 13 challenging Plaintiff’s placement on a no-fly list). 14 The FAC claims to assert a purported Bivens action “in which Defendant Armstrong,

15 Hamilton, Yu, “jlm”, William Alsup, Bourgeois, Dwyer, Victoria Carradero, together with 16 Defendant CNN, are sued in their personal capacities for their conspiracy to commit criminal 17 fraud, fraud upon the court, denial of Constitutional right to sue and to defend in courts, 18 deprivation of Constitutional due process rights, etc. committed in case # 08-cv-02776 and in this 19 instant case, in violation of § 1985 – conspiracy to interfere with rights; Fifth and Fourteenth 20 Amendment right to due process and to access to court, etc.” FAC ¶ 4. 21 However, the Supreme Court’s recent rulings in Bell Atlantic Corp. v. Twombly, 550 U.S.

22 544, 555 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) have only further enforced 23 the need for precise pleading that goes beyond the “labels and conclusions” Plaintiff offers in her 24 FAC. In these cases, the Supreme Court has implemented a new “plausibility” standard which 25 requires complaints to include “enough facts to state a claim to relief that is plausible on its face.” 26 Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1952 (concluding plaintiff, “...would need to allege 27 more by way of factual content to ‘nudge’ his claim of purposeful discrimination ‘across the line 28 from conceivable to plausible.’”).

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Here, in addition to failing to meet the most basic pleading requirements of Rule 8 (as one of many examples, Plaintiff fails to specify any conduct by purported Bivens defendant AUSA Carradero), Plaintiff’s complaints are also similarly void of allegations to establish the requisite discriminatory or conspiratorial state of mind. See e.g., Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997) (“In order to survive a motion to dismiss, plaintiff alleging a conspiracy to deprive them of their constitutional rights must include in their complaint nonconclusory allegations containing evidence of unlawful intent or face dismissal prior to the taking of discovery.”) Thus, Plaintiff’s purported Bivens claim amounts to no claim at all and should be dismissed. Even If The Bivens Defendants Are Limited To Qualified Immunity, Plaintiff Must At Least Allege Sufficient Facts to Enable the Court to “Protect the Substance of the Qualified Immunity Defense.” Bivens defendants are also entitled to qualified immunity. The Ninth Circuit “has variously characterized the inquiry into qualified immunity as either two-part or three-part.” b.

12 Schwenk v. Hartford, 204 F.3d 1187, 1196 n.5 (9th Cir. 2000). When using the two-part test, the 13 Ninth Circuit first determines whether the defendant violated the plaintiff’s constitutional right, 14 then asks whether the right was clearly established such that it would be clear to a reasonable 15 officer that his conduct was unlawful in the situation he confronted. Inouye v. Kemna, 504 F.3d 16 705, 712 n.6 (9th Cir. 2007) (noting three-part test but adhering to two-part analysis). When using 17 the three-part test, the Ninth Circuit asks whether the facts alleged show the defendant’s conduct 18 violated a constitutional right, whether the right was clearly established at the time of the alleged 19 violation, and then whether it would be clear to a reasonable official that her conduct was 20 unlawful in the situation she confronted. Brown v. Li, 308 F.3d 939, 946-47 (9th Cir. 2002), cert. 21 denied, 538 U.S. 908 (2003). With either test, regardless of whether a constitutional violation 22 occurs, a federal employee should prevail if the right asserted by a plaintiff was not ‘clearly 23 established’ or the officer could have reasonably believed that his particular conduct was lawful. 24 Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). The plaintiff bears the burden of 25 showing that a right is clearly established. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). 26 Moreover, plaintiff must also establish “a particular, rather than abstract, right.” Hufford v. 27 McEnaney, 249 F.3d 1142, 1148 (9th Cir. 2001). 28 Here, as already mentioned above, Plaintiff cannot establish a constitutional right that was

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violated, because she does not have any in the first instance. Further, even if Plaintiff did have such rights, Plaintiff’s FAC falls well short of the pleading standards required to state a Bivens claim as she fails to plead facts to support either the violation of a clearly established standard or that the federal defendants lacked a reasonable belief that their conduct was lawful. Instead, Plaintiff’s FAC is entirely dependent on labels and conclusions such as “constitutional violations” and “deprivation of rights” in attempting to support her claims. Such labels and conclusions are insufficient to state a claim. The Supreme Court has also instructed district courts that they must protect the substance of the qualified immunity defense when considering pre-discovery motions such as this present

10 motion to dismiss. 11 12 13 When a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.

14 Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Consistent with its pronouncement, the 15 Supreme Court has clarified that district courts should resolve the threshold issue of whether a 16 defendant is entitled to qualified immunity before permitting discovery. Id. Plaintiff’s FAC does 17 nothing to inform this Court of the facts it must resolve prior to allowing this case to move 18 forward, i.e. whether the federal defendants violated a clearly established standard and whether 19 the federal defendants possessed a reasonable belief that their conduct was lawful. As such, the 20 Court should dismiss Plaintiff’s FAC for failure to state a claim with the particularity required. 21 22 or cause of action as the later suit, (b) reached a final judgment on the merits; and (c) involved 23 identical parties or privies. Tahoe-Sierra Preservation Council v. Tahoe Reg. Planning, 322 F.3d 24 25 preclusion “treats a judgment, once rendered, as the full measure of relief to be accorded between 26 the same parties on the same ‘claim’ or ‘cause of action.’ ” Robi v. Five Platters, Inc., 838 F.2d 27 318, 321 (9th Cir. 1988). “Issue preclusion refers to the effect of a judgment in foreclosing 28 relitigation of a matter that has been litigated and decided. This effect also is referred to as direct 1064, 1077 (9th Cir. 2003); Sidhu v. Flecto Co., 279 F3d 896, 900 (9th Cir. 2002). Claim E. Res Judicata/Collateral Estoppel Bar Plaintiff’s Claims Against Armstrong. Res judicata acts as a bar where there was an earlier suit that (a) involved the same “claim”

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or collateral estoppel.” Migra v. Warren City School Distr., Bd. Of Educ., 465 U.S. 75, 77 n.1 (1984). The doctrine of issue preclusion prevents relitigation of all “issues of fact or law that were actually litigated and necessarily decided” in a prior proceeding. Robi, 838 F.2d at 322. Here, Plaintiff’s present suit against Judge Armstrong is virtually identical to her previous lawsuit dismissed on substantive grounds - namely, judicial immunity. Carradero Decl., Ex. 32, (Amended Complaint ¶¶ 20, 86-88), Ex. 37 (order of dismissal). Plaintiff appealed the dismissal, and then abandoned her appeal when she failed to pay the fees or challenge the Ninth Circuit’s dismissal of her case for failure to prosecute. Id., Ex. 39, 40 (Docket and Order). In the interests of avoiding repetitious litigation, Plaintiff’s claims against Judge Armstrong should be dismissed

10 with prejudice under the doctrines of res judicata and collateral estoppel.5 11 12 13 F. Plaintiff Does Not Meet Article III Requirements 1. Plaintiff Lacks Standing And No Live Ripe Controversy Exists.

Standing is “an essential and unchanging part of the case or controversy requirement of

14 Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish “a case or 15 controversy” within the meaning of Article III, a plaintiff must show she has suffered (1) an injury 16 in fact that is (a) concrete and particularized and (b) actual or imminent, not conjenctural or 17 hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) 18 that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable 19 20 21 22 23 24 25 26 27 28 Similarly, the DOJ and FBI have litigated the same claims and issues with Plaintiff before. In plaintiff’s prior district court action, 08-2776 PJH, Plaintiff alleged that former Attorney Generals Ashcroft and Gonzalez, FBI Director Mueller, and FBI agent Brazilian were involved in the same conspiracy and violated her purported constitutional rights by failing to investigate her complaints. Carradero Decl., Ex. 31 (Complaint, ¶¶ 6-12, 35-60), Ex. 32, (Amended Complaint ¶¶ 6-12, 38-62). However, Plaintiff failed to serve these defendants and violated multiple court orders regarding service, resulting in the court dismissing her case as to these defendants with prejudice pursuant to Fed. R. Civ. Proc. 41(b). Id., Ex. 33-34. Plaintiff appealed that ruling, but abandoned it by failing to pay the docketing fees, resulting in its dismissal. Id., Ex. 39, 40 (Docket, Order). Plaintiff did not appeal the Ninth Circuit’s decision. Id., Ex. 39. Being forever barred from bringing an action against these defendants, Plaintiff now tries to circumvent the dismissal by bringing a new action alleging the very same issues and claims but naming different DOJ and FBI personnel - specifically, Attorney General Holder, former U.S. Attorney Russoniello, and FBI agent Douglas. Id., Ex. 43, FAC ¶¶ 23-34; 81-83, 98-118. This trickery should not be condoned.
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decision. Id., 504 U.S. at 560-61; see also Simon v. E. Kentucky, 426 U.S. 26, 44 (1976) (“unadorned speculation will not suffice to invoke the federal judicial power”). Plaintiff bears the burden of establishing each of the required elements of standing. In order to establish subject matter jurisdiction over a declaratory relief claim, plaintiffs bear the burden of establishing that an “actual controversy” existed at, and has continued since, the time they filed this action. See 28 U.S.C. § 2201; Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1157 (9th Cir. 2007) (“When presented with a claim for a declaratory judgment, ... federal courts must take care to ensure the presence of an actual case or controversy, such that the judgment does not become an unconstitutional advisory opinion.”). Here, Plaintiff appears to claim that her purported “constitutional” rights have been

11 violated because the government, its agencies and officials have not “investigated” or vindicated 12 her “human rights case.” However, as discussed above, Plaintiff, as a citizen of Canada residing 13 outside of this territory (who has apparently never stepped foot in this country, even to prosecute 14 her numerous frivolous lawsuits and appeals), does not have “constitutional” rights, and therefore, 15 does not have standing to assert “constitutional” claims that amount to a justiciable case or 16 controversy. Because Plaintiff does not have constitutional rights, she also cannot establish the 17 requisite connection between alleged injury and the conduct complained of. Additionally, 18 Plaintiff’s claims are neither concrete nor particularized, but rather are delusional and fantastic 19 attempting to allege an implausible conspiracy between various governments, agencies, judges, 20 court personnel, other individuals, and the media. Further, it is impossible that Plaintiff’s 21 purported injury will be redressed by a favorable decision in this action because she has no 22 constitutional rights for this court to vindicate and her delusional complaint makes it self evident 23 that her allegations are implausible on their face; no FBI investigation is required to come to that 24 logical conclusion. Plaintiff’s claims are also not ripe as to the Immigration and Nationality Act 25 because she has not pled that she has applied for and been denied entry into the United States. 26 Moveover, as discussed below, Plaintiffs’ apparent failure to exhaust administrative remedies and 27 present this court with a final decision available for judicial review demonstrates that the ripeness 28 requirement is not met. Thus, she lacks standing and her complaints should be dismissed. North Carolina v. Rice, 14

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404 U.S. 244, 246 (1971) (“federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.”). 2. This Court Lacks Subject Matter Jurisdiction For Additional Reasons a.

Plaintiff Has Failed To Plead That She Has Exhausted Administrative Remedies The FTCA timing requirements set forth in 28 U.S.C. § 2401(b) are strict, jurisdictional and may not be waived. Marley v. U.S., 567 F.3d 1030, 1038 (9th Cir. 2009). Here, Plaintiff has failed to plead facts to demonstrate that she exhausted her administrative remedies in a timely fashion and brought suit within the required time periods. Indeed, her complaint appears to indicate that her claims are time barred, having filed and received responses regarding unclear

10 “administrative appeals” back in 2007 and 2008 and “a negligence administrative claim to the 11 DOJ on February 10” (year unknown), which was rejected. FAC, ¶¶ 32-34, 81. It is Plaintiff’s 12 burden to demonstrate that she has complied with prerequisites to suit. She has not met this 13 burden. Accordingly, the FAC should be dismissed. 14 15 Mandamus Jurisdiction and Review Under the Administrative Procedures Act Are Not Available Here Relief under mandamus and the Administrative Procedures Act (“APA”) are virtually b.

16 equivalent when a party seeks to compel an agency to act on a nondiscretionary duty. Xiao v. 17 Gonzalez, 2007 U.S. Dist. LEXIS 69789 at *6 (N.D.Cal. September 10, 2007). Mandamus relief 18 is an “extraordinary” remedy. Pittson Coal Group v. Sebben, 488 U.S. 105, 121 (1988). “The 19 common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy 20 for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes 21 him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). “A write of 22 mandamus is appropriately issued only when (1) the plaintiffs claim is ‘clear and certain’; (2) the 23 defendant official’s duty to act is ministerial, and ‘so plainly prescribed as to be free from doubt’; 24 and (3) no other adequate remedy is available. Barrno v. Reich, 13 F.3d 1370, 1374 (9th Cir. 25 1994). 26 “The APA authorizes suit by ‘[a] person suffering legal wrong because of agency action,

27 or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 28 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702). Under the APA, final agency action is subject to judicial review if there is no other adequate remedy in 15

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court. 5 U.S.C. §§ 704. As with a writ of mandamus, the APA “empowers a court only to compel an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, without directing how it shall act,” and an APA claim “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Id., at 64. “[T]he only action that can be compelled under the APA is action legally required.” Id (emphasis original). An exception for judicial review under the APA is made for action “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). “Such action is unreviewable for there is simply ‘no law to apply.’” Clementson v. Brock, 806 F2d 1402, 1404 (9th Circ. 1986). “An agency’s decision not to take enforcement action should be presumed immune from judicial review under §

10 701(a)(2).” Id., at 832. 11 As best as the USA can ascertain from the state of the nonsensical FAC, Plaintiff seeks

12 mandamus relief against Holder, Russionello6, and Douglas to “compel the US Department of 13 Justice (DOJ) officials to perform their mandatory duties owed to [her] to investigate [her] 14 allegations of crime...”, though she pleads no specific facts pertaining to these individuals. FAC 15 ¶¶, 1, 119-122. Plaintiff also apparently seeks “judicial review under 5 USC § 702 as to whether 16 the US criminal law enforcement agencies DOJ, FBI, US Attorneys, etc. have deprived and are 17 still continuing to deprive [her] 14th Amendment right to equal protection under US criminal 18 justice Laws by their continuous refusals to investigate felony crimes committed against [her].” 19 FAC ¶¶, 3. This refusal to investigate is the predicate for Plaintiff’s first, second and third causes 20 of action. FAC, ¶¶ 119-129. 21 Just as the Court lacks personal and subject matter jurisdiction to hear Plaintiff’s action, it

22 also lacks mandamus jurisdiction and the ability to conduct review under the APA. First, 23 Plaintiff’s claims are not clear and certain. Indeed, the nonsensical and delusional nature of 24 Plaintiff’s complaint shows that the issues are far from clear. Second, no federal defendant owes 25 Plaintiff a ministerial, clearly defined and peremptory duty to investigate her far-fetched 26 allegations. Plaintiff fails to plead the existence of any law, rule or regulation that requires any 27 28 As mentioned previously, Mr. Russionello has not been the U.S. Attorney since at least July 2010, long prior to Plaintiff’s filing of this action. There is no live controversy between Plaintiff and Mr. Russionello and no outstanding duty the Court could compel him to perform. 16
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government entity or official to investigate her allegations or restricts the government’s exercise of discretion in determining which issues warrant investigation and enforcement and which do not. Third, even if such a duty existed, the government’s purported duty to investigate Plaintiff’s self-proclaimed “human rights case” is not merely “nondiscretionary” or “ministerial.” Rather, decisions with regard to enforcement action are immune from judicial review. Dees v. CSY, Hayward, et al., 33 F. Supp. 2d 1190, 1198-1200 (N.D. Cal. 1998) (granting U.S. Department of Labor and Department of Justice’s motions to dismiss plaintiff’s complaint alleging conspiracy and failure to investigate plaintiffs complaints finding no jurisdiction under the APA and concluding that decisions to forego enforcement action are immune from judicial review); see

10 also Texas v. USA, 106 F3d 661,. 667 (5th Cir. 1997) (allegation that federal defendants failed to 11 enforce immigration laws not subject to judicial review: “An agency’s decision not to take 12 enforcement actions is unreviewable under APA because a court has no workable standard against 13 which to judge the agency’s exercise of discretion....Real or perceived inadequate enforcement of 14 immigration laws does not constitute a reviewable abdication of duty.”). Accordingly, mandamus 15 jurisdiction and jurisdiction under the APA do not lie. 16 17 This Court Lacks Jurisdiction Over Plaintiff’s Tenth Cause of Action Challenging the Immigration and Nationality Act. Plaintiff claims that 8 U.S.C. § 1182 setting forth the inadmissibility of aliens who have c.

18 committed certain criminal offenses is unconstitutional because it deprives her of “free access to 19 the courts.” FAC, ¶ 139. As stated above, Plaintiff does not have rights under this country’s 20 Constitution. Further, while Plaintiff does not allege that she has actually sought and been denied 21 entry in to the United States, and thus she lacks standing and does not have a ripe claim as 22 discussed above, even if she had, this Court lacks jurisdiction over any decision to grant or deny 23 Plaintiff a visa to enter this country pursuant to the doctrine of consular nonreviewability. El24 Hadad v. U.S., 377 F.Supp.2d 42, 46 (D.D.C. 2005) (holding that Court lacked power to review 25 the decision to exclude alien petitioner, who had initiated a civil action in the U.S. regarding his 26 employment, from the U.S.); see also Capistrano v. Dep. of State, 267 Fed. Appx. 593, 2008 WL 27 466181 at *1 (9th Cir. 2008); Wong v. Leavitt, 2008 U.S. Dist. LEXIS 49816 at *2 (E.D.Cal. June 28 27, 2008). Similarly, the Attorney General’s decision to admit or exclude an alien is “final and conclusive.” U.S., ex rel. Knauff. v. Shaughnessy, 338 U.S. 537, 543 (1950). It is therefore “not 17

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within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Id. Further, any attempt by Plaintiff to claim that entry restrictions deny her due process must be rejected as the Supreme Court has already held that such claims lack merit. Knauff, 338 U.S. at 542 and 544 (“Admission of aliens to the United States is a privilege granted by the sovereign United States Government....only upon such terms as [it] shall prescribe.”; “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”). Thus, Plaintiff’s tenth cause of action should be dismissed with prejudice. G. Plaintiff Cannot Revive Her Claims Via Rule 60.

The FAC claims to bring an “independent action” pursuant to Rule 60(b). FAC, ¶¶ 5-7.

11 However, only motions are brought pursuant to Rule 60(b) and independent actions are brought 12 pursuant to Rule 60(d). Regardless of the label, her claims fail. 13 Rule 60(b)(3) provides that on motion, the court may relieve a party from a final judgment,

14 order, or proceeding for “fraud... misrepresentation, or misconduct of an opposing party.” Fed. R. 15 Civ. Proc. 60(b)(3). “To prevail, the moving party must prove by clear and convincing evidence 16 that the verdict was obtained through fraud, misrepresentation, or other misconduct and the 17 conduct complained of prevented the losing party from fully and fairly presenting the defense.” 18 Casey v. Alberton’s Inc., 362 F .3d 1254, 1260 (9th Cir. 2004). Rule 60(b)(3) “is aimed at 19 judgments which were unfairly obtained, not at those which are factually incorrect.” De Saracho 20 v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000). Rule 60(b)(3) “require[s] that 21 fraud...not be discoverable by due diligence before or during the proceedings.” Casey, 362 F.3d at 22 1260. A motion under Rule 60(b) must be made within a reasonable time and no more than a year 23 after the entry of the judgment or order of the date of the proceeding. Fed. R. Civ. Proc. 60(c)(1). 24 In Casey, 362 F .3d at 1256, the Ninth Circuit affirmed the one year filing limit for relief from 25 judgment under Rule 60 “is an outer limit,” and that waiting until “the last possible day” was 26 unreasonable and unjustified. 27 An independent action under Rule 60(d) “should be available only to prevent a grave

28 miscarriage of justice.” U.S., v. Beggerly, 524 U.S. 38, 47 (1998). The term “fraud on the court” in Rule 60(d)(3) is read narrowly to mean “only that species of fraud which does or attempts to, 18

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defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003). Here, the FAC falls far short of these standards. As an initial matter, to the extent Plaintiff purports to bring this matter pursuant to section 60(b), her claim fails because she does not allege misconduct by an opposing party in her prior action. Rather, with the exception of Judge Armstrong (who may not be sued again herein based on the doctrines of res judicata and estoppel - see discussion infra at section III.E), Plaintiff seeks to identify new defendants who played some role in her prior action, but were not named as

10 defendants in that action (i.e., Clerk of the Ninth Circuit Molly Dwyer dismissing her appeal of 11 dismissal order in 08-2776 PJH). As to Judge Armstrong, her claims are barred by the doctrines 12 of res judicata and collateral estoppel, discussed above at section III. E. Further, any action 13 pursuant to Rule 60(b) is untimely, as Plaintiff exceeded even the “outer limit” of the one-year 14 filing deadline, filing her action on May 23, 2011 – 23-24 months after this Court’s dismissals in 15 March-April 2009 and 20 months after dismissal of her appeal on September 30, 2009. Carradero 16 Decl., Exs. 34,36, 37, 40. 17 Nor does Plaintiff allege adequate grounds to invoke Rule 60. Plaintiff’s FAC alleges

18 three bases for relief under Rule 60: (1) the order in Case No. 07-2776 PJH dismissing her action 19 for failure to effect service was allegedly erroneous and “procured by fraud”; (2) Bourgeois 20 refused to file Plaintiff’s independent action on May 11, 2010 “on a fraudulent” basis; (3) Ninth 21 Circuit Clerk Dwyer dismissed Plaintiff’s appeal “on a fraudulent ground regarding the payment 22 of the appeal.” FAC, ¶¶ 5-7. However, these are nothing more than frivolous quibbles that 23 Plaintiff has about legitimate actions and rulings taken against her in the processing of her actions, 24 far from the type of conduct that Rule 60(d) was meant for. 25 Further, while Plaintiff self labels her allegations as “fraud” and “conspiracy,” she has

26 failed to properly plead such claims. Aguilera v. Pirelli Armstrong Tire Corp., 223 F3d 10109 (9th 27 Cir. 2000) (elements of fraud); Vieux v. East Bay Regional Park Distr., 906 F2d 1330 (9th Cir. 28 1990) (elements of civil conspiracy). Nor can she credibly do so. Here, Plaintiff does no more than conclusorily allege some fantastic fraud and conspiracy without providing any supporting 19

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facts. Her action is an abuse of Rule 60 and should be dismissed. H. Plaintiff’s Complaint Is Incoherent, Nonsensical, And Delusional.

Under Rule 12(b)(6), “a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations.” Bureerong v. Uvawas, 922 F. Supp. 1450, 1462 (C. D. Cal. 1996); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (noting that a court need not “swallow the plaintiff’s invective hook, line and sinker; bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited”). This particular Court has dismissed pro se complaints if they are incoherent, nonsensical or delusional. See e.g., Adams v. Vidiera, 2001 WL

10 277966 (N.D. Cal. Mar. 16, 2001); Stoddard Estate v. Pinkerton Sec. Serv., 1997 WL 732549 11 (N.D. Cal. Nov. 12, 1997); Spychala v. Gomez, 1994 WL 679889 (N.D. Cal. Dec. 1, 1994). Here, 12 Plaintiff’s complaints are implausible on their face, doing nothing more than retell the same 13 delusional tale of a grand conspiracy against her. Plaintiff’s repeated meritless and non-sensical 14 filings and “motions” strongly suggests that it is very unlikely that permitting Plaintiff to amend 15 her complaint will clarify her claims and the factual basis upon which they rest. Hishon v. King & 16 Spalding, 467 U.S. 69, 73 (1984) (complaint may be dismissed for failure to state a claim if it 17 appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that 18 would entitle him to relief). “For the sake of judicial economy,” her complaints should be 19 dismissed with prejudice. See Adams, supra. 20 IV. 21 CONCLUSION This action - like the many before it - demonstrate that Plaintiff cannot establish any legal

22 claim on any set of facts. As there are no plausible grounds to support a claim for relief, the FAC 23 should be dismissed with prejudice. 24 25 DATED: March 1, 2012 26 27 28 ________/s/________________ Victoria R. Carradero Assistant United States Attorney Attorneys for the United States of America Respectfully submitted, MELINDA HAAG United States Attorney

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