USA.motion.dismiss.reply.2

8/2/2019 USA.motion.dismiss.reply.2

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MELINDA HAAG (SBN 132612)United States AttorneyJOANN M. SWANSON (SBN 88143)Chief, Civil DivisionVictoria R. Carradero (SBN 217885)Assistant United States Attorney

450 Golden Gate Avenue, Box 36055San Francisco, California 94102Telephone: (415) 436-7181Facsimile: (415) 436-6748Email: [email protected]

Attorneys for the United States of America

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

WANXIA LIAO,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

))))))))))

)))))

No. C-11-2494 JSW

UNITED STATES OF AMERICASREPLY BRIEF IN SUPPORT OFMOTION TO DISMISS PLAINTIFFSFIRST AMENDED COMPLAINTFED. R. CIV. P. 12(b)(1)(2)(4)(5)(6)

Date: April 6, 2012

Time: 9:00 a.m.Location: Courtroom 11, 19 Floorth

Judge: Honorable Jeffrey S. White

Case3:11-cv-02494-JSW Document86 Filed03/22/12 Page1 of 16


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I. LEGAL ARGUMENT

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

Plaintiff contends that Rule 4's service requirements do not apply and that the Hague

convention controls. Opp., Sec. IV. This contention is incorrect and her citation to Brockmeyerv. May, 383 F3d 798 (9 Cir. 2004) does not support her proposition. Opp., 22. Plaintiff doesth 1

not cite to any case to support the Hague Conventions replacement of Rule 4's service

requirements for defendants within a judicial district of the United States. Further, as Rule 4

makes clear, there are specific rules for service on the United States, and its Agencies,

Corporations, Officers and Employees, admittedly none of which Plaintiff followed, and for

which no exception is made for the Hague Convention. Fed. R. Civ. Proc. 4(i);see also 1993

amendments to Rule 4(i).

Plaintiffs contention that she need not serve the FAC allegedly because all federal

defendants have appeared before the Court through the undersigned also fails. Opp 25.

Plaintiff would know this had she attended the Case Management Conference.

Plaintiff next claims that she properly served the U.S. Attorneys office because she

served on Joseph Russioniello who had just ceased to be U.S. Attorney for California when

[she] made the service and the offices receipt of the complaint is sufficient whether the mail

was addressed to Joseph Russioniello or Haag matters nothing. Opp 26. Plaintiff is incorrect.

Plaintiff named Mr. Russioniello as a defendant in his official and personal capacities

InBrockmeyer, the plaintiffs attempted to serve process on an English defendant by1

using ordinary first class mail to send a summons and complaint from the United States to

England. 383 F.3d at 799. The Ninth Circuit concluded that while the Hague Convention does

not prohibit service of process by international mail, in order for it to be effective in federal

court, it must also be affirmatively authorized by some provision in federal law. Id. The Ninth

Circuit confirmed the obvious - that Rule 4 governs service of process in federal court - andconcluded that plaintiffs attempted service failed because they failed to follow the requirements

of Rule 4(f) (serving an individual in a foreign country). Id. Rule 4(f), however, does not even

apply here because the federal defendants whom Plaintiff is required to serve reside in a judicial

district of the United States, where as Rule 4(f) is for service of process on an individual at a

place not within any judicial district of the United States. Fed. R. Civ. Proc. 4(f); see also 1993

Amendments to Rule 4 (confirming Rule 4(f) pertains to service on parties outside of the United

States).

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(Complaint 4, 15, 124). Thus, she was required to effect personal service on him, which she

did not do, andserve the United States. Fed. R. Civ. Proc. 4(1)(3). Further, Rule 4(i)(1)(A)(i)

and (ii) is clear about service on the U.S. Attorney, which Plaintiff also failed to comply with.

Additionally, Plaintiff did not attempt service until October 2011. By that time, Mr. Russioniellohad not just ceased being the U.S. Attorney; he had not held that office for nearly a-year-and-a-

half. Even as of the time that Plaintiff filed the original complaint in May 2011 - he had not been

the U.S. Attorney for nearly a year. Accordingly, as Plaintiff has not served the U.S. Attorney,

she has failed to effect service on all federal defendants.

As to the new defendants, (the undersigned, Judge Alsup, the Department of State),

Plaintiffs claim that she is still within the time to serve and when to serve is entirely [her]

procedural right that shall not be interfered by anyone, also fails. Opp., 25. Plaintiff filed her

original Complaint on May 23, 2011, but did not attempt defective service until October 2011,

afterexpiration of the 120 day period set forth in Rule 4(m). Plaintiff then filed the FAC on

November 19, 2011, and again, failed to serve it within the 120 day time period. To salvage her

FAC from the required dismissal, Plaintiff claims that actual receipt of the service of process is

not required citingLidas, Inc., v. U.S. 238 F.3d 1076 (2001). Rule 4 makes no such exception.

Further,Lidas is inapposite as it does not interpret Rule 4. Id., at 1082.

In order for Plaintiff to avoid dismissal for failure to effect service within the time period

set forth in Rule 4, she must demonstrate good cause. Boudette v. Barnette, 923 F.2d 754, 7562

(9 Cir. 1991) (upholding dismissal ofpro se complaint for failure to timely serve as required byth

Rule 4). This Circuit has held that good cause, at a minimum, means excusable neglect must be

demonstrated. Id. Where a plaintiff fails to demonstrate good cause, the Court must dismiss the

action without prejudice against that defendant or order that service be made within a specified

time. See Fed. R. Civ. P. 4(m) (emphasis added);see also Efaw v. Williams, 473 F.3d 1038,

In addition, a plaintiff may also be required to show the following: (a) the party2

required to be served receive actual notice of the lawsuit; (b) the defendant would suffer no

prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.

Boudette, 923 F.3d at 756. Plaintiff cannot meet these additional requirements. See Docket No.

63 (no signature for Douglas, Dwyer, Holder, Phillips, Russionello, etc.). Nor has she

demonstrated that she will be severely prejudiced if her complaint is dismissed.

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1040 (9th Cir. 2007). Plaintiff makes no attempt to demonstrate good cause. Rather, she

stubbornly insists that neither Rule 4 nor this Courts orders requiring her to effect service apply

because they are fraudulent and part of a meticulously planned plot. Opp., 28, 30, 31.

According to Plaintiff, issuance of the Orders was interference with her procedural rightsbecause under the rules, [she has] the freedom to serve anytime within the time period stipulated

by rules. Id. Such contentions fall well short of the good cause required to survive dismissal3

for failure to comply with Rule 4. Wei v. Hawaii, 763 F.2d 370, 372 (9 Cir. 1985) (upholdingth

dismissal of complaint for failure to serve within 120 day period; noting plaintiff failed to show

he was prevented from effecting service within the 120 day limit by factors beyond his

control). This Court has already ordered that service be made within a specified time and

warned Plaintiff that if she did not, her action would be dismissed. Docket No. 56. Plaintiff

refused to abide by the Courts Order and the 120 day time limit has passed.

B. Plaintiff Does Not Have Constitutional Rights And Cannot State A Claim.

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

resident of Canada, does not have constitutional rights. Plaintiff appears to contend that merely4

by bringing suit in this countrys courts, she is now a beneficiary of this countrys constitution and

Plaintiff also claims that Defendants were bound to respond to [her] Complaint within3

the stipulated time and cites to the USAs Administrative Motion seeking an order shortening

time on the vexatious litigant motion and enlarging time for any federal defendant to respond to

the complaint. Opp. 32. Plaintiffs contention is misplaced. The USA submitted the

Administrative Motion seeking an enlargement of time, assuming that Plaintiff will have

affected proper service. See Docket No. 43 (emphasis added). As Plaintiff admittedly chose not

to effect service during the pendency of the motions, as already recognized by the Court (Docket

No. 56), the deadline to respond never began to run under Rule 12.

Such authorities included this Courts order inIbrahim v. Dept of Homeland Security,4

et al., 2009 U.S. Dist. LEXIS 64619 at *22-23 (N.D. Cal. July 27, 2009), which confirmed that,[I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has been at

pains to point out that it was the aliens presence within its territorial jurisdiction that gave the

judiciary power to act. Id., quoting Johnson v. Eisentrager, 339 U.S. 763, 771 (1950). The

Ninth Circuit recently issued an opinion reversing this order inIbrahim v. Dept of Homeland

Security, et. al., 2012 U.S. App. LEXIS 2457 (9 Cir. 2012). No mandate on that order has issuedth

and the government was granted an extension until April 25, 2012 to file a petition for rehearing

or rehearing en banc. As discussed infra, even under the Ninth Circuits opinion in Ibrahim,

Plaintiff cannot be found to have constitutional rights.

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other laws. Opp. 14. Indeed, Plaintiff claims that once [she comes] within the jurisdiction of

the courts, [she has] been subject to the jurisdiction thereof the United States, and become its

citizen for 14 Amendment equal protection clause purposes. Id. The mere fact of filing ath 5

lawsuit does not make one a citizen or alien within the jurisdiction of the United States forpurposes of extraterritorial application of the Constitution and other federal laws. If that were the

case, anyone anywhere in the world - no matter how tenuous there connection to this country -

could become a citizen for 14 Amendment equal protection purposes (Opp. 14) simply byth

filing a lawsuit. Such a scenario would obliterate the body of authority regarding citizenship and

entry into this country, as well as the body of constitutional law regarding aliens, as each would be

rendered unnecessary: such rights would be automatically conferred simply by the filing of

litigation.

Plaintiff seeks to turn Article III on its head by claiming that the courts powers to hear a

matter grants her rights under the Constitution in the first instance. Other than her frivolous

lawsuits, Plaintiff has no connection with this country. She does not reside here and has not

stepped foot in this country , even to prosecute her actions. Plaintiffs rights - if any - are limited6

to those set forth in the Federal Rules of Civil and Appellate procedure. To the extent that she

took issue with the rulings in her case, her rights were limited to appealing those rulings. In re

Thomas, 508 F.3d 1225, 1227 (9 Cir. 2007). Rather than pursue such appeals, she chose toth

abandon them. Carradero Decl., Ex. 39, 40. She now seeks to utilize the fact of her vexatious

litigation to claim that she has the right to sue various federal actors for purported constitutional

violations for actions taken in her district court actions, and for the governments lack of criminal

investigation into said actions. Plaintiff has not cited one case - and the undersigned is not aware

of any - that supports such a far-fetched proposition.

This contradicts Plaintiffs past filings asserting ad nauseum that the Court acted without5

jurisdiction with regard to her. Carradero Decl., Ex. 14-43.

Plaintiff claims that at some point she was in this country and cites to a declaration.6

However, no declaration was submitted. Rather, Plaintiff submitted a brief opposing a motion to

strike in one of her prior federal court actions. See Docket No. 85. The brief is not a declaration

or in a form to constitute any kind of evidence. Civ. Local Rule 7-5. The brief also does not

establish that Plaintiff has been in the U.S. territory at any time since at least 1997, if even then.

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C. Sections 1983 And 1985 Are Inapplicable To Federal Actors.

Plaintiffs fourth, fifth, seventh, and eighth causes of action attempt to allege claims under

42 USC 1983 and 1985 against the judges and court personnel, the AUSA, the USA, the

Department of State, and the White House Media Director Phillips. FAC 130-131, 136, 137.The USA moved to dismiss these claims on the grounds that: (1) Plaintiff cannot demonstrate

there has been a deprivation of a right secured by the Constitution and laws of the United States;

and (2) that sections 1983 and 1985 require actions taken under color of state law.

As to the first issue, Plaintiff claims that her filing of a lawsuit in district court grants her

constitutional rights. Opp., 34. This argument fails for the reasons set forth above in section

I.B. This argument fails for the additional reason that - even assuming arguendo that Plaintiff has

constitutional rights - she has not sufficiently alleged a deprivation of a constitutional right. There

is no constitutional right to file frivolous lawsuits; there is no constitutional right to invoke

taxpayer resources of the FBI and demand investigation of allegations; and there is no

constitutional right for a non-resident alien to enter this country.

As to the second issue, Plaintiff fails to allege any sufficiently close nexus between the

State and the challenged actions of the federal defendants to transform the actions of the federal

defendants into that of the State itself. Indeed, the only alleged state defendant is Deputy

Attorney General of California Kay Yu, whom this Court found to be immune from suit.

Carradero Decl., Ex. 38. As to Yu, Plaintiff appears to contend that in her prior federal court

action, 08-2776, Yu allegedly falsified a court record by filing a declination to proceed before a

magistrate judge on behalf of former U.S. Attorney General John Ashcroft; it was corrected on the

ECF docket to reflect the proper party, Yu; the correction was an alleged conspiracy between

Judge Armstrong, Judge Hamilton and jlm, to mislead Plaintiff into not serving him, resulting

in dismissal of her Complaint. FAC, 37-71. Plaintiff contends that by conclusorily alleging

that federal defendants conspired with federal officials, Yu, and media Defendants to deprive

her rights she has sufficiently pled a claim under section 1983 and 1985. Opp. 35-36. The

authorities compel the opposite conclusion.7 Plaintiffs allegations taken together and

Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir. 1997) (Lest7

there be any continuing confusion, we take this opportunity to remind the Bar that by its very

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individually fall severely short of demonstrating state action by any of these individuals.

Further, Plaintiff fails to allege any facts to demonstrate state action by any other federal

defendant. See FAC;see also Carradero Decl., Ex. 35 ( prior Order explaining Plaintiffs failure

to allege sufficient 1983 and 1985 cause of action involving the media and government).Plaintiffs allegations take issue with the acts taken by federal defendants in the

performance of official duties under federal law. FAC 38-43, 44-49, 53, 56, 61-65, 71-75, 84-

97. Such allegations are insufficient. West v. Atkins, 487 U.S. 42, 49 (1988) (a defendant has

acted under color of state law when he or she has exercised power possessed by virtue of state

law and made possible only because the wrongdoer is clothed with authority of state law.);

Franklin v. Fox, 312 F.3d 423, 444 (9 Cir. 2002) (Section 1983 attaches only to individualsth

who carry a badge of authority of a State and represent it in some capacity.) (citation omitted).

As both section 1983 and 1985 require that the alleged civil rights violation be taken under color

of state law, Olsen v. Idaho State Board of Medicine, 363 F.3d 916, 930 (9th Cir. 2004), and

Plaintiff has failed to plead such facts (and Rule 11 precludes her from being able to do so), her

fourth, fifth, seventh, and eighth causes of action should be dismissed with prejudice.

D. Plaintiff Cannot Overcome Immunity Of Federal Defendants

1. Sovereign Immunity Bars Plaintiffs Action

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

claims are not barred by the doctrine of sovereign immunity because they are for declaratory

terms, Section 1983 precludes liability in federal government actors.); see also Lin v. Potter,

2001 U.S. Dist. LEXIS 9050 (N.D. Cal., January 22, 2011) (Under section 1983, a plaintiff may

sue state officials acting under color of state law for violating certain federal constitutional rights,

but a plaintiff must sue federal officials acting under color of federal law underBivens). Morse

was decided five years afterCabrera, cited by Plaintiff. That case does not help Plaintiff. In

Cabrera v. Martin, 973 F.2d 735 (1992), the Ninth Circuit held that [f]ederal officials do not

become state actors unless the State has for insinuated itself into a position of interdependence

with...[the federal officials] that it must be recognized as a joint participant in the challenged

activity. Id., at 742 quotingKlteschka v. Driver, 411 F.2d 436 (1969) (purpose of 1983 was

to provide a remedy when federal rights have been violated through the use or misuse of a power

derived from a State). The Ninth Circuit further noted that the touchstone is ultimately

whether there is a sufficiently close nexus between the State and the challenged action of the

[federal actors] so that the action of the latter may be fairly treated as that of the State itself. Id.,

quoting Jackson v. Metropolitan Edison Co., 419U.S. 345, 351 (1974). No such nexus is pled

here.

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relief. Opp., 38. However, 28 U.S.C. 2201 does not provide for a waiver of sovereign

immunity. Burns Ranches, Inc., v. U.S. Department of the Interior, et al., 2011 U.S. Dist. LEXIS

137239 at *5 (D. Ore., November 29, 2011). The fact that a court may grant declaratory relief

against any type of defendant in a case otherwise within the courts jurisdiction does not imply, letalone expressly state, that the United States has waived its immunity for all declaratory relief

claims. Id., citing Cal Shock Trauma Air Rescue v. State Compensation Ins. Fund, 636 F.3d 538,

543 (9 Cir. 2011). Thus, the Declaratory Judgment Act in no way modifies the district courtsth

jurisdiction. Id. The operation of the Declaratory Judgment Act is procedural only, which

means it should not be considered a grant of jurisdiction (citation omitted)and cuts sharply

against treating it as a waiver of sovereign immunity.Burns Ranches, supra, citing Brownell v.

Ketcham Wire & Mfg., 211 F.2d 121, 128 (9 Cir. 1954) ([T]he Declaratory Judgment act....isth

not a consent of the United States to be sued, and merely grants an additional remedy in cases

where jurisdiction already exists in court.). Plaintiff impliedly recognizes this problem because8

in response, she relies on the Administrative Procedures Act (APA). Opp., 38-39. However,

as discussed in section III. F1 and F2 of the USAs opening brief at pp. 13-18, jurisdiction under

the APA does not lie for the numerous reasons stated therein. Plaintiff did not address these

arguments. The claims against the USA and its agencies should be dismissed on the grounds of

immunity as set forth in the moving papers.

Plaintiffs remaining claims against the individual federal actors are also barred: Similarly,

as Plaintiff complains of conduct by the individual federal defendants done in their official

Further, sovereign immunity and subject matter jurisdiction are distinct concepts. U.S.8

v. Park Place Assocs., Ltd., 563 F.3d 907, 923 (9 Cir. 2009). A waiver of sovereign immunityth

means the United States is amenable to suit in a court properly possessing jurisdiction; it does not

guarantee a forum. Id., Conversely, the mere existence of a forum does not waive sovereign

immunity. Id., at 924. A statute may create subject matter jurisdiction yet not waive sovereign

immunity. Id.;see also Jachetta v. U.S., 653 F.3d 898, 903 (9 Cir. 2011) (citing with approvalth

the explanation inPark Place of the relationship between sovereign immunity and subject

matter jurisdiction.) For this reason, even assuming 2201 granted jurisdiction (which it does

not) it would not be accurate to jump there to a conclusion that 2201 necessarily waives

sovereign immunity. Burns Ranches, 2011 U.S. Dist. LEXIS 137239 at *9-10;see also David

Laughing Horse Robinson, v. Salazar, 2012 U.S. Dist. LEXIS 5422 (E.D. Cal., January 18,

20012) (Section 2201, alone, does not waive sovereign immunity).

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capacities,see e.g., FAC, 38-65, 72-75, 84-97, such claims against them are claims against the

Government for sovereign immunity purposes and this Court lacks subject matter jurisdiction over

such claims. See Balser v. DOJ, 327 F.3d 903, 909 (9th Cir. 2003) (existence ofBivens claim

does not state a viable cause of action against a U.S. trustee acting in official capacity) andauthorities cited at moving brief, at p. 7. The federal defendants should be dismissed from suit for

the additional reason that the Federal Tort Claims Act (FTCA) sets forth the specific limits of

where the government has consented to be sued, and Courts have held that this statute does not

waive the governments immunity to suit for damages for constitutional violations. See FDIC v.

Meyer, 510 U.S. 478, 485-86 (1994); Pereira v. United States Postal Serv., 964 F2d 873, 876 (9th

Cir. 1992). Plaintiff does not address these arguments or authorities. Opp., Sec. VI. As

sovereign immunity bars Plaintiffs purported constitutional claims, each should be dismissed

with prejudice.

2. Claims Against Judges Are Barred By Absolute Immunity.

The USAs opening brief set forth authority that the judicial defendants are absolutely

immune from suit. See section III.D.2. Plaintiff does not address any of these legal authorities or

cite any legal authorities. Opp., 40-42. Rather, she conclusorily alleges these judicial

Defendants conducts are non-judicial acts, - extra-judicial crimes and frauds. Id., 41. Such

conclusions do not save Plaintiffs claims. Washington v. Alameda County Social Services, et al.,

2007 U.S. Dist. LEXIS 37696 (N.D. Cal., May 9, 2007) (despite conclusory allegation that

judicial defendants acted in clear absence of jurisdiction, complaint challenged judicial acts,

such as court orders and manner in which hearings were conducted, thus, dismissal on grounds of

immunity was warranted). As discussed in the USAs opening brief, an act is considered

judicial when it is a function normally performed by a judge and the parties dealt with the judge

in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978). Allegations of conspiracy

do not defeat such immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9 Cir. 1986). Neither doth

allegations of bad faith or malice. Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judge alleged to

have ordered officers to bring attorney to his courtroom and to use excessive force protected by

judicial immunity). Here, the conduct alleged in the FAC meets the standards for official judicial

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conduct conduct set forth inAshelman: (1) the acts complained of were normal judicial functions

(e.g., issuance of court orders, case management ); (2) the events occurred in the courtroom; (3)9

the controversy centered around Plaintiffs case then pending before the judge; and (4) the events

at issue arose directly and immediately out of a confrontation with the judges in their officialcapacity. Ashelman, 793 F.2d at 1078. Plaintiff disagrees with the actions , but such10

disagreement does not justify depriving that judge of his immunity. Stump, 435 U.S. at 363-64.

Plaintiffs claims against all of the judges should be dismissed with prejudice.

3. Court Employees Enjoy Absolute Quasi-Judicial Immunity.

The USAs opening brief set forth the authority that the court employee defendants are

entitled to absolute quasi-judicial immunity. See section III.D.3. Plaintiff does not appear to have

addressed this issue. See Opp. To the extent that Plaintiff incorporated her arguments into her

scant argument regarding the judicial defendants, Opp., 40-42, her claims fail for similar

See also Samuel v. Michaud, 980 F. Supp. 1381, 1403 (D. Idaho 1996)(Rulings on9

motion, witnesses, recusals, hearing dates, stay of proceedings, certification of employees,

preparation of orders, and settlement negotiations are all judicial acts within the ambit of judicial

immunity) aff'd, 129 F.3d 127 (9th Cir. 1997). To the extent plaintiff asserts that the actions by

the judges were in complete absence of jurisdiction, she has alleged no such supporting facts.

See FAC. Further, a plain reading compels only the conclusion that the judicial conduct alleged

was well within the courts jurisdiction. See e.g., 28 U.S.C. 2071 (authorizing courts toprescribe for the conduct of court business); Fed. R. Civ. Proc. 83 (authorizing rules and

directives by district courts); Fed. R. Civ. Proc. 41(b) (providing for dismissal for failure to

comply with rules or a court order); Fed. R. Civ. Proc. 16(f) (authorizing court to issue sanctions

and any just orders for a partys failure to appear at a conference or obey an order); Fed. R.

Civ. Proc. 37(b) (authorizing sanctions for failure to abide by courts discovery order). For

example, Plaintiff takes issue with Judge Alsups denial of her request to continue the Case

Management Conference or appear by phone. FAC, 86-92. However, 28 U.S.C. 2071

grants the courts wide authority to adopt rules for conducting its business. Further, Local Rule

16-2 provides for the courts latitude in scheduling case management conferences. Local Rule

16-10 also provides for the requirement of attendance by the parties.

As the Ninth Circuit noted inMullis, 828 F2d 1385, 1394 (9 Cir. 1987), Congress has10 th

provided carefully structured procedures for taking appeals, including interlocutory appeals, and

for petitioning for extraordinary writs in Title 28 of the United States Code. Through these

procedures, a litigant, such as [Plaintiff], receives full federal court review of allegations or

deprivations of federal constitutional rights by federal judicial officers acting under color of

federal law. Like the plaintiff in Mullis, Plaintiff made more than ample use of these

procedures. Carradero Decl., Exs. 14-41.

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reasons. Court personnel have absolute quasi-judicial immunity when they perform tasks that are

an integral part of the judicial process. Moore v. Brewster, 96 F.3d 1240, 1244 (9 Cir. 1996);th

Mullis, 828 F.2d 1385 (9 Cir. 1987) (filing or refusing to file a document protected by judicialth

immunity); Samuel, 980 F. Supp. at 1403 (dismissing claims against judges and court personnelalleged to have engaged in a conspiracy to predetermine the outcome of the case on the grounds of

immunity) aff'd, 129 F.3d 127 (9th Cir. 1997). Here, the actions complained of are an integral

part of the judicial process in managing court matters and thus, render the court personnel11

completely immune from liability for their judicial acts. Mullis, supra; see also Ilaw v. U.S., 2012

U.S. Dist. LEXIS 24352 (N.D. Cal., February 27, 2012) (court personnels conduct in failing to

take action to seal court records and being rude to plaintiff protected by absolute quasi-judicial

immunity). Even if the Court were to find that any of the acts taken by the court personnel were

mistakes or in excess of jurisdiction, quasi-judicial immunity would not be abrogated, even if it

results in grave procedural errors.Mullis, 828 F.2d at 1390 quoting Stump, 435 U.S. at 359.

Further, the Ninth Circuit has repeatedly extended absolute quasi-judicial immunity...to court

clerks and other non-judicial officers for purely administrative acts-acts which taken out of

context would appear ministerial, but when viewed in context are actually a part of the judicial

function. Curry v. Castillo (in Re Castillo), 297 F.3d 940, 951-52 (9 Cir. 2002). Accordingly,th

the claims against JLM, Bourgeois and Dwyer should be dismissed with prejudice.

4. Plaintiff Cannot Plead A Claim Against Phillips.

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

he is liable for such operation because of his position... Opp., 43. As discussed in the moving

brief, in addition to insufficient pleading, this is precisely the theory of liability that the Supreme

Court rejected as a matter of law inAshcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Brief, III.D.5.

Plaintiffs seventh and eighth claims against Phillips should be dismissed with prejudice.

As one example, Plaintiff complains that Dwyer improperly dismissed her appeal for11

failure to prosecute. FAC, 7, 72-74. However, Ninth Circuit Rule 42-1 authorizes the clerk to

dismiss cases for failure to prosecute.

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Twombly, 550 U.S. at 555;Iqbal, 129 S. Ct. at 1952. Both are particulary instructive in light of

the allegations here. In Twombly, the plaintiffs attempted to allege a conspiracy. 550 U.S. at 555.

The Supreme Court concluded that allegations of an unlawful agreement were legal conclusions

not entitled to an assumption of the truth.Id. The Supreme Court next addressed the nub of thecomplaint - the factual allegation of parallel behavior - to determine if it gave rise to a plausible

suggestions of conspiracy. Id., at 565-66. The court held that the well-pleaded fact of parallel

conduct, accepted as true, did not plausibly suggest an unlawful agreement or conspiracy. Id., at

570. InIqbal,plaintiff attempted to allege aBivens claim that his constitutional rights had been

violated on account of his race and national origin. Iqbal, 129 S.Ct. at 1942. The Supreme Court

rejected Plaintiffs conclusion that the actions taken were race based, holding that the lack of

factual allegations to show a discriminatory state of mind did not make it plausible to find such

a discriminatory state of mind. Id. at 1952. The Supreme Court concluded: He would need to

allege more by way of factual content to nudge his claim of purposeful discrimination across

the line from conceivable to plausible.Id. at 1952 (citing Twombly).

Similarly here, Plaintiffs complaint is void of allegations to establish the requisite

discriminatory or conspiratorial state of mind for a Bivens claim. See FAC, 83 ( The only

reason for this denial of my right can only be because of my race, that I am a person of ethnic

Chinese, fighting against the racial persecution on me by this system.); See FAC generally

(conclusory allegations of conspiracy and fraud without providing any sufficient facts to

establish any part of the elements for such a claim). Iqbal, 129 S.Ct., at 1951 (It is the

conclusory nature of respondents allegations, rather than their extravagantly fanciful nature, that

disentitles them to the presumption of truth). As such, the Court should dismiss Plaintiffs

purported Bivens claims for failure to state a claim.13

E. Res Judicata/Collateral Estoppel Bar Plaintiffs Claims Against Armstrong.

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

As discussed in the moving brief, even if the Court were to find that the federal13

defendants were not entitled to absolute immunity, they are entitled to qualified immunity under

the two part and three part tests set forth by the Ninth Circuit and this court must protect the

substance of the qualified immunity defense. Brief, p . III.D.6.b at pp. 11-12. Plaintiff does not

appear to have addressed these arguments.

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Opp., 56. Plaintiff cites no authority. Nor is her allegation plausible when she appealed that

action. Carradero Decl., Ex. 39, 40. That decision became final and binding when Plaintiff failed

to pursue her appeal. Id.; Fed. R. App., Proc. 40. Plaintiffs claims against Judge Armstrong

should be dismissed with prejudice.

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F. Plaintiff Does Not Meet Article III Requirements

1. Plaintiff Lacks Standing And No Live Ripe Controversy Exists.

The USAs moving brief set forth why Article III requirements are not met here. Brief,

III.F at pp. 13-17. Plaintiffs response in this regard is not clear. Plaintiff only rebuttal appears to

claim that jurisdiction is present because the preamble to a claimed Attorneys Generals

Guidelines document allegedly requires the FBI to investigate criminal violations of federal law.

Opp., 51-52. Aside from failing to provide the court with the document, cite where it is

located, the year promulgated, purpose, scope or effect, nowhere does Plaintiff cite to any rule,

law or regulation - in that alleged document or elsewhere - that requires the FBI to conduct an

investigation into every allegation of a federal crime or confers any right on any person to invoke

the scarce resources of the government to investigate criminal allegations. As such, this

document does not provide Plaintiff with the requisite standing or this Court with the requisite

jurisdiction. North Carolina v. Rice, 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 ExhaustedAdministrative Remedies

According to her civil case cover sheet, Plaintiff seeks $3,000,000 for the alleged acts by

the USA, the governments agencies, and various federal actors in their official capacity. Plaintiff

claims that the Complaint is not brought pursuant to the FTCA. Opp., 54. However, as

previously discussed, the United States, as sovereign, is immune from suit save as it consents to

be sued. U.S. v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA sets forth the limited manner in

which the government consents to be sued. 28 U.S.C 2675(a);see also Iwal, supra, (allegations

As discussed in the USAs moving papers, the DOJ and FBI have been named in14

Plaintiffs prior actions for the same claims and issues before. Brief, p. 13, fn. 5. Plaintiff does

not deny this.

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based on purported negligence, harassment, or retaliation of federal court personnel

governed by FTCA). Accordingly, as Plaintiff has not complied with the FTCA, the FAC should

be dismissed.

b. Mandamus Jurisdiction and Review Under the AdministrativeProcedures Act Are Not Available HereAs far as Defendant can ascertain from Plaintiffs FAC, the claimed refusal to investigate

her human rights case is the predicate for her first, second and third causes of action. FAC,

119-129. The USAs moving brief set forth the similar standards for the extraordinary relief of

mandamus and relief under the APA. Brief, III.F.2.b. Plaintiff does not appear to have addressed

these arguments. See Opp., For the reasons stated in the moving brief, jurisdiction does not lie.

c. This Court Lacks Jurisdiction Over Plaintiffs Tenth Cause ofAction Challenging the Immigration and Nationality Act.

The USAs moving brief set forth the authorities that preclude Plaintiff from challenging

8 U.S.C. 1182 setting forth the inadmissibility of aliens who have committed certain criminal

and this Courts inability to hear any such claim. Brief, III.F.2.c. Plaintiffs response to these

arguments and authorities is not decipherable. Opp., 53. She does not address the authorities

cited by the USA and does not cite any authorities. Plaintiffs tenth cause of action should be

dismissed with prejudice for the reasons stated in the USAs moving brief.

G. Plaintiff Cannot Revive Her Claims Via Rule 60.

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

2776 PJH dismissing her action for failure to effect service was allegedly erroneous and procured

by fraud ; (2) Bourgeois refused to file Plaintiffs independent action on May 11, 2010 on a15

fraudulent basis; (3) Ninth Circuit Clerk Dwyer dismissed Plaintiffs appeal on a fraudulent

ground regarding the payment of the appeal. FAC, 5-7. The USAs moving brief set forth

the standards for motions and actions under Rule 60 and why Plaintiffs FAC fell way short.

Brief, III.G at pp. 18-19. Plaintiffs only rebuttal is that her complaint should not be dismissed

because the Court must accept as true the allegation that Bourgeois engaged in fraud on the

court for rejecting her filing and that such conduct was not permitted by Rule 5 regarding the

Plaintiff already raised this issue with the Court via motions for investigation of the15

docket and a motion for relief, both of which were denied. Carradero Decl., Ex. 30 (Docket - see

entries 55 and 81 seeking investigation of docket and Rule 60 relief from order re service; Ex. 36

(Order on plaintiffs motions).

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service and filing of pleadings. Opp., 55. This contention must be rejected. As discussed

above, Iqbaland Twombly require proper factual pleading to meet the plausibility standard and

rejects the notion of accepting the truth of legal conclusions. Plaintiff labels her allegations

fraud but fails to provide any factual support demonstrating even one element of fraud.Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9 Cir. 2003). Her action is anth

abuse of Rule 60 and should be dismissed.

H. Plaintiffs Complaint Is Incoherent, Nonsensical, And Delusional.

As discussed in the USAs moving brief at Section III.H. at p. 20, under Rule 12(b)(6), a

court need not accept as true unreasonable inferences, unwarranted deductions of fact, or

conclusory legal allegations cast in the form of factual allegations. Bureerong v. Uvawas, 922 F.

Supp. 1450, 1462 (C. D. Cal. 1996). Plaintiff makes no attempt to distinguish her complaint from

those this Court has previously dismissed. One no look further than any one allegation or any one

claim for relief to demonstrate the nonsensical and delusional nature of Plaintiffs complaint

requiring dismissal. The FAC should be dismissed with prejudice. Hishon v. King & Spalding,16

467 U.S. 69, 73 (1984) (complaint may be dismissed for failure to state a claim if it appears

beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would

entitle him to relief).

II. CONCLUSION

The FAC should be dismissed with prejudice.

Respectfully submitted,

DATED: March 22, 2012 MELINDA HAAGUnited States Attorney

________/s/________________Victoria R. CarraderoAttorneys for United States of

America

See FAC, 75 (purported death threat on internet posting), 124 (The silence of the16

government is an admission that this person is actually a government insider, and he was

speaking for the government), 126 (Apparently, this perpetrator spoke for the government, and

got protection from the government, these are evidences that his threats are a government action,

or at least a government backed up action. Either way, the US government is responsible for

these death threats and threats of forced disappearance against me).


Documents

USA.motion.dismiss.reply.2