USA's motion to dismiss my action

8/2/2019 USA's motion to dismiss my action

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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 AMERICASNOTICE OF MOTION AND MOTIONTO DISMISS PLAINTIFFSCOMPLAINT AND FIRST AMENDEDCOMPLAINT FED. R. CIV. P.12(b)(1)(2)(4)(5)(6)

Date: April 6, 2012Time: 9:00 a.m.Location: Courtroom 11, 19 Floorth

Judge: Honorable Jeffrey S. White

Case3:11-cv-02494-JSW Document83 Filed03/01/12 Page1 of 27


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TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

NOTICE OF MOTION AND MOTION TO DISMISS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1ISSUES TO BE DECIDED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. INTRODUCTION AND SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 1

II. SUMMARY OF FACTS AND PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . 3

III. LEGAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. No Personal Jurisdiction Exists Because Plaintiff

Failed To Effect Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Plaintiff Does Not Have Constitutional Rights

And Cannot State A Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Sections 1981 And 1983 Are Inapplicable

To Federal Actors... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

D. The Federal Defendants Are Immune From

P l a i n t i f f s F r i v o l o u s S u i t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. Sovereign Immunity Bars Plaintiffs Action. . . . . . . . . . . . . . . . . . 6

2. Claims Against Judges Are Barred By

Absolute Immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. Court Employees Enjoy Quasi-Judicial Immunity.. . . . . . . . . . . . . 8

4. Plaintiff Has Failed To Plead A Claim Against Phillips... . . . . . . . 9

5. Plaintiff Has Failed To Plead A Claim Against

AUSA Carradero.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

6. Plaintiffs Purported Bivens Claim Fails. . . . . . . . . . . . . . . . . . . . 10

a. The FAC Lacks The Requisite Particularity. . . . . . . . . . . 10

b. Even If The Bivens Defendants Are Limited

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To Qualified Immunity, Plaintiff Must At Least

Allege Sufficient Facts to Enable the Court to

Protect the Substance of the Qualified Immunity

Defense... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11E. Res Judicata/Collateral Estoppel Bar Plaintiffs

Claims Against Armstrong.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. Plaintiff Does Not Meet Article III Requirements. . . . . . . . . . . . . . . . . . . 13

1. Plaintiff Lacks Standing And No Live Ripe

Controversy Exists.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. This Court Lacks Subject Matter Jurisdiction

For Additional Reasons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

a. Plaintiff Has Failed To Plead That She Has Exhausted

Administrative Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . 15

b. Mandamus Jurisdiction and Review Under the

Administrative

Procedures Act Are Not Available Here .. . . . . . . . . . . . . 15

c. This Court Lacks Jurisdiction Over Plaintiffs

Tenth Cause of Action Challenging the Immigration

and Nationality Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

G. Plaintiff Cannot Revive Her Claims Via Rule 60... . . . . . . . . . . . . . . . . . 18

H. Plaintiffs Complaint Is Incoherent, Nonsensical,

And Delusional.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IV. 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). . . . . . . . . . . . . . . . . 19Appling 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, 10Ibrahim 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 (9 Cir. 1987). . . . . . . . . . . 8, 9th

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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Stump 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 waivingany 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

I. 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

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giving rise to these actions is well chronicled in this Courts multiple orders inLiao v. Cahill, et1

al., Case No. C 03-2906-SBA,Liao v. Quidachay, et al., Case No. C 05-1888-CW, andLiao v.

Ashcroft, et al., Case No. C 08-2776-PJH. This particular action is Plaintiffs fourth lawsuit in

this Court alleging the same elaborate conspiracy to cover up a claimed violation of her selflabeled constitutional rights. The alleged conspirators include the USA, the Department of

Justice, the Department of State, four of this Courts 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 Plaintiffs 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 countrys laws;

(3) the federal defendants enjoy sovereign, absolute and quasi immunity from suit; (4) Plaintiffs

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)

Plaintiffs 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 declare1

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. 08-

2776 PJH, orders which Plaintiff appealed and subsequently abandoned. Id., (Complaint 1, 5-

8, 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). Plaintiffs 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 defendants in the original complaint for plaintiffs fourth claim2

As is evident from the FAC, it is unclear what claims Plaintiff is trying to allege against2

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

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for relief, but in the amended complaint are defendants as to plaintiffs first claim for mandamus

relief. CfExs. 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 criminalrecord. 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 Courts order of December 23, 2011 re service).

Despite knowledge of these rules, Plaintiff refuses to comply with them. Carradero Decl.,

2; Docket No. 20, 63 (no personal service on any individual federal defendant, no service on the

U.S. Attorneys Office, no proper service on any federal agency). More than eight months have

passed since Plaintiff filed her lawsuit and more than three months have passed since she filed the

FAC. As Plaintiff is long past the 120 day limit set forth in Rule 4, and no good cause possibly

exists for such delay, the Court lacks personal jurisdiction over the federal defendants and her

claims should be dismissed pursuant to Rule 12(b)(2), (4) and (5). Wei v. Hawaii, 763 F.2d 370,

372 (9 Cir. 1985) (upholding dismissal of complaint for failure to serve within 120 day period).th

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

non-resident aliens outside our country.Ibrahim v. Dept of Homeland Security, et al., 2009 U.S.

Dist. LEXIS 64619 at *22-23 (N.D. Cal. July 27, 2009). As this Court recently opined, aliens

within the United States are entitled to the protection of certain constitutional rights. Id., at 22.

However, [I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has

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 Plaintiffs 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.

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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)

(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 UnitedStates 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

F3d 1412 (11 Cir. 1995) (holding aliens outside of U.S. cannot claim rights to enter or be paroledth

into U.S. based on the constitution).

Here, each of Plaintiffs ten claims are predicated on a purported violation of

constitutional rights under the first, fifth and fourteenth amendments. Fatal to these claims,

however, is that Plaintiff, an alien residing in Canada (FAC, 12, 15, 86, 91), does not have

constitutional rights. Ibrahim, supra. Accordingly, each of Plaintiffs claims fail to state a claim

and should be dismissed with prejudice.

C. Sections 1981 And 1983 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. FAC 130-131, 136, 137.

In an action under 42 USC 1983, the first inquiry is whether plaintiff has been deprived

of a right secured by the Constitution and laws of the United States. Martinez v. California, 444

U.S. 277, 284 (1980). The answer to that question should dispose of the FAC. As set forth

above, Plaintiff, as a citizen and resident of Canada, does not have rights secured by the

Constitution or other laws of the United States. Accordingly, her statutory civil rights claims are

fatally flawed and should be dismissed with prejudice. Ibrahim, supra.

Further, on its own terms, section 1983 claims only apply to persons acting under color of

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 alsoIbrahim v.

Chertoff, 538 F3d 1250, 1257 (9 Cir. 2008). Claims brought pursuant to section 1985 alsoth

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

pursuant to state law. Rather, Plaintiffs allegations take issue with the acts taken by individual

federal defendants in the performance of official duties under federal law. Accordingly,3

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

D. The Federal Defendants Are Immune From Plaintiffs Frivolous Suit

1. Sovereign Immunity Bars Plaintiffs Action

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

from suit save as it consents to be sued...., and the terms of its consent to be sued in any court

define that courts jurisdiction to entertain the suit. U.S. v. Mitchell, 445 U.S. 535, 538 (1980)

(quoting U.S. v. Sherwood, 312 US. 584, 586 (1941). Absent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475

(1994). A federal court lacks subject matter jurisdiction over an unconsented suit against the

United States. Balser v. Dept of Justice, 327 F.3d 903, 907 (9 Cir. 2003). An action broughtth

against a federal agency, such as the Department of Justice and Department of State, is effectively

Plaintiff takes issues with rulings that were made by judges in adjudicating Plaintiffs3

complaints. FAC 38-43, 44-49, 61-65, 84-97. She also takes issue with actions that were

taken by court personnel in processing Plaintiffs court actions (e.g., Mosleys docket entries,

FAC 41, 53, 56, 71; Bourgeois rejecting Plaintiffs district court filing, FAC 75; Dwyer

dismissing Plaintiffs 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, Plaintiffs 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

done in their official capacities. See e.g., FAC, 38-65, 72-75, 84-97. As such, the claims

against them are claims against the Government for sovereign immunity purposes and this Court

lacks subject matter jurisdiction over such claims.Balser, 327 F3d at 909 (existence ofBivens

claim does not state a viable cause of action against a U.S. trustee acting in official capacity).

The federal defendants should be dismissed from suit for the additional reason that

Plaintiff attempts to allege purported constitutional claims. However, the Federal Tort Claims

Act 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 Meyer, 510 U.S. at 478, 485-86 (..the United States simply has not

rendered itself liable under 1346(b) for constitutional tort claims.); Pereira v. United States

Postal Serv., 964 F2d 873, 876 (9 Cir. 1992) ([constitutional torts are, by definition, founded onth

federal, not state law. Therefore, federal district courts have no jurisdiction over the United States

where claims allege constitutional torts.). Accordingly, sovereign immunity bars Plaintiffs

purported constitutional claims.

2. Claims Against Judges Are Barred By Absolute Immunity.

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

damages. Mireles v. Waco, 502 U.S. 9, 11 (1991);see also Stump v. Sparkman, 435 U.S. 349

356-57 (1978) 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, 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

(9 Cir. 1986). Judicial immunity applies however erroneous the act may have been, andth

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 heor 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 judges 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

with the judge in his or her official capacity. Id., (citation omitted). Here, Plaintiff challenges

orders issued by judges in adjudicating the matters pending before them, satisfying each of the

four factors above. Accordingly, Plaintiffs claims against judges Alsup, Armstrong and

Hamilton should be dismissed with prejudice.4

3. Court Employees Enjoy Quasi-Judicial Immunity.

Similarly, 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.th

1996); Samuel v. Michaud, 980 F. Supp. 1381, 1403 (D. Idaho 1996) aff'd, 129 F.3d 127 (9th Cir.

1997).

The Ninth Circuit has repeatedly extended absolute judicial immunity . . . to court clerks

and other nonjudicial 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. In re

Castillo, 297 F.3d 940, 952 (9 Cir. 2002). InMoore, for example, the Ninth Circuit noted that,th

[e]ven if, as [plaintiff] alleges, [the clerk of the court] deceived [plaintiff] regarding the status of

the bond and improperly conducted hearings to assess costs, all in coordination with Judge

Brewster, such acts would fall within [the clerks] quasi-judicial duties and are thus protected by

absolute immunity. 96 F.3d at 1244. Similarly, inMullis v. United States Bankruptcy Court, the

The same analysis bars the reinstatement of Plaintiffs prior suit against the Honorable4

Claudia Wilken (see discussion re Rule 60supra).

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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 (9 Cir. 1987).th

Here, Plaintiff complains about the quasi-judicial conduct of district court personnel

JLM in managing the courts online docket (FAC 41-56, 71), Bourgeois in returning a filingto plaintiff for non-conformance (FAC 75-80), and Clerk of the Ninth Circuit Dwyer in

dismissing Plaintiffs 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, Plaintiffs claims against Phillips

fail as a matter of basic pleading. Plaintiff appears to allege that Phillips title and job as White

House Media Director place him in charge of the White House channel and further conclusorily

alleges that he participated in the operation of political censorship on [her]. FAC, 137.

However, nowhere in the FAC does Plaintiff specify what conduct Phillips allegedly engaged in

in his official or personal capacity that makes him liable to Plaintiff. To the extent Plaintiff

attempts to claim that he is liable for some conduct by someone in the White House because he is

a supervisor, such a claim fails underIqbal, where the Supreme Court specifically rejected the

argument of supervisor liability. Iqbal, 129 S. Ct. at 1949. Accordingly, Plaintiff fails to meet

the most basic pleading requirements for any claim against Phillips and her seventh and eight

claims against him should be dismissed with prejudice.

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,

97, 130), but even if she had, the AUSA is entitled to absolute immunity. Absolute immunity

protects government attorneys in administrative and civil proceedings. Butz v. Economou, 438

U.S. 478, 516-17 (1978);Fry v. Melaragno, 939 F.2d 832, 837 (9 Cir. 1991). Accordingly, theth

fourth cause of action against AUSA Carradero should be dismissed with prejudice.

6. Plaintiffs 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 individuals 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

actor knows or reasonably should know would cause others to inflict the constitutional injury.

Wong, 373 F.3d at 966 (citations omitted). Bivens actions do not lie against federal agencies or

federal agents sued in their official capacities. Ibrahim, 538 F3d at 1257 (dismissing Bivens claim

challenging Plaintiffs placement on a no-fly list).

The FAC claims to assert a purportedBivens action in which Defendant Armstrong,

Hamilton, Yu, jlm, William Alsup, Bourgeois, Dwyer, Victoria Carradero, together with

Defendant CNN, are sued in their personal capacities for their conspiracy to commit criminal

fraud, fraud upon the court, denial of Constitutional right to sue and to defend in courts,

deprivation of Constitutional due process rights, etc. committed in case # 08-cv-02776 and in this

instant case, in violation of 1985 conspiracy to interfere with rights; Fifth and Fourteenth

Amendment right to due process and to access to court, etc. FAC 4.

However, the Supreme Courts recent rulings inBell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) andAshcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) have only further enforced

the need for precise pleading that goes beyond the labels and conclusions Plaintiff offers in her

FAC. In these cases, the Supreme Court has implemented a new plausibility standard which

requires complaints to include enough facts to state a claim to relief that is plausible on its face.

Twombly, 550 U.S. at 555;Iqbal, 129 S. Ct. at 1952 (concluding plaintiff, ...would need to allege

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

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), Plaintiffs 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(9 Cir. 1997) (In order to survive a motion to dismiss, plaintiff alleging a conspiracy to depriveth

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,

Plaintiffs purportedBivens claim amounts to no claim at all and should be dismissed.

b. Even If The Bivens Defendants Are Limited To Qualified Immunity,Plaintiff Must At Least Allege Sufficient Facts to Enable the Courtto 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.

Schwenk v. Hartford, 204 F.3d 1187, 1196 n.5 (9th Cir. 2000). When using the two-part test, the

Ninth Circuit first determines whether the defendant violated the plaintiffs constitutional right,

then asks whether the right was clearly established such that it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted. Inouye v. Kemna, 504 F.3d

705, 712 n.6 (9th Cir. 2007) (noting three-part test but adhering to two-part analysis). When using

the three-part test, the Ninth Circuit asks whether the facts alleged show the defendants conduct

violated a constitutional right, whether the right was clearly established at the time of the alleged

violation, and then whether it would be clear to a reasonable official that her conduct was

unlawful in the situation she confronted. Brown v. Li, 308 F.3d 939, 946-47 (9th Cir. 2002), cert.

denied, 538 U.S. 908 (2003). With either test, regardless of whether a constitutional violation

occurs, a federal employee should prevail if the right asserted by a plaintiff was not clearly

established or the officer could have reasonably believed that his particular conduct was lawful.

Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). The plaintiff bears the burden of

showing that a right is clearly established. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).

Moreover, plaintiff must also establish a particular, rather than abstract, right.Hufford v.

McEnaney, 249 F.3d 1142, 1148 (9th Cir. 2001).

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, Plaintiffs FAC falls well short of the pleading standards required to state aBivens

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,Plaintiffs 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

motion to dismiss.

When a plaintiff files a complaint against a public official alleging a claim thatrequires proof of wrongful motive, the trial court must exercise its discretion in away that protects the substance of the qualified immunity defense. It must exerciseits discretion so that officials are not subjected to unnecessary and burdensomediscovery or trial proceedings.

Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Consistent with its pronouncement, the

Supreme Court has clarified that district courts should resolve the threshold issue of whether a

defendant is entitled to qualified immunity before permitting discovery. Id. Plaintiffs FAC does

nothing to inform this Court of the facts it must resolve prior to allowing this case to move

forward, i.e. whether the federal defendants violated a clearly established standard and whether

the federal defendants possessed a reasonable belief that their conduct was lawful. As such, the

Court should dismiss Plaintiffs FAC for failure to state a claim with the particularity required.

E. Res Judicata/Collateral Estoppel Bar Plaintiffs Claims Against Armstrong.Res judicata acts as a bar where there was an earlier suit that (a) involved the same claim

or cause of action as the later suit, (b) reached a final judgment on the merits; and (c) involved

identical parties or privies. Tahoe-Sierra Preservation Council v. Tahoe Reg. Planning, 322 F.3d

1064, 1077 (9 Cir. 2003); Sidhu v. Flecto Co., 279 F3d 896, 900 (9 Cir. 2002). Claimth th

preclusion treats a judgment, once rendered, as the full measure of relief to be accorded between

the same parties on the same claim or cause of action. Robi v. Five Platters, Inc., 838 F.2d

318, 321 (9th Cir. 1988). Issue preclusion refers to the effect of a judgment in foreclosing

relitigation of a matter that has been litigated and decided. This effect also is referred to as direct

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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, Plaintiffs present suit against Judge Armstrong is virtually identical to her previouslawsuit 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 Circuits

dismissal of her case for failure to prosecute. Id., Ex. 39, 40 (Docket and Order). In the interests

of avoiding repetitious litigation, Plaintiffs claims against Judge Armstrong should be dismissed

with prejudice under the doctrines ofres judicata and collateral estoppel.5

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

Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish a case or

controversy within the meaning of Article III, a plaintiff must show she has suffered (1) an injury

in fact that is (a) concrete and particularized and (b) actual or imminent, not conjenctural or

hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3)

that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable

Similarly, the DOJ and FBI have litigated the same claims and issues with Plaintiff5

before. In plaintiffs 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 prejudicepursuant to Fed. R. Civ. Proc. 41(b). Id., Ex. 33-34. Plaintiffappealed 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 Circuits 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

violated because the government, its agencies and officials have not investigated or vindicated

her human rights case. However, as discussed above, Plaintiff, as a citizen of Canada residing

outside of this territory (who has apparently never stepped foot in this country, even to prosecute

her numerous frivolous lawsuits and appeals), does not have constitutional rights, and therefore,

does not have standing to assert constitutional claims that amount to a justiciable case or

controversy. Because Plaintiff does not have constitutional rights, she also cannot establish the

requisite connection between alleged injury and the conduct complained of. Additionally,

Plaintiffs claims are neither concrete nor particularized, but rather are delusional and fantastic -

attempting to allege an implausible conspiracy between various governments, agencies, judges,

court personnel, other individuals, and the media. Further, it is impossible that Plaintiffs

purported injury will be redressed by a favorable decision in this action because she has no

constitutional rights for this court to vindicate and her delusional complaint makes it self evident

that her allegations are implausible on their face; no FBI investigation is required to come to that

logical conclusion. Plaintiffs claims are also not ripe as to the Immigration and Nationality Act

because she has not pled that she has applied for and been denied entry into the United States.

Moveover, as discussed below, Plaintiffs apparent failure to exhaust administrative remedies and

present this court with a final decision available for judicial review demonstrates that the ripeness

requirement is not met.

Thus, she lacks standing and her complaints should be dismissed. North Carolina v. Rice,

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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 ExhaustedAdministrative RemediesThe 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 (9 Cir. 2009). Here, Plaintiff hasth

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

administrative appeals back in 2007 and 2008 and a negligence administrative claim to the

DOJ on February 10 (year unknown), which was rejected. FAC, 32-34, 81. It is Plaintiffs

burden to demonstrate that she has complied with prerequisites to suit. She has not met this

burden. Accordingly, the FAC should be dismissed.

b. Mandamus Jurisdiction and Review Under the AdministrativeProcedures Act Are Not Available Here

Relief under mandamus and the Administrative Procedures Act (APA) are virtually

equivalent when a party seeks to compel an agency to act on a nondiscretionary duty. Xiao v.

Gonzalez, 2007 U.S. Dist. LEXIS 69789 at *6 (N.D.Cal. September 10, 2007). Mandamus relief

is an extraordinary remedy.Pittson Coal Group v. Sebben, 488 U.S. 105, 121 (1988). The

common-law writ of mandamus, as codified in 28 U.S.C. 1361, is intended to provide a remedy

for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes

him a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984). A write of

mandamus is appropriately issued only when (1) the plaintiffs claim is clear and certain; (2) the

defendant officials duty to act is ministerial, and so plainly prescribed as to be free from doubt;

and (3) no other adequate remedy is available. Barrno v. Reich, 13 F.3d 1370, 1374 (9 Cir.th

1994).

The APA authorizes suit by [a] person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the meaning of a relevant statute.

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

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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]heonly 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 (9 Circ. 1986). An agencysth

decision not to take enforcement action should be presumed immune from judicial review under

701(a)(2). Id., at 832.

As best as the USA can ascertain from the state of the nonsensical FAC, Plaintiff seeks

mandamus relief against Holder, Russionello , and Douglas to compel the US Department of6

Justice (DOJ) officials to perform their mandatory duties owed to [her] to investigate [her]

allegations of crime..., though she pleads no specific facts pertaining to these individuals. FAC

, 1, 119-122. Plaintiff also apparently seeks judicial review under 5 USC 702 as to whether

the US criminal law enforcement agencies DOJ, FBI, US Attorneys, etc. have deprived and are

still continuing to deprive [her] 14 Amendment right to equal protection under US criminalth

justice Laws by their continuous refusals to investigate felony crimes committed against [her].

FAC , 3. This refusal to investigate is the predicate for Plaintiffs first, second and third causes

of action. FAC, 119-129.

Just as the Court lacks personal and subject matter jurisdiction to hear Plaintiffs action, it

also lacks mandamus jurisdiction and the ability to conduct review under the APA. First,

Plaintiffs claims are not clear and certain. Indeed, the nonsensical and delusional nature of

Plaintiffs complaint shows that the issues are far from clear. Second, no federal defendant owes

Plaintiff a ministerial, clearly defined and peremptory duty to investigate her far-fetched

allegations. Plaintiff fails to plead the existence of any law, rule or regulation that requires any

As mentioned previously, Mr. Russionello has not been the U.S. Attorney since at least6

July 2010, long prior to Plaintiffs 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.

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government entity or official to investigate her allegations or restricts the governments exercise

of discretion in determining which issues warrant investigation and enforcement and which do

not. Third, even if such a duty existed, the governments purported duty to investigate Plaintiffs

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 Justices motions to dismiss plaintiffs 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

also Texas v. USA, 106 F3d 661,. 667 (5 Cir. 1997) (allegation that federal defendants failed toth

enforce immigration laws not subject to judicial review: An agencys decision not to take

enforcement actions is unreviewable under APA because a court has no workable standard against

which to judge the agencys exercise of discretion....Real or perceived inadequate enforcement of

immigration laws does not constitute a reviewable abdication of duty.). Accordingly, mandamus

jurisdiction and jurisdiction under the APA do not lie.

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

Plaintiff claims that 8 U.S.C. 1182 setting forth the inadmissibility of aliens who have

committed certain criminal offenses is unconstitutional because it deprives her of free access to

the courts. FAC, 139. As stated above, Plaintiff does not have rights under this countrys

Constitution. Further, while Plaintiff does not allege that she has actually sought and been denied

entry in to the United States, and thus she lacks standing and does not have a ripe claim as

discussed above, even if she had, this Court lacks jurisdiction over any decision to grant or deny

Plaintiff a visa to enter this country pursuant to the doctrine of consular nonreviewability. El-

Hadad v. U.S., 377 F.Supp.2d 42, 46 (D.D.C. 2005) (holding that Court lacked power to review

the decision to exclude alien petitioner, who had initiated a civil action in the U.S. regarding his

employment, from the U.S.);see also Capistrano v. Dep. of State, 267 Fed. Appx. 593, 2008 WL

466181 at *1 (9 Cir. 2008); Wong v. Leavitt, 2008 U.S. Dist. LEXIS 49816 at *2 (E.D.Cal. Juneth

27, 2008). Similarly, the Attorney Generals 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

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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 (Admissionof 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, Plaintiffs

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.

However, only motions are brought pursuant to Rule 60(b) and independent actions are brought

pursuant to Rule 60(d). Regardless of the label, her claims fail.

Rule 60(b)(3) provides that on motion, the court may relieve a party from a final judgment,

order, or proceeding for fraud... misrepresentation, or misconduct of an opposing party. Fed. R.

Civ. Proc. 60(b)(3). To prevail, the moving party must prove by clear and convincing evidence

that the verdict was obtained through fraud, misrepresentation, or other misconduct and the

conduct complained of prevented the losing party from fully and fairly presenting the defense.

Casey v. Albertons Inc., 362 F .3d 1254, 1260 (9 Cir. 2004). Rule 60(b)(3) is aimed atth

judgments which were unfairly obtained, not at those which are factually incorrect. De Saracho

v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9 Cir. 2000). Rule 60(b)(3) require[s] thatth

fraud...not be discoverable by due diligence before or during the proceedings. Casey, 362 F.3d at

1260. A motion under Rule 60(b)must be made within a reasonable time and no more than a year

after the entry of the judgment or order of the date of the proceeding. Fed. R. Civ. Proc. 60(c)(1).

In Casey, 362 F .3d at 1256, the Ninth Circuit affirmed the one year filing limit for relief from

judgment under Rule 60 is an outer limit, and that waiting until the last possible day was

unreasonable and unjustified.

An independent action under Rule 60(d) should be available only to prevent a grave

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,

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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 (9 Cir.th

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

defendants in that action (i.e., Clerk of the Ninth Circuit Molly Dwyer dismissing her appeal of

dismissal order in 08-2776 PJH). As to Judge Armstrong, her claims are barred by the doctrines

of res judicata and collateral estoppel, discussed above at section III. E. Further, any action

pursuant to Rule 60(b) is untimely, as Plaintiff exceeded even the outer limit of the one-year

filing deadline, filing her action on May 23, 2011 23-24 months after this Courts dismissals in

March-April 2009 and 20 months after dismissal of her appeal on September 30, 2009. Carradero

Decl., Exs. 34,36, 37, 40.

Nor does Plaintiff allege adequate grounds to invoke 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 a fraudulent basis; (3) Ninth

Circuit Clerk Dwyer dismissed Plaintiffs appeal on a fraudulent ground regarding the payment

of the appeal. FAC, 5-7. However, these are nothing more than frivolous quibbles that

Plaintiff has about legitimate actions and rulings taken against her in the processing of her actions,

far from the type of conduct that Rule 60(d) was meant for.

Further, while Plaintiff self labels her allegations as fraud and conspiracy, she has

failed to properly plead such claims. Aguilera v. Pirelli Armstrong Tire Corp., 223 F3d 10109 (9th

Cir. 2000) (elements of fraud); Vieux v. East Bay Regional Park Distr., 906 F2d 1330 (9 Cir.th

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

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facts. Her action is an abuse of Rule 60 and should be dismissed.

H. Plaintiffs 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 factualallegations. Bureerong v. Uvawas, 922 F. Supp. 1450, 1462 (C. D. Cal. 1996);Aulson v.

Blanchard, 83 F.3d 1, 3 (1 Cir. 1996) (noting that a court need not swallow the plaintiffsst

invective hook, line and sinker; bald assertions, unsupportable conclusions, periphrastic

circumlocutions, and the like need not be credited). This particular Court has dismissedpro se

complaints if they are incoherent, nonsensical or delusional. See e.g., Adams v. Vidiera, 2001 WL

277966 (N.D. Cal. Mar. 16, 2001); Stoddard Estate v. Pinkerton Sec. Serv., 1997 WL 732549

(N.D. Cal. Nov. 12, 1997);Spychala v. Gomez, 1994 WL 679889 (N.D. Cal. Dec. 1, 1994). Here,

Plaintiffs complaints are implausible on their face, doing nothing more than retell the same

delusional tale of a grand conspiracy against her. Plaintiffs repeated meritless and non-sensical

filings and motions strongly suggests that it is very unlikely that permitting Plaintiff to amend

her complaint will clarify her claims and the factual basis upon which they rest. Hishon v. King &

Spalding, 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). For the sake of judicial economy, her complaints should be

dismissed with prejudice. See Adams, supra.

IV. CONCLUSION

This action - like the many before it - demonstrate that Plaintiff cannot establish any legal

claim on any set of facts. As there are noplausible grounds to support a claim for relief, the FAC

should be dismissed with prejudice.

Respectfully submitted,

DATED: March 1, 2012 MELINDA HAAGUnited States Attorney

________/s/________________Victoria R. CarraderoAssistant United States AttorneyAttorneys for the United States ofAmerica


Documents

USA's motion to dismiss my action